Docket: IMM-6877-11
Citation: 2012 FC 1040
Toronto, Ontario, August 30, 2012
PRESENT:
The Honourable Mr. Justice Zinn
BETWEEN:
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JANOS DINDO, JONOSNE DINDO,
BETTINA DINDO, DENES DINDO,
JANOS DINDO JR.
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Division) dismissing the
applicants’ Application to Re-Open their Refugee Protection Claims pursuant to
Rule 55 of the Refugee Protection Division Rules, SOR/2002-228. At the
hearing I advised the parties and their counsel that this application would be
granted. These are my reasons for so doing.
[2]
Rule 55
provides that “The
Division must allow the application [to re-open] if it is established
that there was a failure to observe a principle of natural justice [emphasis
added].”
[3]
In
this case, the Division found that there was no failure to observe a principle
of natural justice. Based on the submissions made to it, I am of the view that
it was correct. However, as will be seen, the Record reveals that there was a
different and more persuasive submission that ought to have been advanced.
[4]
The
Division sent the applicants a Notice to Appear for a Scheduling Conference on
May 12, 2011. The notice was not returned and the applicants failed to
appear. As a result, the Division then sent the applicants a Notice to Appear
for an Abandonment of a Claim for Refugee Protection hearing on June 8, 2011.
The notice was not returned and the applicants failed to appear. As a result,
the Division declared the claims for protection abandoned and sent the applicants
notice of that decision on July 5, 2011. The notice was not returned.
[5]
Each
of these three notices was mailed to the applicants at the address provided in
their Personal Information Form (PIF), namely 105 West Park Lodge Avenue, #901,
Toronto, Ontario.
[6]
The
applicants had been represented by a Consultant who prepared the PIF. The
Record before the Court indicates that although the applicants signed the PIF,
they had not read it. Accordingly, it may not have been accurate.
[7]
The
Consultant’s services were ended by the applicants and a notice was sent to the
Division on March 1, 2011, informing that he was no longer counsel of record.
As a consequence, the three notices mailed to the applicants were not copied to
him.
[8]
The
Record indicates that although the applicants retained new counsel on March 28,
2011, that counsel failed to advise the Division in writing of that fact until
August 16, 2011, after the decision was rendered by the Division that the
claims had been abandoned. The Record indicates that counsel asserts that he
informed the Division orally that he represented these applicants. Rule 4(4)
requires that such notice be in writing.
[9]
In
the application to re-open, the applicants submitted that they did not receive
any of the three notices sent by the Division and an argument was made that the
oral notice was sufficient and the Division erred in failing to inform new
counsel of these hearing dates. The Court rejects that submission. The clear
requirement is for a written notice. Counsel cannot rely on a mere statement
made in another proceeding as constituting a notice that is binding on the
Division.
[10]
The
argument made to the Division that the applicants failed to receive any of the
three notices was merely a bald statement contained in a written submission.
It was not contained, as would have been expected, in a written affidavit of
the applicants. The Division on the reconsideration motion observed that “no
explanation [had] been provided as to why the applicants did not appear, given
that the last address is the West Lodge address.”
[11]
Accordingly,
based on the information contained in the submissions made to the Division, I
cannot find fault with its decision not to re-open the claims.
[12]
However,
when this application came on for hearing, Ms. Dragaitis, counsel for the
respondent, informed the Court that she had discovered something that had been
missed by all others; namely that the address to which the Division sent the
notices, although the address of the applicants disclosed in the PIF (and which
the applicants had not read) was not the address set out in other documents
filed by the applicants. Specifically, the Notification of Contact Information
filed with the Division by the applicants on October 19, 2009,specifies that
their address is 105 West Park Lodge Avenue, #321, Toronto, Ontario. Further in the Applicants’ Record before the Court is a copy of a complaint they
filed with the Canadian Society of Immigration Consultants relating to their
first counsel and it too indicates that their address is 105 West Park Lodge
Avenue, #321, Toronto, Ontario.
[13]
Counsel
for the respondent, appropriately, informed the Court that as a consequence of
this discovery she would not be making the submission contained in the written
memorandum, that the submission made by the applicants that they had failed to
receive the notices from the Division was “simply not credible” and that “a
more probable explanation is that the Applicants were simply not diligent in
pursuing their claim.”
[14]
Based
on this new disclosure that the applicants may well have failed to receive the
notices because they were mailed to an address where they did not live, this
application must be allowed and the request to reopen remitted back to the
Division. The applicants are at liberty to file new and additional information
before that decision is rendered again and the Court expects that they will
file affidavit evidence attesting to their actual address at the relevant times
and explain why they did not receive the notices previously sent by the
Division.
[15]
The
Court commends Ms. Dragaitis for her diligence and conduct in bringing this to
the Court’s attention. Her conduct is in keeping with the best traditions of
the legal profession.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
This
application is allowed and the decision of the Refugee Protection Division of the Immigration and
Refugee Board dismissing the applicants’
Application to Re-Open their Refugee Claims is set aside;
2.
The
applicants’ Application to Re-Open their Refugee Claims shall be determined by
a differently constituted panel of the Refugee
Protection Division of the Immigration and Refugee Board; and
3.
No
question is certified.
“Russel W. Zinn”
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