Handjiev v. Canada (Minister of Citizenship and Immigration), docket IMM-1331-98

Date: 19990209

Docket: IMM-1331-98

BETWEEN:

     DENNIS HANDJIEV

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     ORDER AND REASONS FOR ORDER

EVANS, J.:

[1]          This is an application for judicial review brought by Dennis Handjiev (hereinafter "the applicant") under section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7 [as amended] against the Minister of Citizenship and Immigration (hereinafter "the respondent").

[2]          The applicant seeks to have set aside for error of law a decision of the Immigration and Refugee Board (Appeal Division) (hereinafter "the Board"), dated May 14, 1998, dismissing a motion under subsection 32(3) of the Immigration Appeal Division Rules SOR 93-4 [as amended] (hereinafter "the Rules") to reopen a decision declaring the applicant's appeal to the Board to be abandoned that had been made by the Board on March 13, 1997 under section 76 of the Immigration Act R.S.C. 1985, c. I-2.

[3]          The applicant, a citizen of Bulgaria, was admitted to Canada in 1982 as a sponsored refugee. He was ordered deported in December 1994 on the basis of his criminal convictions in Canada. He appealed against the deportation order to the Board, which granted a conditional stay of execution of the order in October 1995 in the exercise of its "equitable" jurisdiction under paragraph 70(1)(b) of the Immigration Act. The conditions required, among other things, that the applicant report to the Board at six monthly intervals, and deal with outstanding criminal matters.

[4]          Without any explanation the applicant failed to appear at the continuation hearing scheduled for October 16, 1996, and the representative of the respondent requested the dismissal of the appeal. The Board refused this request on the ground that the applicant should first be heard; the hearing of the motion to dismiss, of which the applicant was duly given notice, was rescheduled for January 21, 1997.

[5]      On December 1996 the applicant was convicted of fraud and imprisoned: nonetheless, he appeared for the hearing in January, but without counsel. At the hearing, the presiding member told the applicant that he had to inform the Board of his whereabouts "no matter where it is that you're transferred to and you're going to speak with your lawyer, if you decide to go that route, and in any event at 9 o'clock on the 15th of April you're going to be in front of me ...".

[6]      On the basis of letters written on behalf of the applicant by the lawyer who had represented him in criminal proceedings, but who had not been retained in this matter, the Board rescheduled the hearing for September 17, 1997. The applicant failed to appear at this hearing, again without either any explanation, or any prior contact with the Board by the applicant or on his behalf. As a result, the Board made an order on November 13, 1997 declaring the appeal abandoned under section 76 of the Immigration Act, because of the applicant's wilful or reckless failure to appear as requested by the Board. Section 76 provides:

76. Where a person against whom a removal order or conditional removal order has been made files an appeal against that order with the Appeal Division but fails to communicate with the Appeal Division on being requested to do so or fails to inform the Appeal Division of the person's most recent address, the Appeal Division may declare the appeal to be abandoned.

76. Faute pour l'appelant d'entrer en communication avec elle, sur son ordre, ou de lui faire connaître sa dernière adresse, la section d'appel peut, dans le cas d'un appel relatif à une mesure de renvoi ou de renvoi conditionnel, conclure au désistement d'appel.

[7]      On December 30, 1997 the applicant filed a motion under subsection 32(3) of the Rules, which provides:

This motion was heard by the Board on July 26, 1998: this time the applicant appeared and was represented by counsel at this hearing.

[8]      In her reasons for decision, the presiding member carefully reviewed the history of the applicant's dealings with the Board, including the warnings and adjournments issued to him, and his failure to attend scheduled hearings on two occasions. She noted also that the applicant had been in contact with several lawyers at different times in connection with this and other matters, and had had ample opportunity to retain counsel prior to the hearing scheduled for September 17, 1997: moreover, he had on occasion satisfactorily represented himself before the Board. She also considered the fact that the applicant was incarcerated at the time of the scheduled hearing. On these facts, she concluded that the applicant had not demonstrated sufficient reasons for reopening the appeal.

[9]      On the application for judicial review counsel argued that, in concluding that these facts did not constitute sufficient reasons to reopen, the Board had erred in law. However, he was unable to identify any erroneous legal principle on which the Board had proceeded, nor any considerations that the Board ought either to have considered or to have ignored. Nor did he contend that the Board's refusal to reopen could be characterized as unreasonable or procedurally unfair. Finally, counsel did not challenge the validity of the order made by the Board declaring the appeal abandoned, or the procedural fairness of the hearing of the abandonment motion.

[10]      Rather, his argument was that the Board had erred in law by giving insufficient weight to some facts and by misapplying the statutory standard, "sufficient reasons", to the facts found. In particular, he noted that the applicant had stated in his affidavit that after he was incarcerated in September 1997, and before his scheduled transfer to Edmonton on September 11, 1997 he had left telephone messages at his lawyer"s office asking him to advise the immigration authorities that the applicant would be unable to attend the hearing on September 17, 1997.

[11]      Believing that the lawyer would act on these requests, the applicant thought it unnecessary to contact the Board himself. In these circumstances, counsel argued, the Board ought to have given more weight to the fact that the applicant had tried to ensure that the Board was contacted. Counsel also contended that the Board's conclusion demonstrated that it had attached too little weight to the fact that the applicant was incarcerated before and at the time when the hearing was scheduled, thus making it particularly difficult for him to contact the Board.

[12]      In my opinion, when determining whether the facts found constitute "sufficient reasons" for reopening an appeal, the Board is not required to be "correct" in order to avoid committing an error of law. The application of this open-textured phrase obviously requires the Board to consider and weigh all the relevant facts before it, a function that lies within its specialized jurisdiction. It is not the function of the Court on an application for judicial review to reweigh these facts and substitute its view for that of the Board on whether they amount to "sufficient reasons" to reopen. This is a decision entrusted by Parliament to the Board.

[13]      I would only add that there was no evidence that, when incarcerated in September 1997, the applicant was prevented from telephoning the Board to inform it of his situation. And since the applicant had been told specifically by the Board to keep in contact, it was not reasonable for him merely to leave a message for his lawyer without speaking to him directly. In the absence of any evidence that the Board proceeded upon some erroneous legal principle or reached a conclusion on the facts that was patently unreasonable, the Board's decision was not erroneous in law.

[14]      For these reasons, the application for judicial review is dismissed.

[15]      Counsel for the applicant requested that a certify question pursuant to subsection 83(1) of the Immigration Act as to whether the facts that a person was incarcerated and was not represented by counsel constitute "sufficient reasons" under subsection 32(3) of the Rules so that the Board must reopen an appeal.

[16]      In my view this question does not meet the statutory criterion, as elaborated in the jurisprudence, because how it is answered in any given case will depend on an examination of all the circumstances of that case, a matter that is primarily within the Board"s discretion. In other words, the answer given to the question in one case will normally be of only limited value in others. Accordingly, I decline to certify the question proposed, or any other.

OTTAWA, ONTARIO      John M. Evans

February 9, 1999.      J.F.C.C.