Date: 20040402
Citation: 2004 FC 496
Ottawa, Ontario, April 2nd, 2004
Present: The Honourable Mr. Justice Phelan
BETWEEN:
FARID MEHMOOD ANJUM and ISHRAT PERVEEN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This judicial review concerns a decision by a member of the Immigration and Refugee Board ("IRB") to declare abandoned the Applicants' refugee claim despite the filing of their Personal Information Form ("PIF") well in advance of the abandonment hearing.
[2] This case also involves consideration of the different and conflicting reasons for the determination of abandonment issued by a single member of the IRB.
Background
[3] The Applicants filed a refugee claim on February 25, 2003. Their PIFs were due March 25th, were signed March 24th, 2003 but filed April 7, 2003.
[4] A day after filing their PIFs, the IRB set May 14, 2003 as the date for a show cause hearing for a determination of whether the claim should be considered abandoned.
[5] The day before the abandonment hearing, Applicants' counsel wrote to the IRB and referring to the two week delay in filing their PIF, counsel advised "The delay was due in large part to them acquiring financial assistance from Legal Aid Ontario."
[6] At the abandonment hearing of May 14th, the male Applicant, in response to a question from the IRB as to whether there was any additional reasons for delay, advised that his wife had been ill.
[7] The IRB then went on to say after concluding that no extensions had been sought:
Well the rules are in place to allow an efficient system and yet its fair to claimants. There is flexibility on my part to grant late filings and extensions of time for extraordinary circumstances. But I have not heard any extraordinary circumstances today. In my opinion, the lack of Legal Aid funding is not an extraordinary circumstance.... Any medical evidence I've heard today in my opinion is certainly insufficient for me to grant the extension.
[8] Despite the male Applicant's attempt to explain the medical circumstances further, the IRB cut him off saying "...I'm going to abandon your case".
[9] On June 13, 2003, the IRB issued its Notice of Abandonment Decision stating that the Applicants did not appear at the abandonment hearing and therefore declared the claim abandoned.
[10] The Applicants applied for judicial review. They also applied to reopen the decision. In those proceedings the Applicants relied on the reasons for the decision - the failure to appear and the obvious error of fact in the reasons. The application to reopen was denied.
[11] After judicial review proceedings commenced in July, the IRB sent out an Amended Notice of Abandonment Decision in which the reasons where changed to read:
You and your counsel appeared at the hearing but did not show cause why the RPD should not declare your claim to be abandoned.
[12] The Certified Tribunal Record (that record came to the Court in three separate installments which suggests some confusion in IRB administration) contained a form of endorsement by the IRB, not previously given to the Applicants, which noted the reasons for decision as:
- not sufficient reasons legal aid delay
- medical evidence not sufficient
[13] Even more telling is that the Endorsement Form used for a "No PIF Show Cause Hearing" contains two boxes to be marked in response to two questions:
Was the PIF submitted prior to the no PIF show cause date?
Or/ Was the PIF submitted on the no PIF show cause date?
[14] Neither question was marked off.
[15] It is important to note that the Notice to Appear advises claimants that at the show cause hearing, they should also be prepared to proceed on that day with the merits of their claim.
Analysis
[16] Despite the Respondent's argument that the standard of review for an abandonment decision should be patent unreasonableness because the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides a claimant with the safety net of a Pre-Removal Risk Assessment ("PRRA") process, I reject that submission.
[17] Lemieux J. in Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 analysed the function of the Convention Refugee Determination Division (the IRB's predecessors) and the nature of the decision to be made on an abandonment case. He held that the standard of review is reasonableness because the decision is of mixed law and fact. That conclusion remains good law despite the changes in legislation.
[18] I would go further in this case because the IRB's jurisdiction and the decision under review is circumscribed by certain legal criteria; a factor not involved in Ahamad, supra. As to the proper question to which the IRB must direct itself, that is a matter of law for which the standard is correctness.
[19] The next issue is which of the IRB's many versions is the decision and reasons. It is now clear that the real reasons of the IRB were contained in the endorsement, not in the Notice of Abandonment Decision (which referred to the failure to appear).
[20] As to the legal effect of these various versions of the reasons, neither counsel could point the Court to any provision which authorized the IRB to amend its reasons for decision. The nature of the decision was final not interlocutory. Absent any authority to do so, I question whether the Amended Notice can have any legal effect. This is not a case of some minor technical amendment.
[21] If the Applicants are to be held strictly to the statutory time limits and no regard given to the substance of their circumstances, then the IRB should be held to an equally strict standard. In fairness, the Respondent ought not to be able to escape the consequences of the IRB's error. However, I need not decide this case on that issue.
[22] Assuming that the comments at the May 14th hearing, the Endorsement Form and the Amended Notice are the true reasons for the decision, the IRB erred in its decision to declare the refuge claim abandoned.
[23] The core of the IRB's jurisdiction to make an abandonment determination is ss. 168(1) of IRPA:
| 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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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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[24] The phrase "default in the proceedings" appears in the context of other phrases which indicate legislative intent to deal with the disregard of the IRB's process, deliberate or negligent. The failure to appear, to provide information, to communicate, each have an element of disregard for the workings of the IRB. A simple late filing, per se, does not connote such an element of disregard.
[25] There is in fact no such evidence of disregard. The request for legal aid was promptly filed, the PIFs were filed at the earliest opportunity after counsel was authorized to act. The Applicants proceeded as diligently as possible with this claim.
[26] Rule 58(3) of the Refugee Protection Division Rules circumscribes further the discretion of the IRB in abandonment hearings.
| The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings. [Emphasis added] |
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Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire. [soulignement ajouté]
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[27] The IRB did not ask itself the right question. It asked whether there were "extraordinary circumstances" in this case. That legal test is not found in the rules governing abandonment.
[28] The IRB referred to the evidence being insufficient for purposes of an extension. This was an abandonment case where the inquiry must be directed at the true intention and actions of the claimant in order to conclude that the claim is abandoned. It was not a request for extension of time under Rule 6(2) which parenthetically does not impose a criterion of "extraordinary circumstances" either.
[29] The IRB never directed its attention to the question of whether the Applicants were ready to proceed with their claim. In fact, the IRB failed to mark off its internal document, the Endorsement Form, which posed that relevant question.
[30] All of the above are failures to properly address the legal criteria under which abandonment cases must be considered.
[31] The IRB ignored such factors as the timely steps taken to secure legal aid, the shortness of the delay in filing the PIFs, the fact that the PIFs were filed, the legal consequences which flow if counsel files PIFs before securing a proper mandate and, lastly, the intent of the Applicants to proceed with this claim.
[32] It is no answer, as suggested by the Respondent, that there is no real prejudice because the Applicants have recourse to a PRRA determination. The Applicants are entitled to have the abandonment issue determined on proper legal grounds.
[33] For all of these reasons, the application for judicial review will be granted. The IRB is to proceed with the Applicants' claim.
[34] There is no question to be certified.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is granted.
2. The decision of the IRB determining that the Applicants' claim for refugee protection abandoned is quashed.
3. The Applicants' refugee claim is remitted to the IRB for determination by a different member.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5314-03
STYLE OF CAUSE: FARID MEHMOOD ANJUM and ISHRAT PERVEEN
and
MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 23, 2004
REASONS FOR ORDER: PHELAN J.
DATED: April 2, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT |
FEDERAL COURT
TRIAL DIVISION
Date: 20040402
Docket: IMM-5314-03
BETWEEN:
FARID MEHMOOD ANJUM and ISHRAT PERVEEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER