Date: 20040819
Docket: IMM-6708-03
Citation: 2004 FC 1153
Toronto, Ontario, August 19th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
HAMAD ALI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Hamad Ali seeks judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated August 6, 2003, which dismissed Mr. Ali's application to have his claim for refugee protection reopened pursuant to Rule 55 of the Refugee Protection Division Rules, SOR/2002-228 (the "RPD Rules"), as it had previously been declared abandoned. For the reasons set out below, I conclude that the Board committed no reviewable error and accordingly, this application will be dismissed.
BACKGROUND
[2] Mr. Ali is a 23-year old citizen of Pakistan. He came to Canada in August 1999 on a visitor's visa, and then obtained a student visa in February 2000. In late February 2003, the applicant attests that he came to the realization that the situation in Pakistan had not improved and that he would face persecution if returned there. He then initiated a refugee claim and was deemed eligible to proceed with his claim on March 5, 2003. At this time, the respondent's department, Citizenship and Immigration Canada ("CIC") seized the identity documents which the applicant had in his possession and provided him with a notice of seizure, outlining the documents which it had seized. This seizure was done because the CIC officer believed that some of his identity documents were fraudulent.
[3] The applicant's completed Personal Information Form ("PIF") was due 28 days after he received it on March 5, 2003. He failed to submit this to the Board on time and was required to attend an abandonment hearing on May 14, 2003 to explain why his refugee claim should not be declared abandoned.
[4] The applicant and his counsel attended the abandonment hearing and submitted the applicant's PIF at that time. The applicant told the Board that he had applied for legal aid assistance upon making his claim and was still waiting for a response when the deadline for submitting his PIF was missed. He did not intend to abandon his claim and the late filing of his PIF was due to his financial difficulties in not being able to afford a lawyer without legal aid assistance.
[5] The Board did not accept Mr. Ali's explanations as demonstrating a clear intention to pursue his refugee claim, therefore it declared the applicant's claim to be abandoned by notice dated May 20, 2003. The applicant did not seek judicial review of this decision, but subsequently filed an application in mid-July, 2003 with the Board, pursuant to Rule 55(1) of the RPD Rules, requesting that the Board reopen his refugee claim. This application was denied by the Board in writing on August 6, 2003.
The Board's Decision
[6] The notice of decision, dated August 6, 2003 stated as follows:
On July 17, 2003 the Refugee Protection Division (RPD) received your application to have your claim for refugee protection reopened.
YOUR APPLICATION IS DISMISSED.
[7] In response to Rule 9(2) of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, the Registrar of the Board sent the following notes to this Court as reasons for the decision under review:
As there was no statutory requirement, no formal reasons were given for the decision.
The following endorsement appears in the file:
"Failure to meet the PIF deadline due to counsel's endeavour to satisfy himself regarding the claimant's identity (counsel's motion, paragraphs 3-7) are not valid reasons for not complying with Rule 6 of the RPD rules. Likewise, Legal Aid delays alone are not considered satisfactory to delay the filing of the PIF. In my opinion, the decision to declare the applicant's claim abandoned due to the late filing of the PIF (one month and 12 days late) ...did not breech [sic] the principles of natural justice.
Date: 06/08/03 Decided by: V. Bubrin"
ISSUES
[8] 1. Were reasons required for this decision under section 169 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA")?
2. If reasons were required under s.169, were those provided adequate?
3. Did the Board err in failing to consider the applicant's intent to pursue his refugee claim in determining whether the Board should reopen his refugee claim?
ANALYSIS
[9] The applicant submits that the "curt" endorsement on the file, provided by the Registrar of the Board as reasons, does not satisfy the principles of procedural fairness as adequate reasons and also breaches section 169(b) of IRPA. The applicant argues that the Board's dismissal of his application to reopen his refugee claim was not an interlocutory, but a final decision. The Board became functus after this time, and therefore being a final decision, the Board had an obligation pursuant to section 169(b) of IRPA to provide "clear and proper" written reasons.
[10] The applicant submits that the Board merely provided boilerplate statements and there was no analysis, assessment or way of knowing what factors and evidence the Board relied upon in making this critical decision determining that his refugee claim should not be reopened. The applicant relies on the decision of Kanapathapillai v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1110 (T.D.) (Q.L.).
[11] The applicant submits that he is denied the ability of understanding and scrutinizing the reasonableness of the Board's decision and the consequence of the decision has a major impact on his life and security of person. Therefore, the applicant requests that this Court find that the Board erred in law in not fulfilling the requirement of section 169(b) and also that it breached a principle of procedural fairness in not providing adequate reasons.
[12] The respondent on the other hand argues that the Board was not required, pursuant to either IRPA or the RPD Rules, to provide reasons for its decision to refuse the application to reopen a refugee claim. The respondent submits that the decision under review is an interlocutory one, therefore the duty to provide reasons under section 169 does not arise. This decision, when viewed in its statutory context, is one which can only be contemplated after a final decision has been made to declare a refugee claim abandoned. The respondent relies on Faghihi v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 249 (T.D.), aff'd (2001), 274 N.R. 358 (F.C.A.) in support of its argument that a decision to reopen a refugee claim that has been declared abandoned is an interlocutory one.
[13] The respondent also refers to subsection 169(d) of IRPA in support of its position. This provision states that written reasons are required where the Board rejects a claim. In a motion to reopen, the merits of the refugee claim are not at issue, therefore the only issue is whether there was a breach of natural justice in declaring the claim abandoned.
[14] In the alternative, the respondent submits that the Board did indeed provide adequate reasons for this decision, in line with the standard set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The respondent relies on the decision of Stumf v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 313, rev'd on other grounds (2002), 289 N.R. 165 (F.C.A.) where it was held that formal written reasons were not required in a decision not to reopen a claim that had been declared abandoned because the Board was not deciding the merits of the refugee claim. In that case, a Board member's handwritten reasons met the standard set out in Baker, supra, as they explained the reasons for the Board's conclusions. Similarly, it is the respondent's position that the handwritten reasons found on the tribunal record at page 67 meet this standard. These are identical to the typed endorsement provided by the Registrar of the Board to this Court and the applicant as the reasons for decision (see paragraph 8 above).
[15] Rule 55 of the RPD Rules provides that refugee claimants may file an application to reopen a refugee claim that has been declared abandoned as follows:
| 55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned.
(2) The application must be made under rule 44.
(3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister.
(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
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55. (1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement.
(2) La demande est faite selon la règle 44.
(3) Si la demande est faite par le demandeur d'asile, celui-ci y indique ses coordonnées et en transmet une copie au ministre.
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle. |
[16] Section 169 of IRPA, in its entirety, provides:
| 169. In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
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169. Les dispositions qui suivent s'appliquent aux décisions, autres qu'interlocutoires, des sections :
a) elles prennent effet conformément aux règles;
b) elles sont motivées;
c) elles sont rendues oralement ou par écrit, celles de la Section d'appel des réfugiés devant toutefois être rendues par écrit;
d) le rejet de la demande d'asile par la Section de la protection des réfugiés est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e) les motifs écrits sont transmis à la personne en cause et au ministre sur demande faite dans les dix jours suivant la notification ou dans les cas prévus par les règles de la Commission;
f) les délais de contrôle judiciaire courent à compter du dernier en date des faits suivants : notification de la décision et transmission des motifs écrits.
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[17] Rule 61 of the RPD Rules also deals with the provision of reasons:
| 61. (1) When the Division makes a decision, other than an interlocutory decision, it must provide a notice of decision in writing to the claimant or the protected person, as the case may be, and to the Minister.
(2) If it rejects a claim, the Division must provide the notice of decision, together with written reasons for the decision, to the claimant and the Minister.
(3) If the reasons of the Division indicate that it has allowed a claim for refugee protection after determining that sections E or F of Article 1 of the Refugee Convention do not apply, the Division must provide the notice of decision and written reasons for the decision to the claimant and the Minister.
(4) When the Division makes a decision on an Application to Vacate Refugee Protection or an Application to Cease Refugee Protection, the Division must provide to the parties, together with the notice of decision, written reasons for the decision.
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61. (1) Lorsqu'elle rend une décision autre qu'interlocutoire, la Section transmet par écrit un avis de décision au demandeur d'asile ou à la personne protégée, selon le cas, et au ministre.
(2) En cas de rejet d'une demande d'asile, la Section transmet au demandeur d'asile et au ministre, avec l'avis de décision, les motifs écrits de la décision.
(3) Dans le cas où elle indique dans les motifs de sa décision qu'elle accueille la demande d'asile après avoir conclu que les sections E ou F de l'article premier de la Convention sur les réfugiés ne s'appliquent pas, la Section transmet au demandeur d'asile et au ministre, avec l'avis de décision, les motifs écrits de la décision.
(4) Lorsqu'elle rend une décision à l'égard d'une demande d'annulation ou d'une demande de constat de perte d'asile, la Section transmet aux parties, avec l'avis de décision, les motifs écrits de la décision.
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Rule 62 comments on the provision of reasons at the request of a claimant or the Minister when a claim has been allowed. That is clearly not the situation in this case.
[18] In my view, the decision of Faghihi, supra, provides guidance with regards to the question as to whether a decision made on an application under Rule 55(1) of the RPD Rules is an interlocutory or a final one. In that decision, dealing with a motion to reopen made under the former immigration legislation and former Board Rules,[1] Justice Evans, as he then was, stated as follows at page 260:
I am prepared to assume for present purposes that a motion to reopen a decision is an "interlocutory matter" because, if granted, it will not be a final disposition of the case. It will simply open the gate to a redetermination of the claim by the Refugee Division in accordance with section 69.1.
[19] Faghihi, supra dealt with a motion to reopen a refugee claim that had been heard on its merits and, as noted, the statutory scheme examined in that case was different. Nonetheless, I can see no cogent reason to depart from this reasoning with regards to determining whether an application to reopen made under Rule 55 is an interlocutory or final one. If the applicant had been successful, it would have reopened his refugee claim and allowed it to proceed on its merits. The denial of such an application merely confirms what was already the status quo, that is, that his refugee claim had been declared abandoned. It is interlocutory, and therefore, the requirements of section 169 of IRPA do not come into play. Furthermore, Rule 61 of the RPD Rules is not applicable. Rule 61(2) speaks of the requirement of written reasons where the Board "rejects" a claim. In my view, this can only refer to the situation where a refugee claim is rejected on its merits, and not an application that is dismissed under Rule 55. However, these findings do not end the matter, as the common law of procedural fairness requires some form of reasons.
[20] Given the importance of the application to reopen decision for the applicant, in that having his refugee claim declared abandoned precludes his ability to present his claim of persecution in Pakistan on its merits, some form of written reasons must be provided to the applicant on request. As the statutory scheme does not mandate that written reasons must be provided, an applicant nonetheless should have the ability to request some form of reasoning from the Board, that goes beyond the mere statement that their application to reopen has been dismissed. In this case, the applicant has received reasons, in the form of the Registrar of the Board's response to Rule 9(2) of the Federal Court Immigration and Refugee Protection Rules. These are sufficient as they set out the Board member's actual reasons for decision, giving the applicant an understanding of why his application to reopen was rejected.
[21] The applicant next submits that the Board failed to correctly assess whether the abandonment decision had been made absent a breach of natural justice. The applicant refers to the correct test to be applied in abandonment decisions, articulated in Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.), that is whether after taking into consideration all the circumstances and the relevant facts, the applicant's behaviour indicates, in clear terms, a wish or intention not to proceed with his claim.
[22] The applicant submits that the evidence indicated he and his counsel had been diligent in attempting to put forward his PIF and that the brief "endorsement" of the Board makes no mention of the test set out in Ahamad, supra, or of the Board having any regard to the applicant's intention to pursue his refugee claim. The applicant argues that this is a breach of natural justice. The applicant relies on two decisions of this Court dealing with abandonment decisions of the Board: Alegria-Ramos v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 150 and Lopez v. Canada (Minister of Citizenship and Immigration) (2000), 193 F.T.R. 97. While these decisions were judicial reviews of the abandonment decisions themselves, the applicant submits that they are applicable to decisions not to reopen refugee claims that have been declared abandoned, as they stand for the proposition that the Board has a duty to provide reasons which clearly show that it turned its mind to the intent of an applicant to pursue his refugee claim. The Board's failure to include any such analysis in its reasons amounts, according to the applicant, to an error in law.
[23] The respondent however submits that the Board has no inherent or continuing jurisdiction to reopen a claim for refugee status, and may only do so where a breach of natural justice has been established: Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.). The respondent argue that Rule 55 of the RPD Rules provides that a refugee claim that has been declared abandoned may only be reopened if the applicant is able to demonstrate that a principle of natural justice has been violated. The respondent notes that the applicant provided no evidence before the Board or before this Court to demonstrate a breach of procedural fairness in the abandonment decision.
[24] At first blush, the wording of Rule 55 of the RPD Rules appears to permit the consideration of applications to reopen on any ground and the only factor which mandates that the decision must be a positive one for the claimant is the establishment of a breach of natural justice. However, on closer inspection I am satisfied that the correct interpretation is that applications to reopen may only be allowed where a breach of natural justice can be established.
[25] Under the former immigration scheme, there was no express procedure permitting motions to reopen refugee claims that had been decided or ones that had been declared abandoned, however, such motions were made under Rule 28 of the former Rules, pursuant to jurisprudence such as Longia, supra, that established that the Board has inherent jurisdiction to reopen a refugee claim only where a principle of natural justice has been breached. In my opinion, such interpretation is what was intended to be codified in the new RPD Rules. I note that this interpretation of Rule 55 of the RPD Rules was recently applied by this Court in Wackowski v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 315 (F.C.) (Q.L.) at para. 12.
[26] The applicant received notice of his abandonment hearing and he attended with a representative from his counsel's office, providing explanations as to why his PIF was filed late. The Board did not accept such explanation as demonstrating a clear intention to pursue his refugee claim in a diligent manner. He did not seek judicial review of that decision, but instead chose to make an application to the Board to reopen his refugee claim in July 2003. Under this limited provision, the Board reviewed the file and found that the abandonment decision was made in a manner that did not breach the principles of natural justice. In my view, the applicant has not demonstrated the existence of a reviewable error in this decision, and therefore this Court cannot intervene. No question was proposed for certification.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6708-03
STYLE OF CAUSE: HAMAD ALI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 18, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: AUGUST 19, 2004
APPEARANCES BY:
Ms. Kareena Thompson
FOR THE APPLICANT
Ms. Rhonda Marquis
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Blanshay & Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040819
Docket: IMM-6708-03
BETWEEN:
HAMAD ALI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
[1] Immigration Act, R.S.C. 1985, c. I-2 and the Convention Refugee Determination Division Rules, SOR/93-45.