Date: 20170720

Docket: IMM-3466-16

Citation: 2017 FC 406

Ottawa, Ontario, July 20, 2017

PRESENT:    The Honourable Madam Justice McVeigh

AMENDED JUDGMENT AND REASONS

I.                   Introduction

[1]               Loterio Brown is a failed refugee claimant in Canada because he did not complete a Basis of Claim [BOC] form within fifteen days of arrival as required. His refugee claim was considered abandoned after he failed to appear at a scheduled hearing. Mr. Brown applied to have his claim re-opened but was rejected. He applied a second time to have his claim re-opened and was again rejected. This first second rejection forms the decision under judicial review.

II.                Background

[2]               Mr. Brown is a citizen of the Bahamas. On May 21, 2016, he arrived in Canada as a tourist. He informed Canada Border Services Agency [CBSA] that he wished to go shopping, ride a train and visit the zoo.

[3]               The officer interviewing Mr. Brown was concerned that his stated purpose for visiting Canada was not genuine and that he would not leave on his stated departure date. The officer told Mr. Brown that he would draft a report for review by a senior immigration official. Before the report could be completed Mr. Brown approached the officer and claimed refugee status. As a result, Mr. Brown was given a number of documents including a BOC package and a Notice to Appear before being allowed to leave the airport. Mr. Brown signed an acknowledgment of conditions which detailed deadlines for undergoing a medical exam and submitting his BOC form.

[4]               Mr. Brown dutifully attended his medical exam but failed to submit his BOC form or attend a hearing to explain why he had not submitted his BOC form. Mr. Brown’s claim was considered abandoned and he was notified of the decision.

[5]               Upon receiving notice of this decision, Mr. Brown filed to have his case re-opened. He claimed to have never been told about the BOC form or of the mandatory hearing despite having signed an acknowledgment that he was told.

[6]               On August 12, 2016, the Refugee Protection Division [RPD] determined that Mr. Brown’s evidence was not reliable and that the CBSA officer clearly wrote in his notes that Mr. Brown had been provided with both the BOC package and Notice to Appear detailing his hearing date and time. The application was dismissed for failing to disclose a breach of natural justice.

[7]               Mr. Brown then made a second application to re-open his claim. In a decision dated November 7, 2016, the RPD found that there were no exceptional circumstances to warrant re-opening Mr. Brown’s file. New evidence was presented in the form of a report dated September 2, 2016, by Jena Ledson, registered psychotherapist and an affidavit from Mr. Brown himself.  However, the RPD found that there was no persuasive evidence to show that any psychological or language problems were the cause of Mr. Brown’s failure to follow instructions. To the contrary, the RPD found that Mr. Brown was educated in an English speaking country with ten years of education and a diploma.

[8]               In her report, after a 60-90 minute interview, the psychotherapist acknowledged that testing would be required to determine the extent and severity of any disabilities Mr. Brown may have.

[9]               The RPD concluded that the evidence with respect to the extent of an alleged disability was contradictory and the new evidence presented did not explain Mr. Brown’s failure to comply with refugee claimant requirements. The level of disability claimed by Mr. Brown did not correspond to clear answers provided by Mr. Brown during intake with CBSA.  As a result, the RPD determined that no exceptional circumstances existed and the application to re-open Mr. Brown’s refugee claim was rejected.

III.             Issue

[9]               The issue in this case is whether the RPD’s decision to not re-open Mr. Brown’s refugee claim was reasonable?

IV.             Standard of Review

[10]           The standard of review applicable to this decision is reasonableness.

V.                Analysis

[11]           Subsection 62(2) of the Refugee Protection Division Rules, SOR/2012-256 [RPD Rules] states: The division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

[12]           Subsection 62(8) of the Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], reads as follows :

[13]           Mr. Brown’s judicial review is for his first second application to re-open a claim. The legal test is different for the first application to re-open. A first application to re-open a claim focuses on a breach of natural justice (s.62(6) of the RPD Rules) as opposed to a second application which requires exceptional circumstances (s.62(8) of the RPD Rules) for a file to be re-opened. The initial decision found no breach of natural justice and is not under review.

[14]           The RPD has no discretion to re-open a file unless there is new evidence that indicates exceptional circumstances. The first decision was not judicially reviewed and many of the same issues are used to try and open the decision on the second attempt. This Court has held that a party cannot re-litigate a final decision which they chose not to judicially review (Tumanova v Canada (Minister of Citizenship and Immigration), 2015 FC 1240 at paras 19-21).

[15]           The decision maker reviewed the new evidence and did not find there were exceptional circumstances and I must agree that the decision was reasonable.

[16]           The decision maker considered Mr. Brown’s allegation that he was not aware he had to submit a BOC. This argument was rejected as it is standard operating practice by CBSA intake to provide instructions for submitting a BOC. Mr. Brown’s argument that he thought the BOC was only needed for the hearing was also reasonably rejected. Mr. Brown attended his medical appointment which is part of the CBSA instructions so he knew of and followed some directions, just not all of them.

[17]           The RPD in Mr. Brown’s first application to re-open had the allegation that he has difficulty reading and understanding English. In that decision, it was confirmed that Mr. Brown was educated in an English speaking country and held a supervisory position before coming to Canada. The RPD reasonably concluded that Mr. Brown could read and understand English.

[18]           I find that it was reasonable that the RPD found there was no failure to observe a principle of natural justice.

[19]           Mr. Brown presented a psychotherapist report to the RPD in his second application which was not before the board in his first application.  The report indicates that he suffers from several emotional and psychological problems. Nevertheless, the RPD noted a marked difference between the answers provided at the CBSA intake and the alleged confusion and lack of focus now being exhibited by Mr. Brown. It found that these newly alleged psychological problems did not explain why Mr. Brown followed some directions (such as attending his medical appointment) but not others.

[20]           The RPD noted that some of Mr. Brown’s recent emotional stress may be attributed to his recent HIV positive diagnosis. The psychotherapist equally acknowledged that the present circumstances could have an influence on how he now presents. The RPD reasonably found that there was contradictory evidence regarding Mr. Brown’s failure to comply and that the new evidence did not explain why he did not comply with the board’s requirements. They reasonably concluded that there were no exceptional circumstances present in this case.

[21]           This decision exhibits justification, transparency and intelligibility within the decision making process and the decision is within the range of possible, acceptable outcomes, defensible in fact and law (Dunsmuir v New Brunswick, 2008 SCC 9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12). For those reasons I will dismiss the application for judicial review.

[22]           No question was presented for certification.

AMENDED JUDGMENT in IMM-3466-16

THIS COURT’S JUDGMENT is that:

1.                  The application is dismissed.

2.                  No question is certified.

"Glennys L. McVeigh"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: