Docket: IMM-938-16
Citation:
2016 FC 1036
[ENGLISH TRANSLATION]
Ottawa, Ontario, September 12, 2016
PRESENT: The Honourable
Mr. Justice Roy
|
BETWEEN:
|
|
HAMDI LETAIF
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Mr. Hamdi Letaif, the applicant, is a
citizen of Tunisia who applied for refugee status or to be declared a person in
need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c. 27 [the IRPA]. That
application was determined to be abandoned as allowed under section 168 of
the Act. He is seeking judicial review of that decision under section 72
of the Act.
[2]
There is only one question to be answered before
this Court. Questions of abandonment under section 168 are subject to the
reasonableness standard of review. The case law of this Court shows this (Ndomba
v. Canada (Citizenship and Immigration), 2014 FC 189; Csikos
v. Canada (Citizenship and Immigration), 2013 FC 632; Singh v.
Canada (Citizenship and Immigration), 2012 FC 224). As a result,
this Court will not intervene solely on the basis that it would have exercised
its discretionary jurisdiction differently from the administrative tribunal. A decision
with qualities of reasonableness, according to paragraph 47 of Dunsmuir
v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9 [Dunsmuir],
shall be immunized from judicial review. These qualities were described as
follows in paragraph 47: “In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
I.
The facts
[3]
The facts in this case are quite
straightforward. The applicant, now age 27, came to Canada on a student
visa. He applied for the visa on August 29, 2012. It was granted on
September 10, 2012, and was used immediately, as the applicant arrived in
Montreal to study from his native Tunisia on September 17, 2012. The visa
expired on June 30, 2013.
[4]
The record does not indicate the applicant’s
current status. However, we know that he applied for refugee status on
December 10, 2015, and that his claim was supposed to be heard on February 4,
2016. According to the “Basis of claim” form, it seems the applicant is basing
his refugee claim on the fact that the lifestyle that existed in Tunisia in 2012
did not suit him and that he prefers a Western lifestyle. However, on
February 4, 2016, the applicant did not attend his hearing before the
Refugee Protection Division (RPD). The applicant’s counsel was there.
[5]
The transcript of the hearing on February 4
shows that the applicant’s counsel indicated at the hearing that his client was
sick. His counsel apparently advised him that he needed to obtain a medical
report to explain his illness.
[6]
A special hearing was therefore convened to
allow the refugee claimant to explain why the claim should not be determined to
be abandoned given his absence from the hearing convened for his refugee claim.
That special hearing was held six days later, on February 10, 2016. Once
again, the hearing transcript shows that the applicant tried, as best he could,
to provide an explanation. He said he went to a clinic at10:00 a.m. on
February 4 to try to see a doctor (the hearing before the RPD was
scheduled for 8:15 a.m. on February 4). The applicant did not obtain
a medical certificate, although he said he suffered from vomiting and a
depressive state. He even said that pain medication was prescribed. When the
RPD pointed out that medication of that sort would not help vomiting or a
depressive state, the applicant specified that he also had stomach pains.
Neither the applicant nor his counsel suggested at the hearing on February 10
that they were ready to begin proceedings. At the judicial review hearing, the
applicant’s counsel indicated that that was understood, or should have been
understood.
[7]
In a brief decision at the hearing, the RPD
member rejected the applicant’s explanations. Based on rule 65 of the Refugee
Protection Division Rules (SOR/2012-256) [the Rules], she noted that
subrule 5 of rule 65 stipulates that if the refugee claimant claims
medical reasons, a certificate is required to prove his or her condition. If a
certificate is not provided, subrule 7 requires particulars about the
claimant’s health condition. The member found that those particulars were not
provided.
[8]
As for the applicant’s depressive state, the
member noted that he did not have a psychological assessment or even a medical
certificate. Finally, she indicated that the applicant did not submit any
documentation to support his refugee claim. Based on these considerations, the
member found that the case was abandoned.
II.
Parties’ positions
[9]
Through the application for judicial review, the
applicant is contesting the decision made on February 10, 2016. More
specifically, the applicant applied to reopen his refugee claim, an application
that was dismissed in a decision dated April 6, 2016. However, that
decision is not being contested before this Court in this case.
[10]
The applicant claims that the RPD committed an
error. He claims that the RPD did not explain how it reached that conclusion,
given that the applicant wanted to pursue his refugee claim. It seems to me
that while it is fair to claim that the applicant’s presence at the special
hearing on February 10 demonstrated his intention to pursue his refugee
claim, I did not find any indication that either he or his counsel asked that
the refugee claim hearing take place at that time.
[11]
The applicant insists that abandonment must
result from a claimant’s conduct that amounts to an expression of his or her
intention not to diligently prosecute his or her claim. Since the RPD did not take
into consideration the applicant’s efforts to obtain a medical certificate, an
error was apparently committed, opening the door for judicial review.
[12]
Obviously, the Minister argues that the decision
is reasonable. Given that the RPD appropriately considered the factors included
in rule 65 of the Refugee Protection Division Rules, and did not
accept the explanations that were presented, one of the possible acceptable
outcomes was abandonment of the refugee claim. It falls to the RPD to determine
the probative value of any piece of evidence. Simple disagreement with the
findings of the RPD does not constitute grounds for concluding that the
decision is not reasonable.
III.
Analysis
[13]
Under the Act, the RPD may rule on abandonment.
In this case, subsection 168(1) of the IRPA applies. It reads as follows:
|
Abandonment of proceeding
|
Désistement
|
|
168 (1) A Division may determine that a proceeding before it has
been abandoned if the Division is of the opinion that the applicant is in
default in the proceedings, including by failing to appear for a hearing, to
provide information required by the Division or to communicate with the
Division on being requested to do so.
|
168 (1) Chacune des sections peut prononcer le désistement dans
l’affaire dont elle est saisie si elle estime que l’intéressé omet de
poursuivre l’affaire, notamment par défaut de comparution, de fournir les
renseignements qu’elle peut requérir ou de donner suite à ses demandes de
communication.
|
[14]
Regulations were adopted to provide a framework
for the discretion conferred by section 168 of the IRPA. The Refugee
Protection Division Rules are these regulations. Subrule 65(1) of the
Rules introduces the subject:
|
Abandonment
|
Désistement
|
|
Opportunity to explain
|
Possibilité de s’expliquer
|
|
65 (1) In determining whether a claim has been abandoned under
subsection 168(1) of the Act, the Division must give the claimant an
opportunity to explain why the claim should not be declared abandoned,
|
65 (1) Lorsqu’elle détermine si elle prononce ou non le
désistement d’une demande d’asile aux termes du paragraphe 168(1) de la
Loi, la Section donne au demandeur d’asile la possibilité d’expliquer
pourquoi le désistement ne devrait pas être prononcé :
|
|
(a) immediately, if the claimant is present at the proceeding and
the Division considers that it is fair to do so; or
|
a) sur-le-champ, dans le cas où le demandeur d’asile est présent à
la procédure et où la Section juge qu’il est équitable de le faire;
|
|
(b) in any other case, by way of a special hearing.
|
b) au cours d’une audience spéciale, dans tout autre cas.
|
The regulations
state that this special hearing must be held in a timely manner (subrule 65(3)).
The Rules also stipulate what the RPD must consider in its decision:
|
Factors to consider
|
Éléments à considérer
|
|
(4) The Division must consider, in deciding if the claim should be
declared abandoned, the explanation given by the claimant and any other
relevant factors, including the fact that the claimant is ready to start or
continue the proceedings.
|
(4) Pour décider si elle prononce le désistement de la demande
d’asile, la Section prend en considération l’explication donnée par le
demandeur d’asile et tout autre élément pertinent, notamment le fait qu’il
est prêt à commencer ou à poursuivre les procédures.
|
[15]
In our case, the applicant invoked medical
reasons, which the Rules address:
|
Medical reasons
|
Raisons médicales
|
|
(5) If the claimant’s explanation includes medical reasons, other
than those related to their counsel, they must provide, together with the
explanation, the original of a legible, recently dated medical certificate
signed by a qualified medical practitioner whose name and address are printed
or stamped on the certificate.
|
(5) Si l’explication du demandeur d’asile comporte des raisons
médicales, à l’exception de celles ayant trait à son conseil, le demandeur
d’asile transmet avec l’explication un certificat médical original, récent,
daté et lisible, signé par un médecin qualifié, et sur lequel sont imprimés
ou estampillés les nom et adresse de ce dernier.
|
[16]
In passing, I note the particularly imperative
tone in the English version of the rule with regard to providing a medical
certificate (“they must provide”).
[17]
Finally, subrule 7 of rule 65 applies
in cases where a medical certificate is not submitted. The subrule reads as
follows:
|
Failure to provide medical certificate
|
Défaut de transmettre un certificat
médical
|
|
(7) If a claimant fails to provide a medical certificate in
accordance with subrules (5) and (6), the claimant must include in their
explanation
|
(7) À défaut de transmettre un certificat médical, conformément
aux paragraphes (5) et (6), le demandeur d’asile inclut dans son explication
:
|
|
(a) particulars of any efforts they made to obtain the required
medical certificate, supported by corroborating evidence;
|
a) des précisions quant aux efforts qu’il a faits pour obtenir le
certificat médical requis ainsi que des éléments de preuve à l’appui;
|
|
(b) particulars of the medical reasons included in the
explanation, supported by corroborating evidence; and
|
b) des précisions quant aux raisons médicales incluses dans
l’explication ainsi que des éléments de preuve à l’appui;
|
|
(c) an explanation of how the medical condition prevented them
from providing the completed Basis of Claim Form on the due date, appearing
for the hearing of the claim or otherwise pursuing their claim, as the case
may be.
|
c) une explication de la raison pour laquelle la situation
médicale l’a empêché de poursuivre l’affaire, notamment par défaut de
transmettre le Formulaire de fondement de la demande d’asile rempli à la date
à laquelle il devait être transmis ou de se présenter à l’audience relative à
la demande d’asile.
|
As seen in the
transcript of the hearing on February 10, 2016, the RPD did not accept the
explanation given. One can understand why. The applicant was unable to explain
why he was able to try to contact a doctor on February 4, the day of the
hearing, but was unable to attend his hearing to obtain refugee status. Nor is
it clear why he could not have visited the doctor before February 4, 2016.
I could not find in the transcript any indication that the applicant wanted to
proceed with his refugee claim hearing on February 10. His counsel did not
request it and the member noted that no documentation appeared to be on file.
The applicant’s alleged medical problems are not supported by any serious
evidence. In fact, his explanation of his medical problems seemed to change
over the course of the hearing.
[18]
It seems to me that my colleague, The
Honourable Mr. Justice Leblanc, correctly captured the issue in
applying section 168 of the IRPA. He wrote the following in paragraph 36
of his decision in Zhang v. Canada (Citizenship and Immigration), 2014 FC 882:
[36] This Court, in interpreting s 168(1)
of the Act, has consistently held that the key consideration with respect to
abandonment proceedings is whether the claimant’s conduct amounts to an
expression of his or her intention to diligently prosecute his or her claim (Csikos
v Canada (Minister of Citizenship and Immigration, 2013 FC 632
(CanLII), at para 25).
Thus, it is the applicant’s conduct that is
under examination.
[19]
In our case, it is the examination of this
conduct that is at issue; the member found that this conduct did not express
the intention to prosecute the claim, given that the applicant did not provide
a credible explanation for the health difficulties that apparently prevented
him from prosecuting diligently (this includes the absence of a medical
certificate or any evidence of a psychological assessment), and the fact that
he did not submit any documentation to support his refugee claim. In fact,
during the hearing on February 4, 2016, the applicant’s counsel indicated
that he had difficulty communicating with his client to prepare for his
hearing.
[20]
The onus on the applicant was to show that the member’s
decision was not reasonable, within the meaning of paragraph 47 of the Dunsmuir
decision. Rather than trying to show the lack of reasonableness, the applicant
attempted to allege an error. The standard of review in these matters is not
that of correctness, where, for example, the Court may have a different view of
the matter and may therefore overturn the administrative tribunal’s decision.
That is not the role of this Court. Rather, it is to determine whether the
conclusion constitutes a possible acceptable outcome. The applicant failed to
show that such was not the case, as required.
[21]
Consequently, the application for judicial
review is dismissed. There is no question to be certified under section 74
of the IRPA.
Email this Content