Date: 19971201
Docket: IMM-4244-96
OTTAWA, ONTARIO, THE 1ST DAY OF DECEMBER 1997.
Present: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
Between:
JULIO LUIS SOTO IBACACHE,
STEFHANY BEATRI SOTO HERRERA,
ANGELINA STELIA SOTO HERRERA,
MARJORIE ANDREA SOTO HERRERA,
AIDA STELIA HERRERA FUENTES,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
Traduction certifiée conforme
C. Delon, LL.L.
Date: 19971201
Docket: IMM-4244-96
Between:
JULIO LUIS SOTO IBACACHE,
STEFHANY BEATRI SOTO HERRERA,
ANGELINA STELIA SOTO HERRERA,
MARJORIE ANDREA SOTO HERRERA,
AIDA STELIA HERRERA FUENTES,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division dismissing the applicants" motion to reopen their claim.
[2] The applicants are citizens of Chile. They arrived in Canada on May 9, 1996 and immediately claimed refugee status. An immigration officer gave them their personal information forms (PIFs) to complete and a notice directing them to appear at a hearing into their claim on July 17, 1996.
[3] As of July 3, 1996, the applicants had not yet sent the Refugee Division their PIFs.1 On the basis of paragraph 69.1(6)(b) of the Immigration Act2 (the Act), the Refugee Division, without directing them to attend a hearing, declared their claim to have been abandoned. It did not serve a notice to appear on them because it did not have either their address or the name of their legal representative.
[4] On August 3, 1996, the applicants filed a motion to reopen their claim. They argued that the Division could not avoid serving on them a notice to appear at a hearing on the abandonment because they were entitled to be heard.
[5] The Refugee Division refused to reopen the case. It found that the registry"s obligation to serve a notice to appear on the applicants could be waived since the applicants had [translation ] "failed to meet their obligation to provide their address, the name of their legal representative and their completed personal information forms" and since there was no other method by which they could have been notified. The Division rejected the service by publication method suggested by the applicants on the ground that it would have violated the duty to keep their claim confidential.
[6] Subsection 69.1(6) of the Act sets out the circumstances in which the Refugee Division may declare a claim to have been abandoned:
| 69.1(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, |
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| (b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or |
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| (c) in the opinion of the Division, is otherwise in default in the prosecution of the claim, |
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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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69.1(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; |
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| b) l"intéressé omet de lui fournir les renseignements visés au paragraphe 46.03(2); |
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| c) elle estime qu"il y a défaut par ailleurs de sa part dans la poursuite de la revendication. |
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Si elle conclut au désistement, la section du statut en avise par écrit l"intéressé et le ministre.
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[7] Subrule 32(1) of the Convention Refugee Determination Division Rules3 (the Rules) requires the Division to serve a notice to appear on the party concerned before declaring the party"s claim to have been abandoned:
| 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.
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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.
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[8] Although the obligation to serve is expressly set out in the Rules, it is my view that the obligation is not absolute. Applicants can waive service implicitly by being negligent. Rules 39 and 40 authorize the Refugee Division to waive a requirement set out in the Rules:
| 39. These Rules are not exhaustive and, where any matter that is not provided for in these Rules arises in the course of any proceeding, the Refugee Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously.
40. Where a party or a refugee hearing officer does not comply with a requirement of these Rules, the Refugee Division, on application made by the party or refugee hearing officer in accordance with rule 27, may permit the party or refugee hearing officer to remedy the non-compliance or may waive the requirement, where it is satisfied that no injustice is thereby likely to be caused to any party or the proceeding will not be unreasonably impeded.
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39. Les présentes règles ne sont pas exhaustives; en l"absence de dispositions sur des questions qui surviennent dans le cadre d"une procédure, la section du statut peut prendre les mesures voulues pour assurer une instruction approfondie de l"affaire et le règlement des questions de façon expéditive.
40. En cas d"inobservation d"une exigence des présentes règles par une partie ou l"agent d"audience, la section du statut peut, sur réception d"une demande de la partie ou de l"agent d"audience, conforme à l"article 27, soit lui permettre de remédier au défaut, soit le dispenser de l"exigence, si elle est convaincue qu"une telle mesure ne risque pas de causer d"injustice aux parties ni d"entrave sérieuse à la procédure.
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[9] In the case at bar, the applicants were responsible for providing the Division with the information it needed to contact them,4 especially since service by publication cannot be effected without violating the tribunal"s duty of confidentiality. That the Division is now being criticized for waiving the service requirement is unacceptable. An address is obviously necessary to serve a proceeding or notice. "No one is bound to do the impossible."
[10] As has been stated time and time again, it is difficult to understand how applicants can show so little interest in their claim that they do not bother to inform the authorities of their address.
[11] The applicants retorted that even if they were negligent, the Refugee Division had another way of notifying them: it could have served the notice on them on July 17, 1996, the date set for the hearing into their claim, especially since they did in fact appear on that date.
[12] I do not agree. The Refugee Division was not required to wait until July 17, 1996 to serve on the applicants a notice of a hearing on the abandonment. To begin with, there was no reason to believe that the applicants would appear on that date, since they had ignored the prescribed time limits up to that point. Moreover, the notice to appear given to them clearly stated that unless they sent in their PIFs within the allotted time, the appearance date referred to in the notice would be cancelled.
[13] For these reasons, the application for judicial review is dismissed.
[14] Counsel for the applicants submitted the following question for certification:
| [translation] Is the IRB lawfully entitled, without hearing the applicants, to rule on an abandonment before the hearing date that has been set and of which the applicants have been notified, even if the applicants have failed to provide the required information as regards their address and their PIFs by the date the abandonment is declared? |
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[15] I see this question not as one of general importance but as one specific to this case. No question will be certified.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
December 1, 1997
Traduction certifiée conforme
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: JULIO LUIS SOTO IBACACHE ET AL. v. M.C.I. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 4, 1997 |
| REASONS FOR ORDER BY: TREMBLAY-LAMER J. |
APPEARANCES:
| Michel LeBrun FOR THE APPLICANTS |
| Odette Bouchard FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Michel LeBrun FOR THE APPLICANTS |
Montréal, Quebec
| George Thomson FOR THE RESPONDENT |
Deputy Attorney General
of Canada
__________________
1 Claimants have 28 days from the date of service to file their PIFs with the Refugee Division. See subrule 14(2) of the Convention Refugee Determination Division Rules , SOR/93-45.
2 R.S.C., 1985, c. I-2.
3 Supra, note 1.
4 Rule 36 of the Rules requires claimants to notify the Refugee Division of their address within 10 days after being served with a PIF and of the name and address of their legal representative forthwith.
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