Date: 19990713
Docket: IMM-4351-98
OTTAWA, ONTARIO, THE 13th DAY OF JULY 1999
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
LILIANE KAVUNZU
Applicant
- and -
THE MINISTER
| Respondent |
ORDER
The application for judicial review is dismissed.
MARC NADON
Judge
Certified true translation
Peter Douglas
Date: 19990714
Docket: IMM-4351-98
OTTAWA, ONTARIO, THE 14th DAY OF JULY 1999
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
LILIANE KAVUNZU
Applicant
- and -
THE MINISTER
| Respondent |
AMENDED ORDER
The application for judicial review is allowed.
MARC NADON
Judge
Certified true translation
Peter Douglas
Date: 19990713
Docket: IMM-4351-98
Between:
LILIANE KAVUNZU
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
NADON J.:
[1] Through her application for judicial review, the applicant challenges the decision dated August 19, 1998, by the Convention Refugee Determination Division (the Refugee Division), which declared her refugee claim to have been abandoned.
[2] The applicant is a citizen of the Democratic Republic of the Congo (former Zaire). She is 37 years old and the mother of four children. She came to Canada on May 11, 1998, and claimed refugee status.
[3] Among the documents she was given in the "refugee kit" on arrival in Canada was form IMM-5292, which stated, inter alia , that she was to appear on July 7, 1998, at 1:15 p.m. at the office of the Immigration and Refugee Board [TRANSLATION] "for your refugee claim to be considered".
[4] On June 10, 1998, the applicant filed her personal information form, and on June 25, 1998, her counsel sent the Refugee Division further documents.
[5] On July 7, 1998, the applicant did not appear at the office of the Immigration and Refugee Board. However, she appeared on July 8, 1998, and was informed that her claim could not be considered that day and that she would in due course receive a notice to appear.
[6] On July 23, 1998, the Refugee Division issued the applicant a [TRANSLATION] "Notice to Appear for an Abandonment of a Convention Refugee Claim". The text of this notice reads, in part, as follows [TRANSLATION]:
| You were directed to appear on July 23, 1998, when your refugee claim was called for hearing, but you failed to proceed with your claim on that occasion. |
| Under paragraph 69.1(6)(c) of the Immigration Act and Rule 32 of the Convention Refugee Determination Division Rules, a hearing into your failure to attend that hearing will take place at: |
| The Immigration and Refugee Board |
| Guy-Favreau Complex |
| 200 René-Lévesque Boulevard West |
| East Tower, Suite 102 |
| Montréal, Quebec H2Z 1X4 |
| Tel.: (514) 283-7733 |
| Fax: (514) 283-0164 |
| on August 19, 1998, Room ABN2, at 0830 hours or as soon as possible after that time. |
| If you fail to appear at that time and place to explain why your claim should not be declared abandoned, the Refugee Division may declare your claim to have been abandoned. This means that you would lose the right to have your claim heard by the Refugee Division. |
| If your claim is declared NOT to have been abandoned, you should be prepared to proceed with the hearing of your Convention refugee claim at that time. The Refugee Division will not permit your hearing to be unreasonably delayed. You should therefore take steps to ensure that, on the scheduled date, your witnesses (if any) are present and you have three copies available of any documents you wish the Refugee Division to consider. |
[7] In my view, there can be no doubt that when she received this notice to appear, the applicant was to understand that she had been directed to appear at the office of the Refugee Division on August 19, 1998, at 8:30 a.m. to explain why she had not appeared when called on July 23, 1998. The text of the notice to appear cannot give rise to any other interpretation.
[8] The applicant and her counsel, Mr. Langlois, appeared at the office of the Refugee Division on August 19, 1998. The transcript of the hearing1 of August 19, 1998, clearly shows that the direction to appear did not relate to the applicant"s failure to appear on July 23, 1998, but rather to her absence of July 7, 1998. After reading the transcript, in my view there is no doubt that the applicant and her counsel appeared on August 19, 1998, to respond to the notice to appear she had received, according to which she had failed to appear on July 23, 1998.
[9] At the hearing, the panel members realized that the notice to appear was incorrect and therefore took it upon themselves to amend it to read July 7, 1998. In my view, under the circumstances, the Refugee Division could not amend the notice at the hearing.
[10] There can be no doubt that the applicant intended to respond to the notice to appear by asserting that she had never received a notice to appear for July 23, 1998, and therefore could not be faulted for being absent on July 23.
[11] In my view, after finding the error in the notice to appear, unless it obtained consent from the applicant and her counsel, the Refugee Division had to give the applicant a new notice regarding her absence of July 7, 1998. The Refugee Division could not, in my view, proceed as it did. I can only conclude that the Refugee Division breached the rules of natural justice.
[12] The Refugee Division"s decision will therefore be quashed, and the matter will be referred back to a different panel. A new notice to appear will therefore have to be issued and sent to the applicant, requesting that she appear to justify her absence of July 7, 1998. The application for judicial review is accordingly allowed.
[13] Before concluding, I would like to make a few additional comments. In the week of July 5, 1999, I sat on immigration matters in Montréal, and this was the third case I heard on the same legal issue, namely a declaration by the Refugee Division that the claimant had abandoned his or her claim.
[14] In all three cases, the claimant failed to appear when called as directed by form IMM-5292, which is part of the "refugee kit" issued when the refugee claim is filed. In all three cases, the date set [TRANSLATION] "for your refugee claim to be considered" was within two or three months of the claimant"s arrival in Canada.
[15] For the sake of this discussion, I take for granted that the reasons given by claimants to justify their absences were not acceptable to the Refugee Division. For the sake of the discussion, I also take for granted that it was not unreasonable for the Refugee Division to find that the reasons for the absences were not acceptable. With respect to the reason for the absence of the claimant in this case, it seems obvious to me that the Refugee Division"s finding was not unreasonable. The claimant did not appear on July 7, 1998, on the ground that she [TRANSLATION] "was so ill that I had to get medication from the Jean Coutu pharmacy near where I live". She did not telephone or attempt to contact the Refugee Division to say that she would be absent. In view of the importance of a refugee claim, it is very surprising that the claimant made no effort to appear or at the very least contact the Refugee Division. Therefore, I can only agree with the Refugee Division, which found that the reason for absence was not acceptable.
[16] The Refugee Division declared the claims to have been abandoned pursuant to subsection 69.1(6) of the Immigration Act, which provides the following:
| (6) Where a person who claims to be a Convention refugee |
(6) La section du statut peut, après avoir donné à l'intéressé la possibilité de se faire entendre, conclure au désistement dans les cas suivants_: |
| (a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim, |
a) l'intéressé ne comparaît pas aux date, heure et lieu fixés pour l'audience; |
| (b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or |
b) l'intéressé omet de lui fournir les renseignements visés au paragraphe 46.03(2); |
| (c) in the opinion of the Division, is otherwise in default in the prosecution of the claim, |
c) elle estime qu'il y a défaut par ailleurs de sa part dans la poursuite de la revendication. |
| the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned and, where it does so, the Refugee Division shall send a written notice of its decision to the person and to the Minister. |
Si elle conclut au désistement, la section du statut en avise par écrit l'intéressé et le ministre. |
[17] The Refugee Division is apparently of the view that an absence such as the applicant"s absence when directed to appear on July 7, 1998, constitutes "default" within the meaning of paragraph 69.1(6)(c ). In other words, the Refugee Division apparently interprets the paragraph as though any absence when directed to appear constituted "default". For the purposes of this case, I do not intend to decide the point or to give any directions to the Refugee Division. However, I do wish to point out to the Refugee Division that the interpretation it apparently means to adopt is not self-evident. It seems to me that the "default" has to be interpreted having regard to all the circumstances of the case, i.e., the date of the claimant"s arrival, whether or not a personal information form was filed, whether or not counsel was retained in a timely manner, one or more previous absences when directed to appear, etc. Therefore, in my view, when a claimant fails to comply with an appearance date, the Refugee Division should have regard to all of the circumstances I have mentioned in deciding whether the claimant in the case before it "is otherwise in default in the prosecution of the claim".
[18] As I said above, I am not deciding the point. In the case at bar, in my view, it is better that Mr. Langlois raise it if and when his client receives a new notice to appear regarding her absence of July 7, 1998.
Ottawa, Ontario MARC NADON
July 13, 1999 Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4351-98
STYLE OF CAUSE: LILIANE KAVUNZU v. M
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 8, 1999
REASONS FOR ORDER OF NADON J.
DATED JULY 13, 1999
APPEARANCES:
PIERRE LANGLOIS FOR THE APPLICANT
CHRISTINE BERNARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
PIERRE LANGLOIS FOR THE APPLICANT
CHRISTINE BERNARD
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 The transcript of the hearing of August 19, 1998, is incomplete. According to the text of the transcript itself, [TRANSLATION] "the start of the hearing is not on the cassette".