Ottawa, Ontario, March 6, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] At issue in this judicial review is whether a denial of a change of venue or failure to consider alternative means of being present at a hearing is a breach of natural justice.
[2] The Applicant (Koneswaran Sundaram), for financial reasons, moved from Toronto to Vancouver. He had initiated his refugee claim in Toronto and had been given time to complete his Personal Information Form (PIF) which became due October 20, 2003.
[3] On October 7, 2003, the Refugee Protection Division (RPD) sent him notice that he must attend an abandonment hearing scheduled for October 31, 2003 in Toronto to defend the non-abandonment of his refugee claim.
[4] Commencing October 6, 2003, the Applicant began a series of requests to change the venue of any hearing related to his status from Toronto to Vancouver. On October 16, 2003, his counsel made a request that the file be transferred to Vancouver on the grounds that the cost attached to attending hearings in Toronto, coupled with the Applicant's impecuniousness, rendered it impossible for his client to afford to travel. That request was repeated on substantially the same basis on October 27 and October 30, 2003.
[5] During that same period, the Applicant requested an extension of his PIF filing date, as he was awaiting approval of his Legal Aid application. That extension request was denied three days after the PIF filing date and the PIF was filed October 29, 2003 - two days before the scheduled abandonment hearing.
[6] On October 31, 2003, the notation of the decision on the change of venue contained the cryptic comment "Change of location application is denied". The Hearing Disposition Record also noted that the PIF extension had been previously denied, that there was no reasonable explanation for the late filing of the PIF, that the Applicant failed to appear at the abandonment hearing and that therefore, for those reasons, the claim was to be considered abandoned.
[7] For reasons which are unclear, there was no challenge to the abandonment decision. The Applicant simply applied to have his case re-opened. That re-opening was denied; judicial review was sought and obtained on consent. The end result is that the matter was reconsidered by the RPD. It is this second decision to refuse to re-open which is the subject matter of this application for judicial review.
[8] The RPD's decision to refuse to re-open was based on the following conclusions:
1. The Applicant was represented by counsel, albeit inexperienced counsel. This inexperience, however, was offset by the fact that the problems experienced were not complex - the late filing of his PIF and the failure to show up at his abandonment hearing.
2. The Applicant failed to submit his PIF within the prescribed time period. The communications between the Applicant and his counsel and the RPD with respect to the former's request for a change of venue do not serve to explain the late filing of the PIF.
3. The Applicant and his counsel failed to attend the Applicant's abandonment hearing, wherein the Applicant would have had the opportunity to defend against the abandonment of his claim by explaining the lateness of his PIF. At pages 4-5 of her judgment, the Board member concludes, "[i]n this regard, both counsel and the claimant, despite their last minute requests for change of venue without providing any explanation for the late filing of the PIF, failed to appear at the PABA/Show cause hearing even though no communication regarding the decision from the Division was issued".
4. Adequate notice was given to the Applicant and his counsel about the hearing. Moreover, both the rules and the guidelines state that if one has requested a change of venue but has not heard anything back from the Division, then one is under an obligation to attend the date set for one's hearing.
I. Analysis
[9] The Court is cognizant that this case is based more narrowly on the grounds in Rule 55 of the Refugee Protection Division Rules than on the merits of the abandonment decision. However, it is difficult to understand how the RPD could have possibly reached a conclusion that the Applicant had abandoned his refugee application in the face of evidence of his numerous pleas for an extension of his PIF deadline in order to secure legal counsel and his repeated requests to transfer his file to Vancouver so he could attend any hearing ordered.
[10] However, this judicial review must be based on the remedy sought by the Applicant - an application to re-open. The pertinent rules restrict the scope of consideration to whether there has been "a failure to observe a principle of natural justice". Where there has been such a failure, the RPD has no discretion, the matter must be re-opened. The pertinent rules are:
| 55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned. ... (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. |
55. (1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement. ... (4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle. |
[11] The Applicant argues that, where there is an application for a change of venue, the RPD is under a positive duty to inform applicants that they may be heard by video or other types of telecommunications conference.
[12] The Court is not prepared to read into the immigration scheme an obligation on officials to give advice on practice and procedures. The situation of giving advice is markedly different from those Court decisions which have held that officials must provide prospective applicants with the necessary forms. People are entitled to government forms; they are not entitled to receive free legal advice from RPD officials. No statutory provision has been advanced as a basis for the Applicant's argument.
[13] However, when the IRB receives a request for a change of venue because the person cannot attend at the scheduled hearing location, it does have the obligation to consider all relevant matters including its own discretionary powers relevant to the request.
[14] S. 164 of the Immigration and Refugee Protection Act gives the IRB the power and discretion to conduct hearings in person or by means of live telecommunication.
| 164. Where a hearing is held by a Division, it may, in the Division's discretion, be conducted in the presence of, or by a means of live telecommunication with, the person who is the subject of the proceedings. |
164. Les audiences des sections peuvent être tenues en présence de la personne en cause ou en direct par l'intermédiaire d'un moyen de télécommunication. |
[15] Faced with repeated requests, which, in substance, sought a way to attend the RPD hearing other than in person in Toronto, there is no indication in the conclusionary reasons that the RPD ever turned its mind to the issue of alternative means and locations of the hearing. It is also evident that it never addressed the substance of the request and it focused its consideration almost exclusively on the issue of the late filing of the PIF.
[16] It is unnecessary for the Court to address the other grounds advanced by the Applicant. The RPD has no obligation to advise any applicant of the IRB's procedures or jurisdiction but, in these specific circumstances, it was a denial of natural justice for the IRB not to consider its own discretion and jurisdiction to conduct its hearing elsewhere than in Toronto or otherwise than by personal appearance.
[17] For these reasons, the application for judicial review is granted, and the decision not to re-open the dismissal of the refugee application by reason of abandonment is quashed. The matter is referred back to the IRB to be re-opened and to be dealt with by a differently constituted panel.
[18] There is no question for certification.
JUDGMENT
IT IS ORDERED THAT:
1. The application for judicial review is granted, and the decision not to re-open the dismissal of the refugee application by reason of abandonment is quashed. The matter is referred back to the Immigration and Refugee Board to be re-opened and to be dealt with by a differently constituted panel.
2. There is no question for certification.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1844-05
STYLE OF CAUSE: Koneswaran Sundaram
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 2, 2006
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
| Mr. Michael Crane
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| Ms. Deborah Drukarsh
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SOLICITORS OF RECORD:
| Mr. Michael Crane Barrister & Solicitor Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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