Date: 20040318
Docket: IMM-1015-03
Citation: 2004 FC 393
BETWEEN:
HUSSEIN JAWAD JABER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated January 31, 2003, that the applicant had abandoned his claim.
[2] Hussein Jawad Jaber (the applicant) is a citizen of Lebanon. On January 30, 2001, he arrived in Canada, where he claimed refugee protection, alleging a fear of persecution because of his political opinion.
[3] The applicant mandated Élie Chahwan, a lawyer, to pursue his refugee claim in Canada. On March 16, 2001, the applicant submitted his Personal Information Form to the IRB.
[4] On August 1, 2001, the applicant says that he moved to Windsor, Ontario. He advised his attorney of the move by leaving him a message on his voice mail. While staying in Windsor, he left several other messages for his counsel. The applicant, who did not have a telephone, states that he told his counsel to send all information pertaining to the file to one of his friends living in Montréal.
[5] On November 22, 2002, the IRB sent a notice of hearing to the applicant's counsel, indicating that the claim would be heard on January 23, 2003. The copy sent to the applicant was returned to the sender on November 27, 2002. On January 18, 2003, the applicant arrived in Montréal to attend to the preparation of his claim, but it was only on January 22, 2003, that he finally met with his counsel.
[6] The IRB found that the applicant appeared totally disinterested in his claim and declared that his claim had been abandoned. The IRB wrote the following in its decision:
On 30th day of January, 2001, your claim was referred to the Refugee Protection Division (RPD).
By Notice dated 22nd day of November, 2002, the RPD advised you and your counsel that a hearing would take place on 23rd day of January, 2003.
You and your counsel appeared at that hearing but did not show reason why the RPD should not declare your claim to be abandoned.
ACCORDINGLY, THE REFUGEE PROTECTION DIVISION DECLARES YOUR CLAIM TO HAVE BEEN ABANDONED.
[7] According to the hearing transcripts, at page 81 of the tribunal record, the IRB gives the following reasons in support of its decision:
[TRANSLATION]
Sir, I find your excuses unacceptable. I do not find you credible at all. Under section 168 of the Act, I will declare the . . . I will determine that the proceeding has been abandoned, because you did not respect the standards of the Act, you did . . . you did not notify the Board of the changes concerning your address and your situation, you did not provide the documents that we needed and that we asked you to provide in the context of your claim and the explanations that you give, I find they are absolutely lacking in credibility and, consequently, you are not relieved of your obligations with respect to your claim.
Accordingly, I find that the proceeding has been abandoned.
[8] The IRB determined that the applicant appeared totally disinterested in his claim and declared that his claim had been abandoned. According to the applicant, the IRB did not take into account relevant factors applicable to his claim, or the evidence filed, and the IRB's conduct had the appearance of bias.
[9] The standard of review applicable to a decision by the IRB, whereby it finds that the applicant has abandoned his claim, is that of reasonableness simpliciter, because it is a discretionary decision (Ahamad v. Canada (M.C.I.), [2000] 3 F.C. 109). Because of the serious consequences which could result from such a decision, it must be subject to serious scrutiny (Cirahan v. Canada (M.C.I.), [1997] F.C.J. No. 1469 (F.C.T.D.) (QL)).
[10] The applicant submits that the notice, dated November 22, 2002, is insufficient, vague, and breaches the audi alteram partem rule of procedural fairness. In this case, the IRB did not send a notice to the applicant indicating that the issue to be addressed at the hearing would be that of the abandonment of his claim. Nevertheless, a reading of subsection 58(2) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules), indicates that the IRB is not necessarily bound to advise the applicant that the hearing will bear on the abandonment when, as in this case, the IRB, believing that it would be fair to do so, gives the applicant present at the hearing the immediate opportunity to explain why the claim should not be declared abandoned. It is also appropriate to note that neither the applicant nor his counsel objected at that point to the hearing being on the issue of abandonment.
[11] The applicant also submits that the IRB's decision was unreasonable. Section 168 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides that the IRB may determine that a proceeding before it has been abandoned if it is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the IRB or to communicate with the IRB on being requested to do so. According to subsection 4(3) of the Rules, if the claimant's contact information changes, he must without delay provide the changes in writing to the Division and the Minister. In this case, the applicant submitted two notices of change of address. However, there was no notice sent to the IRB or to the Minister concerning the applicant's move to Windsor, Ontario. It was therefore not unreasonable for the IRB to take this significant shortcoming into consideration.
[12] The applicant submits, moreover, that the IRB did not take relevant factors into consideration in its assessment of the claim. Subsection 58(3) of the Rules provides that the Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings. In this case, the IRB did not accept the explanations of the applicant, whom it found to be completely disinterested in his claim. Need I point out that it falls on the IRB to assess the facts and that this Court cannot substitute itself for the tribunal in order to reassess the applicant's explanations and his interest in his claim?
[13] Finally, the applicant alleges that the IRB was hostile towards him, which gave rise to an appearance of bias. On this point, it was the applicant's responsibility to show that the panel's attitude was such that an informed person, viewing the matter realistically and practically - and having thought the matter through - would have an objective apprehension about its impartiality. The test was clearly defined by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. The Federal Court of Appeal recently held the following in relation to an allegation of bias, in Arthur v. Canada (Attorney General), 2001 FCA 223, [2001] F.C.J. No. 1091 (C.A.) (QL):
[8] . . . An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard.
[14] In this case, the IRB gave the applicant the opportunity to answer the questions asked and to give explanations about the abandonment of his claim. The applicant did not contribute any material evidence in support of his allegation of bias. The applicant simply says that the member was hostile towards him. Further, as the IRB respected its duty to act fairly and as the applicant did not raise the issue of bias before it (Zündel v. Canadian Human Rights Commission et al. (2000), 264 N.R. 174 (F.C.A.)), I am of the opinion that his argument has no merit.
[15] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
March 18, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1015-03
STYLE OF CAUSE: HUSSEIN JAWAD JABER v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 12, 2004
REASONS FOR ORDER BY: Pinard J.
DATE OF REASONS: March 18, 2004
APPEARANCES:
Patrick-Claude Caron FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Patrick-Claude Caron FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario