Date: 19991201
Docket: IMM-6083-98
BETWEEN:
CHANDRAKUMAR THURAIRAJAH
CHANTHIRIKA CHANDRAKUMAR
PRAYANGAA CHANDRAKUMAR (by her Litigation Guardian)
PRESSENNA CHANDRAKUMAR (by his Litigation Guardian)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This application was heard together with the application between the same parties in IMM-2128-99.
[2] The applicants seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Division, dated November 10, 1998 in which the Tribunal declared their refugee claims to have been abandoned. The applicants are citizens of Sri Lanka. Another panel of the Convention Refugee Determination Division had ruled in 1992 that the applicants were not convention refugees. An application for judicial review was made to the Federal Court of Canada (Trial Division) and the Court set aside the Tribunal"s decision and submitted the matter to a different panel of the Convention Refugee Determination Division which is the Board that made the decision dated November 10, 1998.
[3] The hearing of the applicants" claims was scheduled to be heard on September 14, 1998.
[4] On that day when the applicants were getting ready to go to the hearing the applicant Chanthirika Chandrakumar became dizzy, fell down and got sick. The applicant, Thurairajah Chandrakumar telephoned his lawyer"s office but no one answered and he left a message on the answering machine. Mr. Chandrakumar did not telephone the Tribunal. It would appear from the materials that Mr. Chandrakumar"s surname and first name became reversed in the style of cause.
[5] The applicants" lawyer did not attend the hearing as he was involved in a motor vehicle accident and as such could not inform the Tribunal. The lawyer did call the case clerk at the Tribunal when he returned to his office. This was followed up by a letter to the Tribunal on September 15, 1998.
[6] The letter dated September 15, 1998 somehow got lost between the sender"s office and its rightful place in the Tribunal"s filing system. The applicants" lawyer forwarded another copy of the letter to the Tribunal.
[7] On the morning of September 14, 1998, the Board waited until 9:05 a.m. for the applicants to appear and then decided to commence abandonment proceedings.
[8] Mr. Chandrakumar testified that he called his lawyer"s office at about 9:00 a.m.. He also testified that he was not sure of the exact time because he was upset about Mrs. Chandrakumar"s illness.
[9] Mr. Chandrakumar also testified that he was unable to attend the hearing at 8:15 a.m. because of Mrs. Chandrakumar"s illness he could not leave the children alone at home with her.
[10] A medical certificate was provided in relation to Mrs. Chandrakumar"s illness but the Board was not satisfied with the explanation given on the medical certificate.
[11] The Board stated that in the absence of the applicants" counsel the Refugee Board might have granted an adjournment if the applicants had been present.
[12] The Refugee Board issued a Notice to the applicants dated October 27, 1998 informing them that a hearing into their failure to attend the hearing on September 14, 1998 would be held on November 2, 1998 at 8:15 a.m.. The Notice also informed them that if they failed to appear the Refugee Division could declare their claims to be abandoned.
[13] The applicants were present with their counsel on November 2, 1998 and were prepared to proceed with the hearing.
[14] The Board held:
| "So, accordingly, the panel is going to recommend to the registrar that the claims to Convention refugee status of the Chandrakumar family be declared abandoned". |
[15] On November 10, 1998 a Notice of Abandonment was issued. This Notice incorrectly stated that the applicants did not attend the November 2, 1998 hearing when they were in fact present.
[16] On April 12, 1999 the Registrar on behalf of the Board issued a corrected Notice of Abandonment Decision which was amended to show that the applicants were in fact present before the Board on November 2, 1998.
ISSUE
[17] The issue to be determined in this application is whether the Board should have declared that the applicants" claims were abandoned.
ANALYSIS AND DECISION
[18] There is no doubt that the applicants were faced with double problems on the morning of September 14, 1998. Firstly, Mrs. Chandrakumar became ill, fell and injured her ankle as she was preparing to go to the hearing. Secondly, their lawyer was involved in a motor vehicle accident and was unable to notify the Board until 10:30 a.m. which was well past the 8:15 a.m. hearing time.
[19] In this case there was not any finding that the witness was not credible. Hence we are left with Mr. Chandrakumar"s testimony that Mrs. Chandrakumar became ill as they were preparing to go to the scheduled hearing and with the statement of their attorney that he was involved in a motor vehicle accident and was unable to contact the office of the Board until 10:30 a.m.
[20] There is no dispute as to the facts in this application.
[21] It is my opinion that it was unreasonable not to allow the applicants to present their case before the Board. Not only was Mrs. Chandrakumar ill on the morning of the hearing but the applicants" lawyer was unavailable because he had been involved in a motor vehicle accident. The statement by the Board that "Boards don"t accept these types of medical certificates that simply say that someone is under the care of a professional person" is an unreasonable statement when the evidence from the applicants is that Mrs. Chandrakumar was ill on the morning of the interview and their lawyer could not be contacted because he had been involved in a motor vehicle accident. The Board must look at all of the evidence presented to it. If applicants are represented by counsel surely the first telephone call will be to their counsel. This is precisely what the applicants did in this case.
[22] I find that the decision of the Board to decide that the claims of the applicants to convention refugee status be declared abandoned is an unreasonable decision. Any applicant who calls his lawyer when due to his wife"s illness is unable to attend a hearing is acting in a reasonable and normal manner. It is beyond the control of the applicants if their lawyer is involved in a motor vehicle accident on his way to the hearing.
[23] The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 DLR (4th) 193 concluded that the standard of review to be applied to the decision in that case was reasonableness simpliciter. It is my opinion that the same standard of review should be applied in this case.
[24] I find that the Board"s decision to declare the application abandoned was unreasonable because it stated at page 9 of the decision as follows:
| Mr. and Mrs. Chandrakumar, the panel has conferred on what we"ve heard here this morning. I have to tell you that we"re not persuaded that this medical certificate says that you or your wife were unable to come to the refugee hearing. Panels don"t accept these types of medical certificates that simply say that someone is under the care of a professional person. |
| Your burden this morning was to persuade the panel why you could not have been here on September the 14th, and this medical certificate doesn"t do that. |
The Board also had, as evidence, the sworn testimony of Mr. Chandrakumar to the effect that Mrs. Chandrakumar had felt dizzy, fallen and injured her ankle on the morning of the hearing. He therefore stated he could not leave her alone with the children. As stated earlier the Board did not rule that this evidence was not credible. The Board was also aware that the applicant testified that he tried to inform his lawyer but as it turns out his lawyer had been involved in a motor vehicle accident and he was only able to contact the Board by 10:30 a.m. All of this evidence shows that the Board"s decision was unreasonable. The Board itself stated that had the applicants come to the hearing on September 14, 1998 without their lawyer the Board may have granted them an adjournment.
[25] In my view in the special circumstances of this case the Board"s decision to declare the claims abandoned was unreasonable and therefore the applicants" application for judicial review must be allowed and the applicants" claims should be heard by a different panel of the Convention Refugee Determination Division.
[26] Neither party had a question to submit for certification.
[27] There shall be no order as to costs.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
December 1, 1999