Date:
20171207
Docket:
IMM-1641-17
Citation: 2017 FC 1118
Ottawa, Ontario, December 7, 2017
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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TSOTNE NANAVA
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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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JUDGMENT AND REASONS
(Delivered orally from the Bench in
Toronto, Ontario on November 20, 2017)
[1]
This matter relates to an application for
judicial review of a decision of the Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada, dated March 27, 2017, in
respect of hearings that took place on March 15, 2017, and March 22, 2017
[Decision]. In this Decision, a member of the RPD [Member] determined that the
applicant, Mr. Tsotne Nanava [Mr. Nanava], had abandoned his claim
for Convention refugee or person in need of protection status under sections 96
and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27
[IRPA], effectively putting an end to the claim.
I.
Facts
[2]
Mr. Nanava is a citizen of Georgia. On August 7, 2016, he arrived in Canada on a
visitor’s visa, which he admittedly obtained through false declarations relating
to his employment, training, and plans while in Canada. Three months later, he applied for refugee protection at an inland
office pursuant to sections 96 and 97 of the IRPA. His
refugee claim was referred to the RPD on January 6, 2017.
[3]
A hearing before the RPD was commenced on March
2, 2017. At that hearing, Mr. Nanava became ill and fainted. Security
personnel attended to him until emergency medical staff arrived. Mr. Nanava eventually regained consciousness and was transported to
Mount Sinai Hospital in Toronto, Ontario by the emergency medical staff.
[4]
After Mr. Nanava had been removed from the
hearing room, the presiding RPD member posed several questions to Mr. Nanava’s counsel
[Counsel] about what had transpired between the applicant and emergency
personnel. In particular, he posed questions with respect to the state Mr.
Nanava’s health and the language in which Mr. Nanava had replied to the
emergency personnel. The presiding member then stated as follows (line 25, page
199 of the Certified Tribunal Record and page 21 of the Transcript of the
March 2 hearing):
Okay. So my decision is to permit the
claimant to is going to – he’s going to be seen medically at the hospital today
and no doubt they’ll be some medical documentation that arises from the visit
and that may assist him and you in showing cause why the claim should not be declared
abandoned.
So my decision on the CDT request is that
the request is denied, but the relief is that the claimant has a chance to show
cause why his claim should not be declared abandoned. There is a special date already noted in the Notice to Appear.
The special hearing as if a claimant does
not appear at the hearing of the claim, in this case the claimant has been
here, so the show cause date will be on March 9th at the time
specified on the Notice to Appear. If there’s any change in that you’ll be
notified.
That brings the sitting to a close. Thank
you, Mr. Interpreter.
(Emphasis added).
[5]
The March 9 date specified in the Reasons issued
by the presiding member was eventually amended to March 15, 2017.
[6]
Mr. Nanava was unable to attend the abandonment hearing
on March 15, 2017. However, Counsel appeared on his behalf. Counsel presented
medical evidence to show cause for Mr. Nanava’s departure from the March 2
hearing, as well as his failure to appear at the March 15 hearing. Counsel also
submitted documents pertaining to a substantive part of Mr. Nanava’s
refugee claim, stating that the submissions should help to show Mr. Nanava’s
intention to proceed with his claim.
[7]
The presiding member reviewed
the medical evidence and concluded that it
did not comply with the requirements to show cause for medical reasons. The member
adjourned the matter to March 22, 2017 for Mr. Nanava and Counsel to present a
medical certificate showing cause why Mr. Nanava’s refugee claim should not be
declared abandoned. Before leaving the March 15 hearing, Counsel advised the presiding
member that he had another hearing scheduled on March 22, 2017, and was not
available on that date. Counsel proposed that the hearing be set for the Monday
prior to March 22, on March 20, 2017. The member denied this request and
maintained the March 22 hearing date.
[8]
On March 22, 2017, neither Mr. Nanava nor his
Counsel appeared for the scheduled hearing. The Member noted that the medical evidence
produced on March 15 did not adequately explain Mr. Nanava’s absence, that
Counsel had been advised of the deficiencies, and that there was no additional information
and no phone call to explain Mr. Nanava’s absence. The Member declared
Mr. Nanava’s refugee claim to be abandoned. That Decision, written and
dated March 27, 2017, is the subject of this application for judicial review.
II.
The Relevant Legislation and Rules
[9]
See Appendix ‘A’ attached to these reasons.
III.
Standard of Review
[10]
When reviewing the abandonment decision of a member
of the RPD, the Court must apply a “reasonableness”
standard of review (Gonzalez v Canada (Minister of Citizenship and
Immigration), 2009 FC 1248, [2009] F.C.J. No. 1600 at paras 14-16; Letaif v
Canada (Minister of Citizenship and Immigration), 2016 FC 1036, [2016]
F.C.J. No. 1001 at paras 2, 20; Ndomba v Canada (Minister of Citizenship and
Immigration), 2014 FC 189, [2014] F.C.J. No. 188 at para. 9; Csikos v
Canada (Minister of Citizenship and Immigration), 2013 FC 632, [2013]
F.C.J. No. 680 at para. 23 [Csikos]; Singh v. Canada (Minister of
Citizenship and Immigration), 2012 FC 224, [2012] F.C.J. No. 242 at para.
22).
IV.
Analysis
[11]
Mr. Nanava contends the Member’s Decision was
unreasonable in light of plain and obvious evidence that he was ill, having
collapsed on the floor during the March 2 hearing, and that he had not intended
to abandon his claim for refugee protection. Conversely, the respondent contends
the Member reasonably decided that Mr. Nanava had abandoned his claim after
Mr. Nanava failed to show on two separate occasions, and failed to provide
a proper medical certificate as evidence of his inability to attend. I agree
with Mr. Nanava.
[12]
In order to decide whether the Member’s
abandonment decision was reasonable, the Court must determine whether
Mr. Nanava’s absences could reasonably be deemed an expression of his
intention to no longer pursue his refugee claim with diligence, bearing in mind
his obligation to provide a reasonable excuse for his failure to appear, as well
as all of the other relevant factors which bear upon the matter (Ahamad
v Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109,
[2000] F.C.J. No. 289 at para. 32-33 [Ahamad]; Csikos at paras
25-26, 35). Under the circumstances, I am not satisfied the Member considered
any factors other than the purported inadequacy of Mr. Nanava’s medical evidence.
Such an approach is inconsistent with the broad language of subsection 65(4) of
the Rules and with the jurisprudence (see e.g: Ahamad at para.
33; Octave v. Canada (Minister of Citizenship and Immigration), 2015 FC
597, [2015] F.C.J. No. 609 at para. 23; Guo v. Canada (Minister of
Citizenship and Immigration), 2015 FC 533, [2015] F.C.J. No. 544).
[13]
Indeed, based on the evidence that was before
the Member, it was unreasonable for the Member to conclude that Mr. Nanava
had shown no interest in pursuing his claim with diligence. This evidence
includes: (1) the fact that Mr. Nanava and Counsel were at Mr. Nanava’s
scheduled refugee claim hearing on March 2, 2017 in order to pursue Mr.
Nanava’s substantive claim; (2) the fact that Mr. Nanava collapsed on the
floor and received emergency medical services during his refugee claim hearing
before being transported from the hearing room to Mount Sinai Hospital by
emergency services staff; (3) Counsel’s appearance at the March 15
abandonment hearing with documents pertaining to a substantive part of Mr.
Nanava’s refugee claim in order to reiterate his client’s intent to pursue his
claim, as well as medical evidence to show cause for Mr. Nanava’s absence from
the abandonment hearing; and (4) Counsel’s attempt to reschedule the March 22
abandonment hearing to an earlier date so he could again reiterate his client’s
intent to pursue his claim and show cause for Mr. Nanava’s absence.
[14]
In short, I conclude that the Member
unreasonably fixated upon the technical deficiencies of Mr. Nanava's medical
certificates and failed to consider other relevant factors in assessing whether
Mr. Nanava had abandoned his claim. As noted above, such an approach is contrary
to subsection 65(4) of the Rules and the jurisprudence. As a result, the
Decision is unreasonable.
[15]
In addition to the above, I note that the RPD’s
decision to embark upon a show cause hearing was also unreasonable. Given that
Mr. Nanava and Counsel attended the scheduled March 2 hearing fully prepared to
argue Mr. Nanava’s refugee claim, and that they were interrupted during the
hearing by medical circumstances beyond Mr. Nanava’s control, it would have been
appropriate to adjourn the substantive hearing to another date. In my view, Mr. Nanava
was not in default in the proceedings. It follows that the conditions necessary
to move into a show cause hearing were not met.
[16]
I would allow the judicial review, set aside the Decision of the Member, and
direct the RPD to determine Mr. Nanava’s substantive refugee claim before
a different Member. No costs are awarded and no
question is certified for consideration by the Federal Court of Appeal.
JUDGMENT in IMM-1641-17
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is allowed without costs;
2. The decision of the Member is quashed;
3. A new hearing is ordered on the substantive issue, namely a refugee
claim made by the Applicant, before a different Member of the Division; and,
4. No question is certified for consideration by the Federal Court of
Appeal.
"B. Richard Bell"
APPENDIX A
Subsection 168 (1) of the IRPA reads:
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Abandonment of proceeding
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Désistement
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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.
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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.
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Rules
65(1), 65(3), and 65(4) to 65(6) of the Refugee Protection Division Rules [Rules],
SOR/2012-256, read:
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Abandonment
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Désistement
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Opportunity to explain
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Possibilité de s’expliquer
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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,
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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 :
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(a) immediately, if the claimant is
present at the proceeding and the Division considers that it is fair to do
so; or
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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;
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(b) in any other case, by way of a
special hearing.
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b) au
cours d’une audience spéciale, dans tout autre cas.
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[…]
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[…]
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Special hearing — failure to appear
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Audience spéciale — omission de se présenter
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(3) The special hearing on the abandonment
of the claim for the failure to appear for the hearing of the claim must be
held no later than five working days after the day originally fixed for the
hearing of the claim.
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(3)
L’audience spéciale sur le désistement de la demande d’asile pour défaut de
se présenter à l’audience relative à la demande d’asile est tenue au plus
tard cinq jours ouvrables après la date initialement fixée pour l’audience
relative à la demande d’asile.
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Factors to consider
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Éléments à considérer
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(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.
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(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.
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Medical reasons
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Raisons médicales
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(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.
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(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.
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Content of certificate
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Contenu du certificat
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(6) The medical certificate must set
out
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(6) Le
certificat médical indique, à la fois :
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(a) the particulars of the medical
condition, without specifying the diagnosis, that prevented the claimant 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; and
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a) sans
mentionner de diagnostic, les particularités de la situation médicale qui ont
empêché le demandeur d’asile 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;
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(b) the date on which the claimant is
expected to be able to pursue their claim.
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b) la
date à laquelle il devrait être en mesure de poursuivre l’affaire.
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