Date: 20040916
Docket: IMM-6832-03
Citation: 2004 FC 1266
Toronto, Ontario, September 16th, 2004
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
KELLY ADEX
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Kelly Adex (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board Refugee Protection Division (the "Board") dated August 12, 2003. In that decision, the Board dismissed the Applicant's application to reopen and reinstate his claim for refugee protection status.
[2] The Applicant, a citizen of Nigeria, arrived in Canada and claimed refugee protection status on that day. He stated in his Personal Information Form ("PIF") that he had fled his country due to political persecution.
[3] The Applicant engaged a lawyer to represent him in pursuing his claim for Convention refugee status. However, neither the applicant nor his lawyer responded to a "Confirmation of Readiness" within the required twenty day period in May-June 2003. By Notice dated June 9, 2003, the Applicant was advised that an Abandonment Hearing would be held on June 27, 2003. The Notice advised that at the hearing the Applicant would be provided an opportunity to explain why his claim should not be declared abandoned.
[4] The Abandonment Hearing took place on June 27, 2003. Neither the Applicant nor his counsel appeared. By Notice of Decision dated July 10, 2003, the Board declared the Applicant's claim to have been abandoned.
[5] By a written application dated July 28, 2003, supported by his affidavit, the Applicant requested the Board to reopen and reinstate his claim to refugee protection. The application was handled by the Board on the basis of the written representations filed on behalf of the Applicant and without an oral hearing.
[6] In his affidavit, the Applicant offered explanations for his failure to submit the "Confirmation of Readiness" within the time limited. He said that he had not received the Notice sent out by the Board because he had changed his address and although he had notified Citizenship and Immigration Canada ("CIC") of the change, he had not given notice to the Board. The Applicant said that he did not realize that there was a difference between giving notice to the CIC as opposed to the Board.
[7] Further, the Applicant said that he had notified his lawyer of his change of address but he believed that the lawyer did not receive his letter because the lawyer had relocated his office. He said that the lawyer informed him that a letter about the relocation of his office had been sent to the Applicant's former address.
[8] The Board reviewed the submissions of the Applicant and dismissed the application to reopen the claim. Although no formal reasons were provided for its decision, the Board prepared a "Note to File" which is found at pages 5 and 6 of the Tribunal Record. The concluding paragraph provides as follows:
There has been no denial of natural justice in declaring this claim abandoned. The claimant has legal counsel. He has been instructed of his duty to inform the IRB immediately of any change in Address. He failed to do so. In addition, he states that his counsel did not receive the change of address sent to him because of counsel's own change of address. This argument is not relevant to the case at hand.
[9] The applicable test upon a request to reopen a claim for refugee protection status is set out in section 55(4) of the Refugee Protection Division Rules, SOR/2002-228 as follows:
| 55 (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. |
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55 (4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle.
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[10] It is clear, in my opinion, that the Board here identified the correct test. Further, the Board properly applied the test. There is nothing in the record to show that the presiding Board at the Abandonment Hearing committed any breach of procedural fairness or natural justice. A differently constituted Board presided over the request to reopen the Applicant's claim and that Board committed no reviewable error.
[11] There is no basis for judicial intervention and this application for judicial review is dismissed. There is no question for certification arising.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6832-03
STYLE OF CAUSE: Kelly Adex
Applicant
and
The Minister of Citizenship and Immigration
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 14, 2004
REASONS FOR ORDER
AND ORDER: Heneghan J.
DATED: September 16, 2004
APPEARANCES:
Mr. Kingsley I. Jesuorobo FOR APPLICANT
Ms. Ann Margaret Oberst FOR RESPONDENT
SOLICITORS OF RECORD:
Kingsley I. Jesuorobo FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT
Date: 20040916
Docket: IMM-6832-03
BETWEEN:
KELLY ADEX
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER