Bartha v. Canada (Minister of Citizenship and Immigration), docket IMM-388-00

Date: 20001215

Docket: IMM-388-00

Ottawa, Ontario, this 15^th day of December 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

     CSABA BARTHA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      This is an application to set aside the decision of the Convention Refugee Determination Division ("CRDD") declaring the applicant's claim for refugee status to have been abandoned. Prior to the hearing, applicant's counsel gave notice of the applicant's desire to withdraw his application. The CRDD required the applicant to appear before them and, without giving notice of their intention to do so, ruled that the withdrawal amounted to an abandonment of the claim. The practical effect of the decision is that the applicant lost the right to apply to reinstate his claim if, at a later date, there is a change in the circumstances which led to the withdrawal.

[2]      The applicant came to Canada from Romania in March of 1998 and soon after initiated a claim for refugee status based on his Hungarian ethnicity and political and social associations. Citizenship and Immigration Canada referred his claim to the CRDD on June 3, 1998.

[3]      A little over a year later, but prior to the disposition of his refugee claim, the applicant married a permanent resident of Canada. He soon after applied for permanent resident status as a family class immigrant under the sponsorship of his new wife. He also applied for an exemption from the requirements of subsection 9(1) of the Immigration Act (the "Act") on humanitarian and compassionate (H & C) grounds.

[4]      On January 10, 2000, the applicant had an interview with an immigration official regarding his H & C application. On January 11, 2000, the applicant's lawyer received a facsimile of a letter from Citizenship and Immigration Canada stating that the applicant's H & C request had been granted. On the same day, the applicant's lawyer faxed a letter signed by the applicant to the Registrar of the CRDD withdrawing the applicant's refugee claim.

[5]      A few days later, the applicant's lawyer was notified by the CRDD that the Presiding Member wished the applicant to appear on January 17, 2000, the date scheduled for the applicant's refugee hearing, notwithstanding the applicant's written notice of withdrawal. At the hearing, the Presiding Member acknowledged receiving the applicant's signed withdrawal form, but was apparently concerned that the form was unacceptable. The Presiding Member questioned the applicant as to whether he understood the consequences of withdrawal. The applicant agreed to sign a handwritten form provided by the panel. After accepting this form, the panel made the following determination:

PRESIDING MEMBER: Okay. Nevertheless - - so you as a Claimant, you may withdraw your claim. Nevertheless, the Refugee Division has to take a decision concerning this file. And so you were given a reasonable opportunity to be heard in case you wanted not to withdraw your claim and in putting an end to your request for protection, you are in default in the persecution of your claim. Do you understand so far what I'm talking about?

[6]      During the exchange between the Presiding Member and the applicant's lawyer that followed, the Presiding Member declared, over the objections of counsel, that the claim had been abandoned within the meaning of paragraph 69.1(6)(c) of the Act. In its "Notice of Abandonment Decision", dated February 1, 2000, the panel states,

Pursuant to the Immigration Act, section 69.1(6), the Refugee Division found you in default in the prosecution of your claim and declares your claim to have been abandoned on the 17th day of January, 2000.

[7]      I have little doubt that the applicant left his hearing before the CRDD wondering if a trap had been set for him. He must have asked himself why the panel inquired so closely as to whether he understood the consequences of withdrawal but never disclosed their own clearly defined views of those consequences until after they had his withdrawal in hand. He could be forgiven for wondering why the panel insisted on having him sign a form of withdrawal which they prepared rather than simply accepting his own written notice that he wished to withdraw his claim. After all, if they were unsure that he understood what was happening, their obligation was to provide more information, not to document more adequately a decision they thought he did not understand.

[8]      One must presume that the panel members acted in good faith and with the intention of discharging their statutory duty. It is unfortunate that in doing so, they created a set of circumstances in which their impartiality could be called into question. It is noteworthy that Rule 32 of the Convention Refugee Determination Division Rules (the "Rules") requires that notice of an abandonment hearing must be given before an application can be declared abandoned. Had such a notice been given here, the applicant and his counsel would have known what the panel intended to do. Counsel for the Minister of Citizenship and Immigration (the "Minister") agreed that the failure to give the required notice was grounds for setting the order aside and had offered to consent to an order to that effect and setting the matter down for redetermination.

[9]      When this offer was put to the applicant, his counsel inquired if the CRDD would agree not to treat withdrawals as abandonments in the future. Counsel was advised that no such commitment would be given. If the applicant had agreed to the Minister's offer, the matter would have been remitted to a different panel of the CRDD which could have found once again that the applicant's withdrawal was an abandonment. At that point, the applicant's only remedy would be to apply for leave to begin an application for judicial review in the hope of putting this issue before this Court. Given that it was already before the Court, the applicant saw little advantage in the Minister's proposal.

[10]      The panel gave no reasons for coming to the conclusion which it did with respect to abandonment. However, it did indicate that it was required to make a determination with respect to the claim and that the only determination open to it was abandonment. This echos the conclusions arrived at in the case of A.T.O., [1998] C.R.D.D. No. 120, a decision of another CRDD panel which dealt with this issue. In the absence of reasons from the hearing panel, argument proceeded on the basis that reasons, if given, would have reflected the reasoning in A.T.O.

[11]      The facts of A.T.O. were that the applicant failed to appear at the hearing of her refugee claim. Her lawyer attended and indicated that the applicant was having a baby and could therefore not come to the hearing. The panel adjourned the hearing to a date some distance in the future and gave notice that the question of whether the applicant had abandoned her claim would be before the panel at that time. A short while before the scheduled date, the applicant appointed new counsel who wrote to the CRDD saying that the applicant wished to withdraw her claim. The applicant and her new counsel did not appear at the hearing, apparently believing that counsel's letter would be sufficient to dispose of the matter.

[12]      The panel came to the conclusion that there was no power in an applicant to withdraw a claim because the applicant was not responsible for the CRDD's jurisdiction over the claim:

¶ 20        A careful reading of the Act shows that none of the provisions pertaining to the Refugee Division specifically grants a right to withdraw a claim.    The silence of the Act on this point is no doubt explained by the fact that the Refugee Division does not have jurisdiction over a claim as a result of an application coming directly from the claimant.

¶ 21        The application for protection is made to an immigration officer (s. 44(1)).    If the case is deemed to be eligible, it must be referred forthwith to the Refugee Division.    Since refugee claimants may not bring their claim before the Refugee Division themselves, they obviously cannot remove it from the Refugee Division's jurisdiction either.

[13]      The CRDD then went on to examine the Act and the Rules and concluded that it could only dispose of an application in certain ways:

¶ 29        As we have seen, only the Refugee Division has the power to dispose of a claim, by making a determination in respect of it.    As far as claims under section 69.1 are concerned, the Act only contemplates two possible decisions: the decision regarding determination of refugee status (whether positive or negative), and the decision on abandonment provided for in section 69.1(6).

¶ 30 Since the decision on determination of refugee status is obviously of no use in solving our problem, and since the Refugee Division must in all fairness be able to satisfy a claimant's expressed wish not to pursue his or her claim, the only recourse offered by the Act is the decision on abandonment.

[14]      The panel addressed the fact that Rule 33 of the Rules specifically refers to abandonment of an application. Rule 33 provides as follows:

33. (1) A party may withdraw a claim or application either orally during a hearing or by notice in writing filed at the registry.

(2) The registrar shall forthwith notify in writing the Minister or the person concerned, as the case may be, of any withdrawal of a claim or application.

[15]      This is what the panel had to say about the effect of these words:

¶ 24    The panel is of the opinion, however, that the Rules do not sustain a right to withdrawal.    The Rules are designed to complement and give effect to the hearing procedure contemplated in the Act by spelling out the process for filing documents, necessary information and various applications, for holding hearings and for handing down decisions.    The Rules are procedural in nature, and do not create any substantive law.

¶ 25        A careful reading of Rule 33 shows that it describes when and how a party may state its intention not to pursue a claim or any other application, and what the Registrar must do in such cases.

¶ 26        Rule 33 does not establish a right to withdrawal. It partially stipulates the procedure to be followed by a party and by the Registrar.    The rule does not confer any jurisdiction on the Registrar, because the Act does not do so. The Registrar is therefore not authorized to "close the file", as Mr. Segal would wish.    All that the Registrar can do is to advise the Minister or the claimant, as the case may be, that a notice of withdrawal has been filed with the registry. "Closing the file" would mean disposing of the case, which only the panel may do.

[16]      The inevitable result of this logic is that the CRDD can only deal with withdrawal by means of a declaration of abandonment, after giving the applicant a chance to be heard:

¶ 32        It results from the foregoing that when a claimant gives notice of their intention not to pursue their application for protection, either orally at the hearing or by filing a notice in writing with the registry in accordance with Rule 33, the Refugee Division can only find that the claim has been abandoned under section 69.1(6), which is the only enabling provision in this area.

¶ 33       Under the Act, cases giving rise to a determination of abandonment are limited to three: failure to appear, failure to provide the desired information, and being "otherwise in default in the prosecution of the claim".

¶ 34        The wording of section 69.1(6)(c) makes it possible to dispose of the withdrawal of the claim.    By expressing the intention to withdraw, the claimant clearly indicates that he or she does not intend to prosecute the claim, and the withdrawal thus puts the claimant in default.

     ...

¶ 36        We are of the opinion that when a claimant expresses the desire to withdraw his or her claim orally at the hearing, or when this intention is shown by the filing of a notice with the registry, the claimant is using his or her "opportunity to be heard", within the meaning of the Act.    The claimant makes even more use of this opportunity in stating that he or she no longer wishes to be heard.    In that case, procedural equity does not require application of Rule 32, and the panel may immediately declare abandonment because the withdrawal of the claim is then a fact that may be judicially noticed, on which the panel may base its decision (s. 68(3) and (4)).

[17]      The panel's starting point is that the applicant can no more withdraw a case from the CRDD than he can initiate a case with the CRDD. The difficulty with the panel's analysis is that it confuses screening with ownership. It is true that all who would make a claim for refugee status must address their claim to a Senior Immigration Officer. It is also true that the Senior Immigration Officer refers the matter to the Refugee Division if he/she is satisfied that the applicant is eligible to make such a claim:

44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer.

(2) An immigration officer who is notified pursuant to subsection (1) shall forthwith refer the claim to a senior immigration officer.

46.02 Where a senior immigration officer determines that a person is eligible to have a claim determined by the Refugee Division, the senior immigration officer shall forthwith refer the claim to the Refugee Division in the manner and form prescribed by rules made under subsection 65(1).

[18]      There are lengthy sections of the Act dealing with circumstances which make a person ineligible to make a refugee claim. For example:

46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person

(a) has been recognized as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned;

(b) came to Canada, directly or indirectly, from a country, other than a country of the person's nationality or, where the person has no country of nationality, the country of the person's habitual residence, that is a prescribed country under paragraph 114(1)(s);

(c) has, since last coming into Canada, been determined

(i) by the Refugee Division not to be a Convention refugee or to have abandoned the claim, or

(ii) by a senior immigration officer not to be eligible to have the claim determined by the Refugee Division;

(d) has been determined under this Act or the regulations, to be a Convention refugee; or

(e) has been determined by an adjudicator to be

(i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada,

(ii) a person described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that it would be contrary to the public interest to have the claim determined under this Act,

(iii) a person described in subparagraph 27(1)(a.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, or

(iv) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada.

[19]      The fact that an application must first be screened for eligibility before being referred to the CRDD does not make the application the Senior Immigration Officer's application. It was and remains the applicant's application. The CRDD's jurisdiction does not derive from the fact that the application was forwarded to it by the Senior Immigration Officer. It has jurisdiction because the subject matter of the application is within the exclusive jurisdiction conferred upon the CRDD by the Act. It's jurisdiction over the particular application is simply an instance of its subject matter jurisdiction. The process by which the application gets before the CRDD does not go to the question of jurisdiction.

[20]      In A.T.O., the panel considered that it could only dispose of an application by doing one of the three things which it found in the Act. It can accept the claim, dismiss it or declare it abandoned. Since the applicant asked to withdraw the claim, accepting or dismissing it seemed inappropriate. The only remaining possibility is a declaration of abandonment. Since withdrawing the claim can be seen as a failure to prosecute it, withdrawal constitutes abandonment.

[21]      Counsel for the applicant points out that the Act contemplates a fourth possibility which is that an application may be withdrawn:

28(2) No conditional departure order made pursuant to subsection (1) against a person who claims to be a Convention refugee is effective unless and until

(a) the person withdraws the claim to be a Convention refugee;

         ...

[22]      The Act treats withdrawal differently than it does abandonment. While a conditional departure order becomes effective in the case of both abandonment and withdrawal, withdrawal does not make one ineligible to make a subsequent claim while abandonment does:

46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person ...

(c) has, since last coming into Canada, been determined

(i) by the Refugee Division not to be a Convention refugee or to have abandoned the claim, or ...

[23]      As for the question of default in the prosecution of a claim, it is not self-evident that withdrawing a claim necessarily constitutes a default. It is a deliberate choice to not proceed with the processing of a claim, as opposed to a non-compliance with one of the steps to be taken in the advancement of the claim. There is no public policy reason, as there is with respect to criminal complaints for example, why the applicant should not be allowed to withdraw a claim.

[24]      The panel in A.T.O. took the view that it had no alternative but to declare an application abandoned where there was a withdrawal. See paragraph 32 cited above where the panel concludes that when notice of withdrawal is given "the Refugee Division can only find that the claim has been abandoned under subsection 69.1(6) of the Act, which is the only enabling provision in this area."

[25]      At the hearing of this matter, counsel for the Minister took the position that the panel in A.T.O. merely meant that it retained jurisdiction to consider whether it would recognize the withdrawal or whether it would treat it as an abandonment. With respect, the words used in A.T.O. do not reasonably bear that interpretation. Counsel says that the retention of jurisdiction permits the panel to deal with the situation where an applicant, sensing that his hearing is not going well, purports to withdraw his application in mid-hearing in the hope of getting a more sympathetic panel in the future.

[26]      There are at least two responses to such a strategy. Whatever else a "default in the prosecution of a claim" might mean, one cannot foreclose the possibility that it might include a deliberate failure to continue with a hearing already in progress. The fact that a claimant might call such a course of action a withdrawal would not necessarily preclude a finding by the hearing panel that the application had been abandoned. In any event, the Rules make clear that an application which has been withdrawn can only be reinstated upon application to the CRDD. It would be entirely within the CRDD's powers to refuse to reinstate an application which was withdrawn under those circumstances. As a result, recognizing a right of withdrawal, even in the middle of a hearing, would not give the applicant the right to shop for a more sympathetic panel.

[27]      Counsel also raised the hypothetical case of an applicant who chose to withdraw his/her application as a result of coercion, presumably from abroad. Counsel argued that the CRDD needed to retain jurisdiction in the face of a purported withdrawal in order to be able to inquire into the voluntariness of the withdrawal and to refuse it if the circumstances showed it was not voluntary.

[28]      As long as the CRDD is prepared to give effect to the power of reinstatement, the question of coercion is not an issue. Those who did not wish to give in to the coercion would continue with their application and use the coercion as evidence of the probability of persecution in their country of origin. The CRDD's refusal to accept a withdrawal does not compel an applicant to proceed with the application. If the applicant did not proceed, what would the CRDD do? Would it treat the application as withdrawn? If so, why not simply accept the withdrawal in the first instance. Would it treat it as abandoned? If so, it would knowingly be punishing the applicant for giving in to coercion. The better course is to accept the withdrawal and to leave it to the applicant to establish coercion if he/she attempts to reinstate the application at a later date.

[29]      It is important to note that whether an application for refugee status is dismissed, withdrawn or abandoned, the result is the same from the point of view of eligibility for deportation. The conditional departure order which is made at the time the claim is referred to the CRDD becomes enforceable in all three cases:

28(2) No conditional departure order made pursuant to subsection (1) against a person who claims to be a Convention refugee is effective unless and until

(a) the person withdraws the claim to be a Convention refugee;

(a.1) the person is determined by a senior immigration officer not to be eligible to make a claim to be a Convention refugee and has been so notified;

(b) the person is declared by the Refugee Division to have abandoned the claim to be a Convention refugee and has been so notified;

(c) the person is determined by the Refugee Division not to be a Convention refugee and has been so notified; or

(d) the person is determined pursuant to subsection 46.07(1.1) or (2) not to have a right under subsection 4(2.1) to remain in Canada and has been so notified.

     emphasis added

[30]      A claimant does not obtain a tactical advantage by withdrawing a claim. The conditional departure order becomes enforceable according to its terms. For that reason, most withdrawals would only occur where an applicant, as was the case here, had secured the right to remain in Canada in some other way. This is also why the right to apply for reinstatement is significant since it allows the refugee claim to be reactivated if, for some reason such as withdrawal of sponsorship, the applicant's right to remain in Canada is once again put into question. There is no reason in principle why these possibilities should be curtailed by a restrictive interpretation of the CRDD's jurisdiction to deal with the withdrawal of an application.

[31]      For those reasons, the CRDD's order declaring the applicant's claim for refugee status to be abandoned is set aside. It follows from these reasons that there is nothing to remit to the CRDD for rehearing since the application for refugee status has been withdrawn.

[32]      Each party requested that I assess costs against the other, arguing that there exists special reasons, as contemplated by section 22 of the Federal Court Immigration Rules. The Minister argues that the special reasons arise from the applicant's refusal to accept her offer to consent to an order sending the matter back to the CRDD. The applicant was fully justified in refusing to agree to the Minister's offer. The applicant argues that the CRDD's conduct justifies an award of costs. While the process by which the CRDD disposed of this claim left something to be desired, it would have been entitled on the basis of the decision in A.T.O. to come to the conclusion which it did. As a result, the applicant may have incurred the costs of an application for judicial review in any event. Furthermore, the Court's disposition of this matter will spare him the cost of a re-hearing so that in the end result the applicant is no worse off than he might have otherwise been. To the extent that the request for costs is a request that the Court express its disapproval of the procedure followed by the panel which heard this claim by ordering costs, I decline to express my disapproval in that way.

ORDER

     For the reasons stated above, the application to set aside the decision of the CRDD is granted.

                                 "J.D. Denis Pelletier"

     Judge