Date: 20110128
Docket: IMM-2683-10
Citation: 2011 FC 107
Ottawa, Ontario, January 28,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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SAMUEL JOSEPH
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Applicant
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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]
The
applicant
challenges, by way of this judicial review application, the decision of the Immigration
and Refugee Board’s Refugee Protection Division (RPD) of March 24, 2010,
declaring his claim for refugee protection to be abandoned. The applicant
contends that the decision should be set aside on the basis that he did not
receive notice of the hearing and had no intention of abandoning his
claim. For the reasons that follow, the application for judicial review is
dismissed.
[2]
In
declaring a
claim to be abandoned, the RPD exercised the power given to it by s. 168(1) of the
Immigration and Refugee Protection Act, 2001 c. 27 (IRPA), which
authorizes the RPD to declare a claim to be abandoned if it is of the opinion
that the claimant is in default by failing to appear for a hearing. Rule 58
(2)(3) of the Refugee Protection Division Rules provides that, prior to the
RPD declaring a claim to be abandoned, the claimant must be given the opportunity
to explain why the claim should not be declared to be abandoned and sets
forth certain criteria for the Board to consider, such as the nature of the
explanation and whether the claimant was prepared to start the proceeding. The
applicant, Mr. Joseph, was provided this opportunity.
[3]
The
applicant
was sent a Notice of Hearing to determine his refugee claim. It was
sent to both the applicant at his home address and to his counsel (consultant)
at his business address specifying that a hearing would take place on February
20, 2008. Neither the applicant nor his consultant appeared at the hearing. A
further notice was sent to both the applicant and his consultant advising that
a hearing would be held on March 24, 2010 to determine his refugee claim
and that a failure to appear on that date would render the hearing a show cause
hearing as to why the applicant’s claim should not be declared abandoned. Again,
neither the applicant nor his consultant appeared, although the Notice was duly
served on both the applicant and his consultant by prepaid regular service at
the addresses provided to the Board by the claimant and his
consultant.
[4]
The
applicant's argument before this Court, simply put, is that he did not receive
the two notices in question and that he never intended to abandon his claim for
refugee status. He argues in the alternative, that if the letters were
received by the consultant, the consequence of his failure to act in response
to them should not be suffered by him. This is not an alternative argument; it
is an inconsistent argument. These arguments are not a sufficient basis on
which to set aside the decision of the RPD as being unreasonable.
[5]
There
is a
presumption that letters sent in the ordinary course are received. Other than
the bald assertion of the applicant in the supporting affidavit, no explanation
or evidence was offered to explain why none of the four letters sent
to the correct addresses were not received. No evidence was forthcoming from
the consultant. As a mixed question of law and fact the decision of the RPD
declaring the applicant’s claim to be abandoned is to be assessed against the
standard of reasonableness, per Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190. The RPD’s decision is within the possible, acceptable range
of outcomes and is defensible in respect of the facts and law. It is,
therefore, reasonable.
[6]
No
question has been proposed for certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby dismissed.
There
is no question of general importance to be certified.
"Donald J. Rennie"
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