Date: 20091014
Docket: IMM-4244-08
Citation: 2009 FC 1034
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
DANIEL TOLODO VANEGAS
ANNA ISABEL CORRAL MENA
MARIANA ISABEL TOLODO CORRAL (Minor)
DANIELA GUADALUPE TOLEDO CORRAL (Minor)
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants who were refugee claimants from Mexico seek
judicial review of a decision of September 9, 2008 in which the Refugee
Protection Division of the Immigration and Refugee Board (the Board) dismissed
their application to have their refugee claim reopened.
BACKGROUND
[2]
The
Adult Applicants arrived in Canada on May 12, 2007 and made refugee
claims when interviewed on May 24, 2007. The Adult Applicants indicated
that they had retained a lawyer named Hamza Kisaka as their barrister. The
Adult Applicants filed their Personal Information Form (PIF) on June 18,
2007. It identified Mr. Kisaka as their lawyer.
[3]
The
Minor Applicants arrived in Canada on August 23, 2007 and made refugee
claims on October 11, 2007. Their PIF was filed on October 29, 2007.
Their claims were consolidated with those of their parents.
[4]
On
November 28, 2007, the Board sent what it calls a “fourteen day letter.”
It advised the Adult Applicants of certain deficiencies in the PIFs and gave
them two weeks to respond. A copy of this letter was sent to Mr. Kisaka.
[5]
Two
months later, a second lawyer became involved. The first correspondence from a
lawyer named Bola Adetunji was sent to the Board on January 24, 2008.
It advised the Board that Mr. Adetunji now represented the Adult and Minor
Applicants and provided counsel contact information forms.
[6]
The
Board’s record shows that on May 22, 2008, the Board sent the four
Applicants a letter advising that their hearing date was July 11, 2008 and
that if they did not appear, their claims could be abandoned. The letter showed
that a copy was sent to Mr. Adetunji as the Applicants’ counsel. The
Applicants acknowledge that they received this letter, but they took no steps
to tell Mr. Kisaka of the hearing date or to ask Mr. Adetunji why he
appeared as their counsel.
[7]
A
Notice to appear (the Notice) was sent to the Applicants by the Board on
May 29, 2008. It again indicated that their hearing would be held on
July 11, 2008. The Applicants deny receiving this letter and, on its face,
it does not appear to have been sent to either Mr. Kisaka or
Mr. Adetunji. Further, it does not appear that the Adult Male Applicant
completed the Claimant’s Reply Form enclosed with the Notice. However, the
Board’s file includes a Statement of Service dated May 29, 2008 which
shows that the Notice, a list of documents about Mexico and a
screening form were served on the Adult Male Applicant and on
Mr. Adetunji.
[8]
The
Board’s file then shows no activity until July 3, 2008, when Mr. Adetunji
wrote and advised the Board that:
I advised previously that I act for the
clients noted above. However, it seems that there might be certain issues
around my retainer and the clients may be changing counsel. I have asked the
clients to kindly clarify this soonest.
The hearing is presently scheduled for 11
July 2008. With the confusion around the clients’ retainer, I did not advise
previously that I am not available on that date.
I have a conflict on the dates and may I
ask for the hearing to be postponed, please?
[9]
On
July 4, 2008, the Board asked Mr. Adetunji, by telephone, to indicate
whether he or Mr. Kisaka had been retained for the hearing. He was told
that if he confirmed that he was to be counsel, the Board would consider his
request for an adjournment. There is no indication in the Board’s file that
Mr. Adetunji ever responded to the Board’s request.
[10]
The
next item in the Board’s file is a Notice of Decision dated July 16, 2008
to the effect that the Applicants’ claims were declared abandoned on
July 11, 2008 because neither the Applicants nor counsel appeared at the
hearing.
[11]
On
August 19, 2008, Mr. Adetunji advised the Board that he had been
instructed to file an application to reinstate the Applicants’ refugee claims.
He filed a Notice of Motion, a Memorandum of Fact and Law and an affidavit
sworn by the Adult Male Applicant.
[12]
In
the section of the Notice of Motion which provides the grounds, Mr. Adetunji
said, in part:
[…] Counsel retained is Hamza Kisaka,
a Barrister and Solicitor in the Province of Ontario.
The claimants applied for legal aid to cover the fees of their counsel.
However, through some errors, their legal aid certificate was issued in the
name of Bola Adetunji, another Barrister and Solicitor in the Province of Ontario. In error, Bola Adetunji
advised the Board that he has been retained to represent the claimants. Since
then, Bola Adetunji has been receiving documents and all correspondences
from the Board on the matter of the claimants.
On 22 May 2008, the Board provided the
refugee claimants with the Claimant’s Confirmation of Readiness by mail.
However, the refugee claimants did not get the Notice. However, the claimants
were advised of the date for their hearing by Bola Adetunji. The claimants
were willing, ready and able to proceed with their hearing.
Counsel Hamza Kisaka did not get a
copy of the Claimant’s Confirmation of Readiness, given that he was not listed
as counsel for the claimants at the Board. Counsel, Hamza Kisaka, did not
know of the date set for the claimant’s hearing by the board. By reason of
this, counsel could not timely advise the Board that he is not available on
that date.
The hearing of the refugee claim noted above
was scheduled to take place on 11 July 2008. Counsel Hamza Kisaka was not
available on that date. He advised the board that he was not available for the
hearing. Because Hamza Kisaka was not listed as counsel of record, he was
unable to request the postponement.
The office of Hamza Kisaka contacted
Bola Adetunji and asked for him to clarify the issue of the retainer and
the postponement request. On 3 July 2008, Bola Adetunji wrote to the Board
and asked for a postponement of the hearing. With the information from
Bola Adetunji, the claimants understood that their hearing will be
postponed to a date convenient for them and their counsel, Hamza Kisaka.
[my emphasis]
[13]
The
difficulty is that these facts are not sworn evidence. Neither
Mr. Adetunji nor Mr. Kisaka filed affidavits.
[14]
The
Adult Male Applicant did swear an affidavit. However, it does not disclose that
he was ever advised that an adjournment had been arranged, and it does not say
which lawyer was to attend the hearing. He only says that “…Bola Adetunji
informed me and I verily believe that our hearing should be postponed to
a time convenient for our lawyer” [my emphasis].
[15]
On
September 9, 2008, the Board dismissed the motion to have the claim
reopened (the Decision) and leave was later granted for judicial review of that
Decision.
[16]
Thereafter,
acting on their own behalf, the Applicants requested a Pre-Removal Risk
Assessment. However, their submissions were not accepted and they were deported
to Mexico on
March 18, 2009.
[17]
When
this application for judicial review of the Decision came on for hearing on
May 5, 2009, the Court was advised of the deportation. The matter was
adjourned for further submissions which were made by teleconference on
August 21, 2009.
DISCUSSION AND
CONCLUSIONS
[18]
The
Applicants say that their refugee claim should have been reopened because they
never intended to abandon it. They say that the only reason they failed to
attend their hearing was Mr Adetunji’s advice that it would be postponed.
[19]
However,
the underlying issue is the confusion surrounding their representation. If
Mr. Kisaka had been counsel of record, he would have received a notice of
the hearing well in advance. If unable to attend, Mr. Kisaka would have
been able to request a postponement directly from the Board, instead of relying
on Mr. Adetunji. In effect, the Applicants argue that the Board should
have reopened their refugee claim because of this confusion, without which the
claim would never have been abandoned.
[20]
However,
the Adult Applicants did not take reasonable steps to correct the Board’s
record to show Mr. Kisaka as counsel. They knew at least as early as the
Board’s letter of May 22, 2008, which showed that a copy had been sent to
Mr. Adetunji as counsel, that the Board was no longer treating
Mr. Kisaka as their lawyer. They acknowledge that they received this
letter but they took no steps to have Mr. Kisaka reinstated as counsel in
the Board’s file. As well, they apparently did not tell him of the hearing
date.
[21]
In
these circumstances, the Applicants cannot rely on confusion about their legal
representation to justify their failure to appear at the hearing, particularly
when, as their evidence shows, they were not advised that a postponement had,
in fact, been granted.
[22]
For
all these reasons, an order will be made dismissing the application.
[23]
In
view of this conclusion, there is no question certified for appeal.
JUDGMENT
UPON hearing
representations of counsel for the Applicants in Toronto on
May 5, 2009 and by teleconference on August 21, 2009.
THIS COURT ORDERS AND
ADJUDGES that, for the reasons given
above, this application for judicial review is hereby dismissed.
“Sandra
J. Simpson”
Email this Content