Date: 19991201
Docket: IMM-2128-99
BETWEEN:
CHANDRAKUMAR THURAIRAJAH
CHANTHIRIKA CHANDRAKUMAR
PRAYANGAA CHANDRAKUMAR (by her Litigation Guardian)
PRESSENNA CHANDRAKUMAR (by his Litigation Guardian)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This application was heard together with the application between the same parties in IMM-6083-98.
[2] The applicants seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Division, dated April 12, 1999 in which the Board ruled that the applicants" claims were abandoned. The Notice dated April 12, 1999 is an amended version of the Notice of Abandonment Decision issued by the Board on November 10, 1998. The only differences in the April 12, 1999 Notice are:
| a) the date of the Notice is April 12, 1999 instead of November 10, 1998. |
| b) the April 12, 1999 Notice states that the applicants appeared at the hearing held on November 2, 1998, while the November 10, 1998 Notice stated that the applicants were not present at the November 2, 1998 hearing. |
The applicants are citizens of Sri Lanka. Another panel of the Convention Refugee Division had ruled in 1992 that the applicants were not Convention refugees. An application for judicial review was made to the Federal Court of Canada (Trial Division) and the Court set aside the Tribunal"s decision and submitted the matter to a different panel of the Convention Refugee Determination Division which is the panel that made the decision dated November 10, 1998.
[3] The hearing of the applicants" claims was scheduled to be heard on September 14, 1998.
[4] On that day when the applicants were getting ready to go to the hearing the applicant Chanthirika Chandrakumar, became dizzy, fell down and got sick. The applicant, Thurairajah Chandrakumar, telephoned his lawyer"s office but no one answered and he left a message on the answering machine. Mr. Chandrakumar did not telephone the Tribunal. It would appear from the materials that Mr. Chandrakumar"s surname and first name became reversed in the style of cause.
[5] The applicants" lawyer did not attend the hearing as he was involved in a motor vehicle accident and as such could not inform the Tribunal. The lawyer did call the case clerk at the Tribunal when he returned to his office. This was followed up by a letter to the Tribunal on September 15, 1998.
[6] The letter dated September 15, 1998 somehow got lost between the sender"s office and its rightful place in the Tribunal"s filing system. The applicants" lawyer forwarded another copy of the letter to the Tribunal.
[7] On the morning of September 14, 1998, the Board waited until 9:05 a.m. for the applicants to appear and then decided to commence abandonment proceedings.
[8] Mr. Chandrakumar testified that he called his lawyer"s office at about 9:00 a.m.. He also testified that he was not sure of the exact time because he was upset about Mrs. Chandrakumar"s illness.
[9] Mr. Chandrakumar also testified that he was unable to attend the hearing at 8:15 a.m. because of Mrs. Chandrakumar"s illness he could not leave the children alone at home with her.
[10] A medical certificate was provided in relation to Mrs. Chandrakumar"s illness but the Board was not satisfied with the explanation given on the medical certificate.
[11] The Board stated that in the absence of the applicants" counsel the Refugee Board might have granted an adjournment if the applicants had been present.
[12] The Refugee Board issued a Notice to the applicants dated October 27, 1998 informing them that a hearing into their failure to attend the hearing on September 14, 1998 would be held on November 2, 1998 at 8:15 a.m.. The Notice also informed them that if they failed to appear the Refugee Division could declare their claims to be abandoned.
[13] The applicants were present with their counsel on November 2, 1998 and were prepared to proceed with the hearing.
[14] The Board held:
| "So, accordingly, the panel is going to recommend to the registrar that the claims to Convention refugee status of the Chandrakumar family be declared abandoned". |
[15] On November 10, 1998 a Notice of Abandonment was issued. This Notice incorrectly stated that the applicants did not attend the November 2, 1998 hearing when they were in fact present.
[16] On April 12, 1999 the Registrar on behalf of the Board issued a corrected Notice of Abandonment which was amended to show that the applicants were in fact present before the Board on November 2, 1998.
ISSUE
[17] Could the Board have issued an amended order to correct the original order to show that the applicants were present at the at the hearing on November 2, 1998.
ANALYSIS AND DECISION
[18] Firstly, I will adopt and order that the reasons given by me in IMM-6083-98 apply in this case with respect to the reasonableness of the Notice of Abandonment.
[19] The remaining issue before me in this application is whether an amended Notice can be issued by the Convention Refugee Determination Division. In this case when it came to the Board"s attention that it had made an error in the Notice dated November 10, 1998 it issued an amended Notice dated April 12, 1999.
[20] The transcript of the hearing held on November 2, 1998 shows that the applicants and their counsel were present on November 2, 1998.
[21] The Notice of Abandonment issued on November 10, 1998 and the amended Notice of Abandonment issued on April 12, 1999 were both issued by the Registrar.
[22] The Registrar made an error in the November 10, 1998 Notice by stating that the applicants were not present when they in fact were present at the hearing.
[23] Pinard, J. in Vitali Koulkov v. The Minister of Citizenship and Immigration
Canada, (F.C.T.D.) IMM-723-98, March 23, 1999, unreported, stated at pages 4 and 5:
| [6] It is clear, therefore, that the first decision was sent out by mere administrative error and did not reflect the intention of the Board. I fail to understand why counsel for the applicant, before me, complained of some kind of manipulation against his client, when both of them were present at the hearing when the Board stated the real reasons in support of its decision to declare the applicant"s claim to have been abandoned. |
| [8] Consequently, even though the first decision was clearly wrong, I find that it was duly amended by a valid second decision. The applicant, therefore, cannot obtain any useful remedy in these proceedings and his application must be dismissed. |
[24] Justice Pinard was dealing with a situation almost identical to the present case. In the Vitali Koulkov, supra, case the decision stated that the applicant was not present at the hearing when in fact he was present and the transcript of the hearing showed he was present.
[25] The transcript of the hearing in the present case shows that the applicants were present. (Application Record, page 35)
[26] I am therefore of the opinion that the amended Notice of Abandonment dated April 12, 1999 is a valid decision which duly amends the Notice of Abandonment dated November 10, 1998.
[27] The application for judicial review application as it relates to the invalidity of the amending decision is not granted but the application for judicial review as it relates to the abandonment of the claims is allowed. That part of the impugned decision will be set aside and a rehearing by a differently constituted panel of the Convention Refugee Determination Division is ordered.
[28] Neither party had a question to submit for certification.
[29] There shall be no order as to costs.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
December 1, 1999
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