Date: 20000117
Docket: IMM-365-99
Between:
GURDEV SINGH POWAR, 8670 Stuart, apartment 105,
Montreal, Quebec, H3N 2S6,
Applicant,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, c/o
Justice Department, Guy Favreau Complex, 200 West René-Lévesque,
East Tower, 5th Floor, Montreal, Quebec, H2Z 1X4,
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (Act) of a decision by Mr. Joel Moss, member of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated October 22, 1998 wherein the applicant was declared to have abandoned his claim for refugee status.
[2] The applicant seeks an order setting aside the decision of the Board and referring the matter back for consideration before a newly constituted panel of the Refugee Division.
[3] The applicant further applies for an extension of time pursuant to subsection 82.1(5) of the Act.
FACTS
[4] The applicant, a native of India, was born on May 30, 1975.
[5] The applicant fled India, fearing persecution for his political opinions, and arrived in Canada on November 11, 1997 claiming refugee status immediately.
[6] The applicant was notified on June 15, 1998 that his hearing was scheduled for August 18, 1998. At the hearing, the applicant testified that he had suffered cruel treatment, including electric shocks, while imprisoned in India and that this caused him to suffer a neurological condition.
[7] After hearing part of the applicant"s testimony, the Board found that the applicant had made several contradictions on the subject of the torture he suffered in India, although prior to this the Board found that he had been testifying with some credibility.
[8] At the request of applicant"s counsel, the hearing was adjourned so that medical expertise could be obtained to determine whether or not the inconsistencies in the applicant"s testimony could be due to the torture trauma or shock treatment that he is alleged to have suffered.
[9] The hearing was rescheduled for Wednesday, September 23, 1998 at 1:15 p.m.so that medical expertise could be obtained on the applicant"s neurological condition in order for the Board to determine the relevancy of the applicant"s condition to the contradictions in his testimony.
[10] Counsel for the applicant sent a letter, following the hearing on August 18, 1998, to Dr. Cornaceae explaining the situation and requesting that he refer him to a neurosurgeon or some other medical expert who would be able to assess the applicant and determine whether it was possible that the claimant"s contradictions were due to the torture he is alleged to have suffered.
[11] Dr. Cornaceae undertook to call the applicant and arrange a referral with a specialist to determine and evaluate the nature of his condition.
[12] Counsel for the applicant did not hear from Dr. Cornaceae again nor did he hear from the claimant after the hearing on August 18, 1998.
[13] The applicant was never sent a notice informing him that the hearing was rescheduled for September 23, 1998 because he was present at the hearing in August when this date was agreed upon by the parties.
[14] The applicant did not attend the hearing on September 23, 1998. Counsel for the applicant was unable to give an answer as to why his client did not appear at the hearing as he had not spoken with him since the earlier hearing on August 18, 1998.
[15] The Refugee Division adjourned the proceedings and set a date of October 20, 1998 to reconvene in order to give the claimant an opportunity to explain why he is in default and to determine whether the case could continue to be heard that day or if another date should be scheduled.
[16] The claimant did not appear at the hearing on October 20, 1998, nor did his counsel.
[17] The adjudicator, Mr. Joel Moss, was given no explanation for the absence of the applicant at the hearing, or the absence of his counsel, and thus declared that the case had been abandoned.
[18] Counsel for the applicant was informed on the morning of the hearing for abandonment, October 20, 1998, that his client"s claim had just been pronounced abandoned due to the fact that neither he nor his client had appeared at the hearing at the time it was called for.
[19] Counsel for the applicant then received the Notice of Abandonment decision of October 22, 1998 in the mail, but did not thoroughly read this notice as his client had already decided to make a Motion for Reinstatement of his claim to the Refugee Board.
[20] The Motion for Reinstatement was rejected on December 24, 1998.
THE DECISION OF THE BOARD
[21] At the hearing scheduled for October 20, 1998, the adjudicator stated the following:
| ...Claimant is not present. Maître Bertrand is not present. It"s now 8:50 and the Hearing was specifically set for 8:30 a.m. Present to interpret is Mr. Bullar (phonetic) although it doesn"t look like he"ll be doing any interpreting for this Hearing. Also present is Maître Corleane (phonetic), Refugee Hearing Officer, who was not part of this case before. |
| Just a brief history for the record: This case was first heard on August 18, 1998, and Mr. Bullar was interpreting at that time. The claim was...we heard this case in the afternoon. Claimant ran into some serious contradictions and mistakes in his testimony. At the request of Maître Bertrand, and after consideration, the panel agreed to his request. |
| Maître Bertrand discussed with his client and the request was that we adjourn and give the client a chance to see if there was some medical, psychological or psychiatric explanation that would explain how it is that he testified somewhat credibly around his background, but when it came to the traumatic issues he did not. It"s mentioned: " Significant contradictions and errors ". |
| Given the fully expressed agreement and understanding of the Claimant to this issue, the panel agreed to this request and a Hearing was set for September 23, 1998, in order to hear and review any new medical evidence that might be brought. |
| The Claimant did not show up at that Hearing; Maître Bertrand was present. Maître Bertrand indicated at that Hearing that he had spoken with doctor Cornaceae (phonetic) about this issue, and doctor Cornaceae had undertaken to speak with the Claimant to arrange an appropriate referral for evaluation. Maître Bertrand had not heard further from the Claimant, and the Claimant had been present when we had set the date for the hearing. |
| And as for today"s Hearing, the Claimant is not present, Maître Bertrand is not present. I have no explanation, and therefore the panel has no alternative at this point but to declare this case abandoned. |
ISSUES
[22] The following question arises from this application:
| Was the decision of the Board unreasonable, arbitrary, or based on irrelevant considerations? |
POSITIONS OF THE PARTIES
Applicant"s Submissions
[23] The applicant submits that he heard the interpreter say that the hearing was postponed until December 23, 1998 and this is the reason he was not present at the hearing on September 23, 1998.
[24] The applicant further submits that he received notice of the hearing for abandonment scheduled for October 20, 1998 and he went to the building where it was being held. He sat at one of the tables, across the window doors from the actual reception, and waited to be called.
[25] The applicant acknowledges that he never went to the reception to let them know he was present. He alleges that he arrived at the building in Montreal at 8:30 a.m. and the hearing was scheduled for 9 a.m.
[26] It is further submitted that the applicant, having been informed through his counsel on October 20, 1998 that his claim had been declared abandoned, chose to make a Motion for Reinstatement to the refugee Board even before having received the Notice of Decision of Abandonment in the mail.
[27] The applicant argues that the decision to abandon is based on a factual error, namely the fact that the applicant did not appear at the hearing on August 28, 1998. In fact, the applicant testified for more than three hours at that hearing.
Respondent"s Position
[28] Firstly, the respondent argues that an extension of time is not justified in the circumstances as the applicant"s counsel was informed on October 20, 1998, the very day of the decision by the Board, that his client"s claim had been abandoned. According to the evidence, he then informed the applicant, on the same day, of the decision to abandon his claim.
[29] The respondent acknowledges that the written reasons of the Board do contain a clerical error in the statement that the applicant was not present at the hearing on August 18, 1998 which should have read September 23, 1998, which was when the applicant was not present.
[30] It is submitted that the applicant should not be able to rely on this clerical error given his absence at the last two hearings scheduled to review his claim and his inability to explain these absences.
[31] Lastly, the respondent argues that the applicant has presented no basis for reviewing the decision of the Board as they have not demonstrated that the Board"s decision was unreasonable or that there was any error of law, and thus no interference by the Court is warranted.
ANALYSIS
[32] Immediately after counsel for the applicant finished his submissions, I dismissed the application.
[33] The facts of this application are very simple. I will grant the request for an extension of time as it does not prejudice the respondent and focus directly on the merits of the application. This application raises only one issue for this Court to consider: was the Board"s decision reasonable given the evidence before it for consideration?
[34] Paragraph 69.1(6)(c) of the Act reads as follows:
| (6) Where a person who claims to be a Convention refugee
(a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim,
(b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or
(c) in the opinion of the Division, is otherwise in default in the prosecution of the claim, the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned and, where it does so, the Refugee Division shall send a written notice of its decision to the person and to the Minister.
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(6) La section du statut peut, après avoir donné à l'intéressé la possibilité de se faire entendre, conclure au désistement dans les cas suivants_:
a) l'intéressé ne comparaît pas aux date, heure et lieu fixés pour l'audience;
b) l'intéressé omet de lui fournir les renseignements visés au paragraphe 46.03(2);
c) elle estime qu'il y a défaut par ailleurs de sa part dans la poursuite de la revendication.
Si elle conclut au désistement, la section du statut en avise par écrit l'intéressé et le ministre.
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[35] Section 32 of the Convention Refugee Determination Division Rules is also relevant to this application. It states:
| 32(1) Before declaring a claim to have been abandoned pursuant to subsection 69.1(6) of the Act or an application to have been abandoned pursuant to subsection 69.3(2) of the Act, the Refugee Division shall serve on the parties a notice to appear directing them to attend a hearing on the abandonment.
(2) The notice to appear shall also inform the parties that where, at the end of the hearing concerning an abandonment, the Refugee Division does not declare the claim or application to have been abandoned, the Refugee Division will forthwith commence or resume the hearing into the claim or application.
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| 32. (1) Avant de conclure au désistement d"une revendication ou d"une demande conformément aux paragraphes 69.1(6) ou 69.3(2) de la Loi, la section du statut signifie aux parties un avis de convocation, les convoquant à une audience relative au désistement.
(2) L"avis de convocation signale aussi aux parties que, si la section du statut ne conclut pas au désistement au terme de l"audience relative au désistement, elle commencera ou reprendra sans délai l"audience relative à la revendication ou à la demande.
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[36] The facts illustrate that the applicant in this case received the notice of hearing regarding the abandonment of his claim and that he did not appear at that hearing.
The applicant was given two opportunities to present his case at hearings and he was absent from both. This suggests an obvious lack of interest on the part of the applicant.
[37] I find the comments of Hugessen J. A. in Aubut v. Minister of National Revenue, 126 N.R. 381 at page 383 relevant to this application. He states:
| How can it be argued that the applicant in this case did not have a reasonable opportunity to be heard? He was properly notified of the date and place of the hearing. His counsel was present and was able to make representations on his behalf. If his presence was necessary to the success of his appeal, then he should have been present and ordinarily he must bear the consequences of his absence. |
| 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, not the court, to put forward his explanations or excuses, if there be any. |
[38] I am satisfied that the applicant was formally notified of the abandonment hearing set for October 20, 1998 as was his counsel. Given the importance of such a hearing to the applicant, I cannot accept his explanation that he went to the building where the hearing was taking place and did not present himself at the reception or ask anyone where his hearing was taking place. This is incomprehensible.
[39] As for his counsel, no valid explanation has been offered for his absence at the hearing on October 20, 1998 after having agreed to this date at the hearing on September 23, 1998.
[40] In Fetni v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 349, the scope of review of a decision by the Refugee Division to declare that an applicant had abandoned his claim was considered by Pinard J. at paragraph 4 as follows:
| In the case at bar, it is not disputed that the applicant received the notice of hearing concerning the abandonment of his claim. In addition, the transcript of the hearing of March 5, 1996 shows that the Board members allowed the applicant to show cause with respect to his absence on February 8, 1996, thereby affording him an opportunity to try to satisfy them that there were valid reasons why they should not declare the claim to have been abandoned. |
| [...] It thus appears that there has been full compliance with the applicable Act, that there has been no breach of the principles of fundamental justice and that the Board committed no error of law. In terms of the facts, it is not for this court to substitute its assessment thereof for the assessment of the Refugee Division, which is a specialized tribunal, when, as in this case, the applicant has failed to establish that the decision in issue was patently unreasonable because it was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it. |
| More specifically, I am not satisfied that it was unreasonable for the Board, after considering all of the evidence, including the psychological report filed by him, to reprove the applicant for failing to do whatever he needed to do "to ensure that he did not forget his hearing date." |
[41] Applying this reasoning to the facts of the case at a bar, I find that the factual error of the Refugee Division in the statement that the applicant was not present at the hearing on August 18, 1998 was merely a clerical error and cannot be now used as a means for the applicant to be given another opportunity to have the merits of his case reviewed.
[42] The Refugee Division rendered judgement after having provided the claimant with three opportunities to present his case. He appeared at only one, and neither he nor his counsel appeared at the abandonment hearing. This is totally inexcusable.
[43] I am satisfied that there has been no breach of the principles of natural justice and no error of law and therefore the application is dismissed.
[44] Counsel for the applicant has submitted the following three questions for certification as he believes that pursuant to section 83(1) of the Act they are serious questions of general importance.
| 1. Section 83(1) Immigration Act |
| Serious question of general importance |
| Can there be "no alternative ... but to declare [a refugee] case abandoned" when Section 69.1(6) of the Immigration Act says that the Refugee Division "may ... declare the claim to have been abandoned"? |
| 2. Pushpanathan vs. Canada, [1998] 1 R.C.S., p. 1001 |
| Serious questions may not be of general importance but that may be revisited by the Court of Appeal given the wider scope of appeals since the Pushpanathan decision, the whole with all due respect |
| Isn"t the conclusion "I have no explanation" a mistake of facts if it pertains to the first absence of September 23rd, given it was explained at the lawyer"s letter of October 5th (the Tribunal is not bound by the regular rules of evidence and acts summarily); and a mistake of law, if it pertains to the second absence of October 20th, since the claimant was entitled to "a reasonable opportunity to be heard" about this second absence as well, which he never had? |
| 3. Given (1) the nature of the rights, (2) the past behaviour of claimant, (3) the nature of the underlying problem and (4) the Board clearly having alternatives (the law says it "may"); can he conclusion "I have no alternative" be construed as no more than one way to say "I have a choice of actions but decides to pronounce the abandonment", or can"t it suggest the Board was unaware of the extent of its jurisdiction? |
[45] I am prepared to certify the first question as I believe that this question can be considered a question of general importance.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
January 17, 2000
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