Date: 20000405
Docket: IMM-3149-99
BETWEEN:
AI JING DING
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] By a decision of the Immigration and Refugee Board (the "IRB"), the applicant"s claim for refugee status was declared abandoned, and a subsequent application to re-open the claim was refused. The present application for judicial review challenges the latter decision.
A. Background
[2] On May 20, 1999, an Abandonment Hearing was held before the IRB concerning the applicant"s refugee claim. The transcript of the hearing discloses the following oral statement by the presiding member:
| The claimant Ai Jing Ding is not present. Reviewing the file, the panel notes that the claimant"s counsel is Shelly Levine. However, there"s no information concerning the claimant"s counsel either. She is not present. |
| The purpose of today"s hearing is to determine the reason for the claimant"s failure to submit his Personal Information Form within the 28 days after the date on which he was served with the form. The form was served on the 10th of February. The file indicates that the PIF was received by the Registry on the 7th of May, 1999. |
| Why the claimant did not submit his PIF within the 28 days, as required, is a question that we cannot find an answer to due to the absence of the claimant. The fact that the claimant did not submit his form within 28 days led the CRDD to initiate abandonment procedures. |
| Furthermore, the panel notes that the claimant was convened to appear before the assignment court on the 29th of March, 1999. The claimant was not present on that date. The absence of the claimant led the panel also to initiate abandonment procedures. |
| Once again, due to the claimant"s absence at today"s hearing, we are unable to ask nor receive information concerning the claimant"s absence from the assignment court.1 |
[3] As a result, a Notice of Abandonment was issued dated May 20, 1999, declaring that the applicant"s claim had been abandoned on May 12, 1999. Further, as a result, on May 20, 1999, the applicant applied to the IRB to re-open the claim for refugee status, and in support the applicant swore an affidavit containing the following uncontradicted information:
| 6. I am further advised, and do verily believe, that Mr. Levine [the applicant"s counsel] contacted the Montreal IRB office at or around 10:00 a.m. on the morning of May 12, 1999 in order to make inquiries regarding my file. |
| 7. I am advised, and do verily believe, that upon speaking to various clerks Mr. Levine was finally able to ascertain that a Ms. Aida Carribean was the Case clerk handling my file. |
| 8. I am advised, and do verily believe, that Mr. Levine was provided with Ms. Carribean"s direct phone number and left a detailed message on her voice mail, requesting that she contact my counsel as soon as possible in order to discuss my file. |
| 9. I am further advised, and do verily believe, that upon not receiving a response Mr. Levine again left a second message, prior to the time of my hearing, requesting information about my file. |
| 10. I am advised, and do verily believe, that Mr. Levine was finally able to speak with Ms. Carribean on or around the noon hour prior to my hearing which was scheduled to take place at 12:45 on the afternoon of May 12, 1999. |
| 11. I am further advised, and do verily believe, that Mr. Levine advised Ms. Carribean in that phone call that he wished to know the status of my file. Mr. Levine was advised that the status had not yet been determined. |
| 12. I am further advised, and do verily believe, that Mr. Levine expressly indicated to Ms. Carribean that he would be happy to "speak to the matter" in the event the Panel members required further information as to the issue of my intent to pursue my refugee claim. |
| 13. I am advised, and do verily believe, that Ms. Carribean indicated to Mr. Levine that the matter would be decided at the Abandonment hearing and that she would contact Mr. Levine"s office as soon as she had any further information.2 |
[4] In refusing the application to re-open, the adjudicator gave the following reason3:
| négligence dans la conduite de la reconsidération (negligence in the conduct of reconsideration) |
B. Analysis
[5] The present judicial review concerns the refusal to re-open. With respect to the IRB"s jurisdiction to make such a determination, in Gill v. Canada (Minister of Employment and Immigration)4 the following statement of Le Dain J. in Woldur v. Minister of Manpower & Immigration5 was quoted with approval:
| Notwithstanding the general principle, affirmed in the Lugano case, that an administrative tribunal does not have the power, in the absence of express statutory authority, to set aside its decision, there is judicial opinion to suggest that where a tribunal recognizes that it has failed to observe the rules of natural justice it may treat its decision as a nullity and rehear the case. See Ridge v. Baldwin, [1994] A.C. 40 at p. 79; [1968] S.C.R. 330">R. v. Development Appeal Board, Ex Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330 at p. 340. |
[6] Thus, since the only jurisdiction open to the IRB on an application to re-open is to consider whether a breach of natural justice has occurred, it is agreed that it follows that to fail to recognize a breach of natural justice when it exists constitute reviewable error.
[7] In the present case, the panel conducting the Abandonment Hearing wanted answers to pertinent questions which failed to be supplied. I find that the cause of this failure was a breakdown in the IRB"s own hearing process, and not the fault of the applicant or his counsel.
[8] With regard to this fact, the respondent relies upon the following statement of Hugessen J.A. in Aubut v. Minister of National Revenue6 cited by Joyal J. in Perez v. Canada (Solicitor General)7 to argue that no breach of due process arises as a result:
| When a party fails to appear before a court, it is the duty of the court to determine whether he or she was really advised of the date and place of the sitting. But the court"s duty goes no further than that. The court is not obliged to conduct a sort of in-house investigation to determine the possible reasons for his absence. On the contrary, it is entitled to expect that parties will keep properly given appointments. If a party fails to appear, it is for the party, and not the court, to put forward his explanations or excuses, if there be any. |
[9] However, the situation in the present case falls outside the mere failure of the applicant to appear at the Abandonment Hearing. In the present case, counsel for the applicant advised the IRB through the administrative officer directly responsible for the case concerned that answers could be supplied by counsel if required. I find that the failure of this fact being communicated to the panel conducting the Abandonment Hearing, in particular, given the presiding member"s express desire for information, worked to the unwarranted prejudice of the applicant, and as such, constituted a breach of natural justice.
[10] Therefore, I find that IRB"s refusal to re-open was made in reviewable error.
ORDER:
[11] Accordingly, the refusal to re-open is set aside and the matter is referred to the IRB for reconsideration. I hereby direct that the options available on the reconsideration, in conformity with these reasons, are either to rehear the issue of abandonment or to hear the refugee claim itself.
"Douglas R. Campbell"
J.F.C.C.
TORONTO, ONTARIO
April 5, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: AI JING DING |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: MONDAY, APRIL 3, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
DATED: WEDNESDAY, APRIL 5, 2000
APPEARANCES: Mr. Shelley Levine
For the Applicant
Mr. James Brender
For the Respondent
| SOLICITORS OF RECORD: Levine Associates |
Toronto, Ontario
Morris Rosenberg
Deputy Attorney General of Canada
Date: 20000405
Docket: IMM-3149-99
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Tribunal Record, p. 52.
2 Tribunal Record, pp. 25-27.
3 Tribunal Record, p. 15.
4 [1987] 2 F.C. 425 (F.C.A.).
5 [1978] 2 F.C. 216 (F.C.A.) at 219.
6 126 N.R. 381, at 383.
7 93 F.T.R. 256.
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