Date: 20100903
Docket: IMM-6304-09
Unrevised certified
translation Citation:
2010 FC 868
Ottawa, Ontario, September 3,
2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
JUAN
MANUEL CORNEJO ARTEAGA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act (the Act) of a decision by the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board) in which
the Board denied the applicant’s application to reopen his refugee claim. The
application for judicial review was also filed with a request for an extension
of time to serve and file an application for leave and judicial review under
paragraph 72(2)(c) of the Act.
Background
[2]
The
applicant is a Mexican citizen who worked as a journalist. He arrived in Canada on February 9, 2008, and made
a claim for refugee protection on March 5, 2008. In support of his claim for
refugee protection, the applicant claimed that he and his family had received
threats and that he himself had been assaulted after he had filed a news story
on drug traffickers. The applicant’s spouse and son also left Mexico to join the applicant in Canada and claimed refugee
protection for themselves on June 4, 2009.
[3]
The
Board’s Refugee Protection Division summoned the applicant to a hearing on June
22, 2009, to deal with his refugee claim. The applicant failed to appear at the
hearing because he was sick. He left a message at the office of his counsel,
who then informed the Board. The Board subsequently informed the applicant’s
counsel that it would commence abandonment proceedings with regard to the
refugee claim, but that a second hearing would be scheduled for July 21, 2009, to
allow the applicant to explain to the Board why the claim should not be
declared abandoned.
[4]
The notice
of the hearing for July 21, 2009, received by the applicant indicated that he
would be asked to explain why the Board should not declare the claim abandoned.
The notice of the hearing also stated that the hearing was to start at 1:15
p.m., but that the applicant was to be there at 12:45 p.m. Prior to the date of
the hearing, the applicant filed exhibits in the Board’s record. When the
hearing began on July 21, 2009, the applicant was not present. Counsel for the
applicant, who was present, communicated with the applicant, who apparently
informed him that he was on his way, but that he was caught in traffic and
would be late. Counsel relayed this information to the Board, which waited for
about fifteen minutes. Since the applicant had still not arrived at 1:31 p.m., the
Board declared the claim abandoned. The applicant showed up at 1:45 p.m., but
his claim had already been declared abandoned.
[5]
On August
11, 2009, the applicant made an application to reopen his refugee claim
pursuant to Rule 44 and Subrule 55(1) of the Refugee Protection Division
Rules. This
application was dismissed on August 27, 2009, [translation]
“based
on the lack of medical evidence corroborating the claimant’s absence from the
hearing on June
22, 2009”.
[6]
The
applicant claims that he later retained the services of an immigration consultant
who suggested that he make a new application to the Board to reopen his refugee
claim. The applicant submitted a letter to the Board, dated September 16, 2009,
in which he [translation] “asks for the Board’s
help”. The
applicant submits that he checked with the Board around November 2009 and was
then informed that his application had not been acted upon. The Board then
re-sent him the letter refusing to reopen the refugee claim, dated August 27,
2009. The applicant apparently received this letter on November 14, 2009.
[7]
The
applicant maintains that he subsequently went through a period of panic,
depression and anxiety, and that on December 10, 2009, he finally consulted a
lawyer who informed him of the possibility of applying to the Federal Court for
judicial review. The application for leave and judicial review was filed with
the Federal Court on December 11, 2009, and the application for leave was
granted by Justice Shore on June 2, 2010.
Analysis
[8]
The
impugned decision was rendered on August 27, 2009, and the application for
leave and judicial review was filed on December 11, 2009.
[9]
Given that
an extension of time is a condition precedent to the consideration of the
application for judicial review, I will deal with that issue first.
[10]
Parliament
has imposed a fairly short period of time for filing an application for leave
and judicial review. Section 72 of the Act provides as follows:
|
72. (1) Judicial review by the
Federal Court with respect to any matter — a decision, determination or order
made, a measure taken or a question raised — under this Act is commenced by
making an application for leave to the Court.
(2) The following provisions govern an application under subsection
(1):
(a)
the application may not be made until any right of appeal that may be
provided by this Act is exhausted;
(b)
subject to paragraph 169(f), notice of the
application shall be served on the other party and the application shall be
filed in the Registry of the Federal Court (“the Court”) within 15 days, in
the case of a matter arising in Canada, or within 60 days, in the case of a
matter arising outside Canada, after the day on which the applicant is
notified of or otherwise becomes aware of the matter;
(c)
a judge of the Court may, for special reasons, allow an extended time for
filing and serving the application or notice;
(d)
a judge of the Court shall dispose of the application without delay and in a
summary way and, unless a judge of the Court directs otherwise, without
personal appearance; and
(e)
no appeal lies from the decision of the Court with respect to the application
or with respect to an interlocutory judgment.
|
72. (1) Le contrôle judiciaire par la Cour fédérale
de toute mesure —
décision, ordonnance,
question ou affaire
— prise dans le
cadre de la présente
loi est subordonné au dépôt
d’une demande
d’autorisation.
(2) Les dispositions
suivantes s’appliquent à
la demande
d’autorisation :
a) elle ne
peut être présentée tant que les
voies d’appel ne
sont pas épuisées;
b) elle doit
être signifiée à l’autre partie
puis déposée au
greffe de la Cour fédérale — la Cour — dans les quinze ou soixante jours,
selon que la mesure
attaquée a été rendue au
Canada ou non,
suivant, sous réserve de l’alinéa
169f), la
date où le demandeur en est avisé
ou en a eu
connaissance;
c) le
délai peut toutefois être prorogé, pour
motifs valables, par
un juge de la Cour;
d) il est
statué sur la demande à bref délai et
selon la procédure
sommaire et, sauf autorisation
d’un juge de la
Cour, sans comparution
en personne;
e) le
jugement sur la demande et toute décision
interlocutoire ne
sont pas susceptibles
d’appel.
|
[11]
This
section is complemented, in matters of immigration and refugee protection, by
Rule 6 of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93‑22:
|
6.
(1) A request for an extension of time referred to in paragraph 72(2)(c) of
the Act shall be made in the application for leave in accordance with Form
IR-1 set out in the schedule.
(2)
A request for an extension of time shall be determined at the same time, and
on the same materials, as the application for leave.
|
6.
(1) Toute demande visant la prorogation du délai au titre de l’alinéa 72(2)c)
de la Loi, se fait dans la demande d’autorisation même, selon la formule IR-1
figurant à l’annexe.
(2)
Il est statué sur la demande de prorogation de délai en même temps que la
demande d’autorisation et à la lumière des mêmes documents versés au dossier.
|
[12]
In spite
of Subrule 6(2), both the Federal Court and the Federal Court of Appeal have recognized
that the judge hearing the application for judicial review has jurisdiction to
rule on the request for an extension of time when the judge who allowed the
application for leave to apply for judicial review has not decided this issue
and that one should not infer from the granting of leave that the motion judge
also granted an extension of time (Deng Estate v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FCA 59; McBean v. Canada (Minister
of Citizenship and Immigration), 2009 FC 1149; Villatoro v.
Canada (Minister of Citizenship and Immigration), 2010 FC 705).
[13]
The time
limits for filing applications for judicial review are mandatory and, unless a
judge grants an extension, must be respected. As the Federal Court of Appeal
indicated in Canada v. Berhad, 2005 FCA 267, time limits serve the
public interest and must be allowed to bring finality to administrative
decisions.
[14]
In
Canada (Minister of
Human Resources Development) v. Hogervorst, 2007 FCA 41, the
Federal Court of Appeal reiterated the principle set out in Berhad and
reaffirmed, at paragraph 24, that “a time-limit for the commencement of
challenges to administrative decisions is not whimsical”.
[15]
In
addition, Parliament has given judges the discretion to grant an extension of
time for “valid reasons”. While each request for a time extension must be
assessed in light of the particular circumstances of the case, judges should
not lose sight of the importance of the time limits imposed by Parliament. However,
it is equally important for judges to ensure that justice is done between the
parties (Tarsem Singh Grewal v. Canada (Minister of Employment and Immigration),
[1985] 2 F.C. 263 (F.C.A.)). The case law has developed factors which can guide
judges in their assessment of “valid reasons”. These factors were set out by
the Federal Court of Appeal in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (QL), and they
have been consistently upheld since then. The applicant must demonstrate:
a. a continuing intention to
pursue his or her application;
b. that the application has some
merit;
c. that no prejudice to the
respondent arises from the delay; and
d. that a reasonable explanation
for the delay exists.
[16]
The party
requesting an extension of time must also be able to provide explanations for
the delay incurred for the entire period in question (Villatoro).
[17]
The case
law has, to a very great degree, established that good faith and ignorance of
the Act do not constitute grounds that warrant granting an extension of time
and that, in general, an error by the legal representative does not, in and of
itself, warrant granting an extension of time. As Justice Tremblay-Lamer noted
in Mutti v. Canada (Minister of Citizenship and Immigration), 2006 FC 97 at para. 4,
“[h]aving poor legal representation and ignorance of the law are neither
excuses nor justifications for a delay”. I also share the opinions of Justice
Barnes in Washagamis First Nation of Keewatin, Ontario v. Ledoux, 2006 FC
1300 and Justice Gauthier in McBean, who favoured, when solicitor error
is invoked, an approach that not only looks at the behaviour of the solicitor
but at the behaviour of the applicant as well.
[18]
A similar
approach was adopted by the Federal Court of Appeal in Canada (Attorney General) v.
Larouche, [1994]
F.C.J. No. 1720 (QL) at para. 6. While that judgment was issued in a different
context from the one presently at issue, the principle set out by the Court is
just as applicable to the case at bar:
The precedents of this Court are clear: good
faith and ignorance of the law do not in themselves excuse a failure to comply
with a legislative requirement; a belated claimant must still show that she
acted as a reasonable person in the same situation would have done to protect
the rights and obligations imposed on her by the Act.
[19]
In this
case, I find that the applicant demonstrated a continuing intention to
challenge the Board’s decision. I am also satisfied that the case has some
merit and that no prejudice to the respondent arose from the delay in filing
the application for judicial review. However, I do not find that the applicant
has satisfactorily established that he had reasonable explanations to justify
his failure to act within the specified time frame.
[20]
The
applicant explained his delay on two grounds. First, the applicant claims that
he was given bad advice by an immigration consultant, who encouraged him to
commence the wrong proceeding, namely, the second application to reopen his
claim filed with the Board on September 16, 2009. This first circumstance
would explain the delay between the time he received the decision on August 27,
2009, and the month of November 2009, when he contacted the Board to follow up
on his second application to reopen his claim.
[21]
I find it
very unfortunate that the applicant consulted an immigration consultant who
proffered bad advice to him. I am also convinced that the applicant acted in
good faith. However, and as was previously stated, ignorance of the law and
inadequate legal representation do not, in and of themselves, justify the
failure to respect a deadline. Moreover, I find that the applicant himself was
not sufficiently diligent. The applicant was represented by counsel at the
first two hearings regarding his refugee claim and the abandonment proceedings.
The applicant was probably still in contact with his counsel up until the
Board’s decision was rendered and that same counsel undoubtedly received a copy
of the decision. It is not possible to determine from the evidence whether the
applicant met with his counsel after having received the decision, but it would
be quite surprising if he had not. The applicant did not explain why he chose
to cease retaining the services of that counsel and instead consult an
immigration consultant, but in doing so he was taking a risk. Furthermore, the
Board’s decision dismissing the application to reopen the applicant’s refugee
claim clearly indicates that he has the right to file an application for
judicial review with the Federal Court. The annotation at the end of the
decision reads as follows:
You have the right under ss. 72(1) of the
Immigration and Refugee Protection Act to apply for a judicial review of
this decision, with leave of a judge of the Federal Court – Trial Division. You
may wish to consult with counsel immediately as your time for applying for
leave is limited under that section.
[22]
This very
clearly indicated the path to follow in order to challenge the decision as well
as the time limits for doing so; the applicant neglected to follow this path.
[23]
To explain
the delay between the time he was informed that his second application to
reopen his claim had not been acted upon, namely, on or about November 14, 2009,
and December 10, 2009, the date on which he consulted counsel, the applicant
cited health reasons. He stated the following at paragraphs 18 and 19 of his
affidavit:
[translation]
18- I was seized with panic and I was
very anxious and under a lot of stress. I did not know what to do and asked
several people for advice;
19- Finally, on December 10, 2009, I was
able to meet with Andrea Claudia Molina, a lawyer who explained the Federal
Court’s judicial review procedures to me and who also told me that the
application to reopen on humanitarian grounds that had been filed with the help
of the immigration consultant was not the appropriate legal means by which to
challenge the IRB’s decision;
[24]
There is
insufficient evidence to support this claim. The applicant submitted a doctor’s
certificate indicating that the applicant had gone to see him for a
consultation on December 13, 2009. The certificate is very brief; it does not state
the reason for the consultation nor does it indicate any diagnosis. Moreover, the
consultation was after the application for leave and judicial review was made
and can surely not be used to explain the applicant’s failure to act before the
date on which the application was made. I also find that the applicant’s
statement that he was experiencing anxiety and stress does not in itself mean
that he was unable to act.
[25]
I am
therefore of the view that the explanations provided by the applicant do not
warrant the granting of an extension of time.
[26]
Thus, the
extension of time is not granted and, consequently, the application for
judicial review is dismissed.
[27]
No
question of general importance was submitted by the parties for certification and
none will be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the request for an extension
of time within which to serve and file the application for leave and judicial
review is dismissed; accordingly, the application for judicial review is
dismissed.
“Marie-Josée
Bédard”
Certified
true translation
Sebastian
Desbarats, Translator
Email this Content