Date: 20040720
Docket: IMM-4677-03
Ottawa, Ontario, July 20, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MARK LABOK
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] When Mark Labok failed to file his Personal Information Form (PIF) within the time specified by the Immigration and Refugee Board, the Board scheduled an abandonment hearing. When he failed to appear at the abandonment hearing, the Board ruled that Mr. Labok's refugee claim had been abandoned. Mr. Labok then brought an application to have his refugee claim reopened. This application was dismissed on the basis that Mr. Labok failed to provide a satisfactory explanation for either his failure to file his PIF, or his failure to appear at the abandonment hearing.
[2] Mr. Labok now seeks to have this decision set aside, claiming that he provided a reasonable explanation for his failure to appear at his abandonment hearing, and that this explanation should have been accepted by the Board.
Chronology of Events
[3] Mr. Labok's application for refugee protection was referred to the Immigration and Refugee Board on January 28, 2003. According to the Notice of Referral dated January 29, 2003, Mr. Labok had indicated from the outset that he was being represented by Jane Katkova-Brown. Ms. Katkova-Brown is an immigration consultant in Toronto.
[4] On January 28, Mr. Labok was advised that his refugee hearing was set for April 25, 2003. He was also provided with a blank copy of the PIF form, and was told that he had 28 days in which to file the completed form with the Board.
[5] Although Mr. Labok had previously indicated that he was being represented by an immigration consultant, he evidently made an effort to obtain the services of a lawyer. He was unable to do so, however, for financial reasons.
[6] Mr. Labok did not file his PIF within the specified time period, nor did he apply for an extension of time in which to file his PIF.
[7] On March 13, 2003, the Immigration and Refugee Board wrote to Mr. Labok, advising that because he had failed to file his PIF within the 28 day period, the April 25, 2003 date for his refugee hearing was cancelled. Instead, Mr. Labok was told to appear before the Board on March 28, 2003 for an abandonment hearing. A copy of this notice was also sent to Ms. Katkova-Brown.
[8] When neither Mr. Labok nor Ms. Katkova-Brown appeared at the abandonment hearing, Mr. Labok's refugee claim was declared to have been abandoned. Mr. Labok and Ms. Katkova-Brown were notified of this fact by letter from the Board dated April 22, 2003.
[9] On May 13, 2003, Mr. Labok filed an application to reopen his claim. Included with his application materials was a copy of his completed PIF. According to the affidavit material filed in support of his request, both Ms. Katkova-Brown and Mr. Labok's daughter misread the March 13 notice, and had thought that the abandonment hearing was set for April 25. Ms. Katkova-Brown deposes that it was not until the week of April 14, 2003 that she realized her error.
The Board's Decision
[10] The Board found that Mr. Labok failed to provide an adequate explanation for his failure to file his PIF within the 28 day period. The Board noted that Legal Aid delays alone are not sufficient reason to delay filing a PIF on time. The Board also did not accept that both Ms. Katkova-Brown and Mr. Labok's daughter misread the notice regarding the abandonment hearing. This explanation was all the more unlikely, in the Board's view, given that Ms. Katkova-Brown was an experienced immigration practitioner.
[11] The Board observed that Mr. Labok was highly educated, and had travelled to Canada and the United States on several previous occasions. There was nothing in the record to indicate that he was unable to appreciate the nature of the proceedings, or that he required a designated representative to assist him in pursuing his claim.
[12] The Board went on to say: "Even if I were to accept that there was some sort of innocent misunderstanding, which I do not, I note that the applicant's PIF was filed only on May 13, 2003, some two months and t[h]ree weeks after the original due date and some three weeks after April 25, 2003 ...". April 25 was the date that Ms. Katkova-Brown thought had been fixed for Mr. Labok's abandonment hearing.
[13] Despite the difficulties that Mr. Labok says that he encountered in connection with the preparation of his PIF, the Board noted that he never sought an extension of time in which to file the document.
[14] As a result, the Board concluded that there had been no breach of natural justice in the conduct of the abandonment hearing, and that Mr. Labok's application to reopen his refugee claim should be dismissed.
Mr. Labok's Position
[15] Mr. Labok submits that he had always intended to proceed with his refugee application. However, because he does not speak English, he was reliant on his daughter and Ms. Katkova-Brown to assist him with his claim. According to Mr. Labok, the Board erred in concluding that just because he was well-educated and had been to North America before, he would have been able to read the information provided to him by the Board.
[16] The uncontradicted, sworn evidence before the Board was that Mr. Labok's failure to appear for his abandonment hearing was because of an error on the part of his immigration consultant. According to Mr. Labok, if the Board had concerns about the veracity of this explanation, it should have required that Ms. Katkova-Brown appear before the Board in order to answer any questions that the Board may have had.
[17] Mr. Labok submits that incompetent representation by counsel can amount to a breach of natural justice. Where, through no fault of an applicant, the effect of counsel's misconduct is to completely deny the applicant a hearing, a reviewable breach of fundamental justice will occur. In this regard, Mr. Labok relies on the decision of this Court in Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51.
The Respondent's Position
[18] The respondent submits that the Federal Court of Appeal has established that the incompetence of counsel is not a sufficient ground for setting aside a decision of the Immigration and Refugee Board. In support of this argument, counsel relies on the decisions of the Federal Court of Appealin Jagessar v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 6 (Q.L.) and Paterno v. Canada (Minister of Employment and Immigration), June 23, 1992 (unreported).
[19] Further, the decision to reopen a refugee claim is a discretionary matter entrusted to a specialized tribunal: Tio v. Canada (Minister of Citizenship and Immigration), (2000) 7 Imm. L.R. (3d) 152; [2000] F.C.J. No. 925 (Q.L.). It is up to an applicant to establish that sufficient reasons exist to justify the reopening of an abandoned claim.
[20] In this case, the Board reviewed the entire history of this proceeding, and came to the conclusion that there were insufficient reasons to warrant reopening the claim. The respondent submits that there is no basis for interfering with that decision.
Analysis
[21] I do not read the cases cited by the respondentto say that incompetence on the part of counsel can never result in there being a denial of natural justice in the context of a refugee proceeding. That said, it is clear that the Board did not accept that Mr. Labok's failure to appear for his abandonment hearing was properly attributable to incompetence on the part of Ms. Katkova-Brown.
[22] In the Board's view, it was simply not credible that both Ms. Katkova-Brown and Mr. Labok's daughter would make the same error with respect to the date for Mr. Labok's abandonment hearing. This explanation was even more problematic in light of the fact that Ms. Katkova-Brown was an experienced immigration consultant, who would presumably have been familiar with the Board's form letters.
[23] As counsel for Mr. Labok pointed out, sworn testimony is presumed to be true. (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302). However, in this case, the Board found that on the face of the information before it, there was good reason to conclude otherwise. I see no basis for interfering with that conclusion. In addition to the points mentioned by the Board, it is also worth observing that the operative portion of the notice states:
As a result, the date of April 25, 2003 on the Notice to Appear given to you by the officer of
Citizenship and Immigration is CANCELLED.
Given that the word "cancelled' appears in upper case letters, immediately below the April date, it is difficult to see how one person could take note of the date, without seeing the word 'cancelled' at the same time. The idea that two people could make the same mistake is all the more difficult to accept, especially when one of the two was familiar with the Immigration and Refugee Boardprocess. As a result, I am not persuaded that the Board erred when it concluded that Mr. Labok had failed to provide sufficient reasons for his failure to appear for his abandonment hearing.
[24] The refusal of the Board to accept Ms. Katkova-Brown's explanation for Mr. Labok's failure to appear at his abandonment hearing was, however, only one reason why the Board refused to reopen his refugee claim. From its review of the history of this proceeding, the Board was also satisfied that Mr. Labok had demonstrated a lack of diligence in pursuing his refugee claim.
[25] While Mr. Labok may have preferred to have been represented by counsel, he was apparently represented by Ms. Katkova-Brown from the time that his claim was referred to the Refugee Protection Division. Nevertheless, he failed to file his PIF on time.
[26] When he was unable to get his PIF in to the Board within the stipulated 28 day period, Mr. Labok did not ask for an extension of time. There is no evidence before me as to why this was not done.
[27] Mr. Labok then failed to appear at his abandonment hearing.
[28] Even when it was discovered that Mr. Labok's claim had been found to have been abandoned, he failed to proceed with reasonable dispatch. Ms. Katkova-Brown deposes that she became aware of her error in relation to the date of Mr. Labok's abandonment hearing at some point during the week of April 14, 2003. No steps were take to have Mr. Labok's claim reopened until May 13, approximately one month later. When counsel was pressed as to why this was the case, no explanation was forthcoming, other than the statement that perhaps the application to re-open should have been brought earlier.
[29] It may be that Mr. Labok has not been well served throughout this process by those retained to assist him. Nevertheless, despite the assertions to the contrary contained in Mr. Labok's affidavit, the history of this claim does not demonstrate a continuing desire to proceed with this claim. I am also not persuaded that there has been any breach of natural justice here. As a result, I cannot find any error in the decision of the Board not to reopen Mr. Labok's refugee claim. Accordingly, this application is dismissed.
Certification
[30] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed
2. No serious questionof general importance is certified.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4677-03
STYLE OF CAUSE:
MARK LABOK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 15, 2004
REASONS FOR ORDER
AND ORDER : Madam Justice Mactavish
DATED: July 20, 2004
APPEARANCES:
Mr. Hart A. Kaminker FOR APPLICANT
Ms. Anshumala Juyal FOR RESPONDENT
SOLICITORS OF RECORD:
Hart A. Kaminker
Barrister and Solicitor
Kranc & Associates
425 University Avenue
Suite 500
Toronto, Ontario M5G 1T6 FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario M5X 1K6 FOR RESPONDENT