Date: 20050505
Docket: IMM-3760-04
Citation: 2005 FC 629
BETWEEN:
LUZ MILIAN RODRIGUEZ RODRIGUEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Applicant applied for judicial review of a second decision by the Refugee Protection Division ("RPD") of the Immigration and Refugee Board refusing to reopen her claim for protection. This case centres on her alleged notice to the RPP of her change of address.
FACTS
[2] The Applicant, a citizen of Costa Rica, filed a refugee claim based upon her fear of an abusive partner and the lack of state protection for her in Costa Rica.
[3] Ms Rodriguez claimed that she sent a letter via fax to the RPD informing it of her third change of address.
[4] Shortly after filing her claim in which she gave her first address , the Applicant moved but did not advise the RPD of this second address. A Notice to Appear for a hearing was sent to the first address. The Applicant did not appear for the hearing; abandonment proceedings were commenced.
[5] During the course of the abandonment process there were four (4) show-cause abandonment hearings scheduled. Notice to Appear at the first two hearings were sent to the Applicant only. Notices to Appear at the last two hearings were sent to the Applicant and her then counsel.
[6] On November 19, 2003, the RPD issued a Notice of Abandonment citing the Applicant's failure to appear at the latter two hearing as the basis for the decision.
[7] The Applicant filed her first application to re-open the abandonment decision by letter purporting to attach the fax to the RPD informing it of her third change of address. The RPD did not receive the attachment.
[8] The RPD confirmed that the relevant notices were sent to the first address - the only one then on file. The RPD Member noted that none of the notices sent were returned by Canada Post as undeliverable. On this basis, the Member held that there was no breach of natural justice and the application to re-open was dismissed. The Member was the same person who signed the abandonment decision.
[9] The Applicant then filed a second motion to re-open buttressed with her affidavit and several exhibits. One of the exhibits was a fax cover sheet addressed to a Board fax number but otherwise without any information about what was faxed or by whom.
[10] The same Member dismissed this second re-opening. She noted that Notices to Appear were sent to both the Applicant and her counsel - neither of whom appeared when scheduled. She reiterated the evidence submitted in the first re-opening application.
[11] The Member then went on to note that these was no substantive new evidence or argument; that the Applicant says she lost the letter sent to the RPD; that the fax machine she used was old and that the date on the fax transmission receipt is wrong. The Member again noted that the Board's case management system had no record of receipt of the fax. Given all these circumstances the Member said;
I find, given the evidence, on a balance of probabilities, the claimant is lying about notifying the IPB of her new address in July 2003.
[12] The Applicant has take extreme umbrage at this conclusion and has attack the decision as showing bias or giving rise to a reasonable apprehension of bias.
REASONS
[13] The governing provisions is Rule 55 of the Refugee Protection Division Rules.
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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. ...
(4) The Division must allow the applicant 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. ...
(4) La section accueille la demande sur preuve du manquement à un principe de justice. |
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[14] The Applicant was given more opportunities in the course of her dealing with the Board than most applicants. Four notices of hearing and two of which went to counsel; yet even counsel did not appear. The Applicant also had two re-opening applications when she was only entitle to one. In my view it was open to the Member and would have been appropriate to dismiss the second application as res judicata.
[15] The fact that the same Member decided both re-opening applications and signed the Abandonment Decision raises no legitimate grounds of attack per se. The case of Arthur v. Canada (Minister of Citizenship and Immigration), [1993] 1 F.C. 94 confirmed that the mere fact of a second hearing before the same adjudicator, without more, does not give rise to a reasonable apprehension of bias.
[16] The Member's signature on the Abandonment Decision is a purely administrative act based entirely on the objective fact that neither the Applicant nor her counsel appeared at the scheduled hearings.
[17] There was nothing said or done in the first re-opening decision which would preclude the Member from hearing the second application.
[18] The second re-opening application, like the first, is restricted to the issue of whether there had been a breach of national justice in the Abandonment Decision. The Applicant's alleged health and emotional difficulties, about which the Applicant had never informed the RPD, would not be relevant to the natural justice issue.
[19] The Applicant filed an affidavit that she had sent a letter (a letter which was not produced), on a fax machine that provided an incorrect date of transmission. In other words, what was before the Member was a bald statement as to the filing of a letter without any supporting evidence. This was contrasted against the other evidence, all of which was consistent with a person abandoning a refugee claim.
[20] Against this background, the Member made a credibility finding against the Applicant. This is a decision which was open to the Member on the basis of all of the circumstances. There is no evidence of actual bias nor, in my view, is there any reasonable apprehension that, due to the past involvement in this matter, the Member's actions or decision give rise to a reasonable apprehension of bias.
[21] As to the Member's conclusion that there was no breach of natural justice, the Court is of the opinion that the Member was correct.
[22] Therefore this application for judicial review will be dismissed.
[23] There is no question for certification.
(s) "Michael L. Phelan"
Judge
Names of Counsel and Solicitors of Record
DOCKET: IMM-3760-04
STYLE OF CAUSE: LUZ MILLIAN RODRIGUEZ RODRIGUEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY APRIL 26, 2005
REASONS FOR ORDER
AND ORDER BY: PHELAN, J.
DATED: May 5, 2005
APPEARANCES BY: Mr. Jeffrey L. Goldman For the Applicant
Janet K. Chisholm For the Respondent
SOLICITORS OF RECORD:
Mr. Jeffrey L. Goldman
Barrister and Solicitor
425 University Ave., Suite 500
Toronto, Ontario
M5G 1T6 For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20050426
Docket: IMM-3760-04
BETWEEN:
LUZ MILLIAN RODRIGUEZ RODRIGUEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER