Calgary, Alberta, June 7, 2006
PRESENT: The Honourable Madam Justice Gauthier
BETWEEN:
Applicant
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Shu Xu seeks judicial review of the decision of the Refugee Protection Division ("RPD") declaring that he abandoned his refugee claim.
[2] The applicant arrived in Canada in November, 2002 and requested protection as a Convention refugee on account of his membership in Falun Gong. In June 2004, his claim was rejected by the RPD because, among other things, he lacked credibility. On February 8, 2005, this Court set aside this decision and ordered that the matter be reconsidered.
[3] A de novo hearing was scheduled to take place on July 26, 2005. A notice to appear was sent on April 11, to the applicant's last known address. This was the address of a friend with whom he had stayed in the past. However in September or October, 2004 Mr. Shu Xu had moved to a new address. The RPD was not informed of his move. The applicant continued to collect his mail from his friend's house and spoke to him every week.
[4] The applicant's lawyer was present at the de novo hearing but the applicant was not.
[5] Subsequently, the lawyer couriered a letter to his client's new address, informing him that a show cause hearing had been scheduled to determine why the RPD should not declare his claim abandoned. The applicant and his lawyer met on August 1, to discuss what had happened.
[6] On August 2, 2005 the lawyer wrote to the RPD explaining the situation as follows:
- the applicant had not received the notice to appear for his refugee hearing. He had not changed his address because his friend always provided him with his mail.
- although the applicant discussed the hearing date with his lawyer during a June interview, he forgot the date.
- his lawyer's file incorrectly indicated that the applicant's telephone number started with 207 while it actually started with 607. Thus, despite several attempts, the applicant could not be reached in the days prior to the hearing.
- if necessary, the applicant could obtain evidence from his employer confirming that, on July 26, he was at the supermarket where he works as a supervisor.
[7] The applicant's counsel also reiterated that his client was adamant that he had no intention to abandon his claim. He stated that Mr. Shu Xu had been very co-operative with him in all matters necessary to prepare his de novo hearing, including the acquisition of new evidence and the preparation for the conduct of the hearing.
[8] On the basis of those representations, the applicant's counsel sought a favourable decision by the RPD, without a show cause hearing, so that a new date for the de novo hearing could be scheduled as soon as possible. The RPD did not grant his request.
[9] At the show cause hearing, the applicant had the opportunity to testify extensively about why he did not attend on July 26, 2005. The RPD handed down its decision orally at the hearing.
[10] The RPD found that the claimant gave various contradictory explanations for his failure to appear and that, after considering the entire evidence on file, many of those explanations seemed unreasonable.
[11] With respect to the applicant's failure to advise the RPD of his new address, the RPD noted the applicant's explanation that he did not know that he had a duty to inform the RPD, as well as his testimony with respect to the arrangements made with his friend regarding his mail and the fact that, according to this friend, no mail was received from the RPD. It then noted that the notice to appear was never returned to the RPD's office.
[12] It also referred to the fact that the applicant had given several distinct explanations as to why he did not know the date of his de novo hearing. Apart from not receiving the notice to appear from the RPD, Mr. Shu Xu claimed that, when he met with his lawyer in June to prepare for the hearing, he was only told that there was an important date in July. No precise date was given to him. The applicant alleged that he made several efforts to contact his counsel by phone and e-mail to inquire about the status of his file. He testified, however, that after the June interview he was very busy at work and had no time to communicate with his lawyer. He apparently never thought of contacting the RPD to verify the date of his hearing.
[13] The RPD found that this evidence was simply not believable, particularly with respect to Mr. Shu Xu's claim that he was unable to find out from his counsel exactly when in July his hearing was to take place. In reaching that conclusion, the RPD considered that in the past the applicant had experienced no difficulties making appointments with his counsel's receptionist.
[14] Moreover, the RPD found that the "I forgot" answer was not reasonable under the circumstances. It then considered the applicant's behaviour in the context of the other evidence on file, including the fact that he had duly prepared for his de novo hearing. It concluded that the applicant had failed to show a serious intent to pursue his refugee protection claim diligently.
[15] Mr. Shu Xu, with the help of new counsel, asked the RPD to reopen his file pursuant to Rule 55(1) of the Refugee Protection Division Rules, S.O.R./2002-228 (the Rules) on the basis of the same arguments he raises in this application. His request was denied. Leave to commence an application for judicial review of this decision was refused on February 3, 2006 court file no.(IMM-6616-05).
ISSUES
[16] In his memorandum, the applicant argues that:
i. the questions put to him by the RPD at his show cause hearing raise a reasonable apprehension of bias;
ii. he lost the right to have his refugee claim heard on the merits because of the negligence of his previous counsel and this, in his view, amounts to a breach of procedural fairness.
[17] At the hearing, he added that the RPD failed to consider the whole file and all his efforts, including the successful judicial review. He claims that the decision was unreasonable.
[18] As a preliminary issue, the respondent submits that the Court should not deal with the first two issues because they have already been assessed and decided by the Court when it dismissed Mr. Shu Xu's application, in file no. IMM-6616-05, for leave and judicial review of the RPD's refusal to reopen his case.
[19] With respect to the merits of the decision, the respondent said that the ruling of the RPD contained no reviewable error and that this Court should not intervene.
ANALYSIS
[20] There is no need to apply the pragmatic and functional approach to determine the standard of review with respect to the first issue raised by the applicant. If there is a reasonable apprehension of bias, the Court must intervene and set aside the decision.
[21] In the same manner, if it is established that a breach of procedural fairness occurred during the show cause hearing, the Court must intervene.
[22] With respect to the merits of the decision made under s. 168 of the Immigration and Refugee Protection Act¸ S.C. 2001, c. 27 (the "Act") and paragraph 58 of the Rules (these provisions are reproduced in Annex A), I adopt the reasoning of Justice Francois Lemieux in Ahamad v. Canada, [2000] 3 F.C. 109. Like my colleague Justice Michael L. Phelan, in Anjun v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. no. 617, [2004] F.C. 496 at para. 17-18, I find that the reasoning in Ahamad remains valid despite the changes in the legislation. The RPD had to review the facts and apply the criteria set out in the relevant provisions mentioned above. This involved a mixed question of facts and law to which the standard of the reasonable decision applies.
[23] I will deal first with the preliminary argument raised by the respondent.
[24] In Lin v. Canada(Minister of Employment and Immigration), [2005] F.C.J. No. 634, 2005 FC 512, Justice Carolyn Layden-Stevenson had to deal with a similar argument but the situation before her was the opposite. She was reviewing the decision of the RPD refusing to reopen the applicant's file, while the Court had earlier refused to grant leave on an application with respect to the decision declaring the refugee claim abandoned.
[25] She found that there were differences between the powers granted to the RPD pursuant to paragraphs 55 and 58 of the Rules.
[26] Pursuant to paragraph 55 (see Annex A), the RPD could only reopen a file if it found that a breach of natural justice or procedural fairness had occurred.
[27] Pursuant to paragraph 58(3), the RPD was obliged to consider certain factors to determine whether the claim was abandoned. If it had improperly considered these factors, the remedy was to seek judicial review, as the applicant in Lin had done, and not to seek reconsideration under section 55 of the Rules. In that context, Justice Layden-Stevenson rejected the argument of the applicant suggesting that the powers of the RPD should be constructed more widely pursuant to section 55. She said:
¶ 16 The approach suggested by Mr. Lin, in my view, constitutes a collateral attack on the abandonment decision and the decision of the court dismissing the application for leave in relation to it. Moreover, consideration of the abandonment decision and the basis upon which it was made is, by virtue of the court's order dismissing leave, res judicata. If Mr. Lin is correct that a claim can be reopened on grounds other than breach of natural justice (and I make no such determination because I need not do so on the facts before me) then I think it could be only on the basis of new evidence as that term is used and understood in law.
[28] Here, the RPD's decision not to reopen Mr. Shu Xu's file was made after a review of the evidence that the applicant is now asking the Court to consider. The affidavit of the applicant filed in support of the application for leave in IMM-6616-05 was exactly the same as the one he filed in support of the application before me.
[29] The arguments described above in paragraph 16 were the same as the ones he made in his memorandum in court file no. IMM-6616-05. These arguments and this evidence were considered by the Court when it dismissed the application.
[30] In the circumstances, the Court must conclude that insofar as those alleged breaches of procedural fairness are concerned, there is res judicata.
[31] However, neither the RPD, nor the Court on judicial review of its decision not to reopen the file, had the power to assess whether the decision of the RPD under paragraph 58 was otherwise valid. They did not determine whether the RPD had properly considered the factors set out in the Rules, nor whether its decision was reasonable. Thus, this must be done in the context of the present application.
[32] In that respect, the Court can only consider the evidence that was before the RPD at the show cause hearing (reFarhadi v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 381 at para. 20; [1998] F.C.J. No. 381 at para. 20; Moktari v. Canada(Minister of Citizenship and Immigration, [2001] F.C.J. No. 135 at para. 34; F.C. v. Canada(Minister of Citizenship and Immigration), 2005 FC 1242; [2005] F.C.J. No. 1504 at para. 35). Also, in light of the applicable standard of review, the Court cannot simply substitute its own appreciation of the evidence to that of the RPD. Rather, it must determine if the decision is supported by any reasons that can stand up to a "somewhat probing examination". The Court will not be able to intervene if the decision is supported by a tenable explanation, even if this explanation is not one that the Court finds compelling.
[33] Despite the excellent arguments presented by the applicant's counsel, the Court is satisfied that the RPD considered all the factors set out in paragraph 58 of the Rules, including the fact that the applicant had properly taken steps to prepare for his de novo hearing. There is no doubt that the RPD was well aware and considered that the applicant had successfully challenged the first decision on his refugee claim. A careful reading of the decision indicates that the RPD did not make its decision lightly. The determinant issue was the applicant's own behaviour and his own lack of credibility, rather than the alleged negligence or error of his former counsel.
[34] As mentioned during the hearing, this decision will not leave Mr. Shu Xu without recourse. He will be entitled to request a pre-removal risk assessment.
[35] The parties have not proposed any question for certification and the Court finds that this case turns on its own facts.
ORDER
THE COURT ORDERS that:
The application for judicial review is dismissed.
"Johanne Gauthier"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6567-05
STYLE OF CAUSE: Shu Xu v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Calgary, Alberta
APPEARANCES:
| Mr. Nico G. J. Breed
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FOR THE APPLICANT |
| Mr. Rick Garvin
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SOLICITORS OF RECORD:
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Spier Harben Calgary, Alberta |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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