Date: 20040722
Docket: IMM-5071-03
Citation: 2004 FC 1024
Ottawa, Ontario, this 22nd day of July, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
JOLANTA ZYLINSKA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] On June 19, 2003, a member of the Immigration and Refugee Board declared Ms. Jolanta Zylinska's refugee claim to have been abandoned. Ms. Zylinska had failed to file her Personal Information Form (PIF) on time. She argues that the Board's decision was unreasonable because she had made every effort to prosecute her claim expeditiously. She could not have filed her PIF any sooner, she says, because she was waiting to find out if she was eligible for legal aid.
[2] I cannot find any basis for overturning the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issue
[3] Was the Board's decision to declare Ms. Zylinska's claim abandoned unreasonable?
II. Analysis
[4] I can overturn the Board's decision only if I find that it was unreasonable, in the sense that it was unjustified based on the evidence.
[5] Before declaring a claim to have been abandoned, the Board must consider the claimant's explanation and the surrounding circumstances, including whether the person is ready to proceed with his or her claim (Refugee Protection Division Rules, SOR/2002-228, s. 58(3), set out in the attached Annex.)
[6] Here, the Board did consider all the facts. Ms. Zylinska received the document package containing her PIF on April 11, 2003. She was obliged to file her PIF within 28 days (Refugee Protection Division Rules, Rule 6(1)). During that time frame, she sought social assistance and legal aid. On May 7, 2003, two days before her PIF was due, Ms. Zylinska requested an extension of four or five weeks because she had not yet received an answer from legal aid. The Board denied her request. On May 22, 2003, Ms. Zylinksa received approval from legal aid; she filed her PIF the next day.
[7] In the interim, however, the Board advised her that a hearing would be held on June 19, 2003, to determine whether her claim should be declared abandoned. Ms. Zylinska attended the hearing with her counsel. The Board asked whether any steps had been taken to complete the PIF during the 28-day period, other than applying for legal aid. The answer was no. On that basis, the Board found that Ms. Zylinska had failed to give a valid reason why her claim should not be declared abandoned. It stated that waiting for legal aid was not, in itself, a justification for failing to meet the deadline. The Board's approach is supported by case law in this Court: Kiani v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1692 (T.D.) (QL).
[8] I cannot conclude that the Board's approach was unreasonable in light of the evidence and circumstances before it. Ms. Zylinska could have supplied her PIF in a timely fashion and, if necessary, counsel could amended it subsequently.
[9] Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed.
2. No question of general importance is stated.
"James W. O'Reilly"
F.C.J.
ANNEX
| Refugee Protection Division Rules, SOR/2002-228
Providing Personal Information Form to Division 6. (1) The claimant must provide to the Division the original and two copies of the completed Personal Information Form by one of the means, other than fax or electronic mail, described in rule 33. The completed forms must be received by the Division no later than 28 days after the claimant received the form.
Abandonment without hearing the claimant
[...] 58. (3) 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.
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Règles de la Section de la protection des réfugiés, DORS/2002-228
Transmission du formulaire à la Section 6. (1) Le demandeur d'asile transmet l'original et deux copies du formulaire sur les renseignements personnels rempli à la Section par un des moyens prévus à la règle 33, à l'exception du courrier électronique et du télécopieur. Les documents doivent être reçus par la Section au plus tard vingt-huit jours suivant la date à laquelle le demandeur d'asile reçoit le formulaire. Désistement sans audition du demandeur d'asile
Éléments à considérer 58. (3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5071-03
STYLE OF CAUSE: ZYLINSKA v. MCI
PLACE OF HEARING: TORONTO, Ontario
DATE OF HEARING: Monday, July 19, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY : THE HONOURABLE MR. JUSTICE O'REILLY
DATED: Thursday, July 22, 2004
APPEARANCES BY:
Mr. Ernst Ashurov FOR THE APPLICANT
Mr. Gordon Lee FOR THE RESPONDENT
SOLICITORS OF RECORD:
ERNST ASHUROV
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General FOR THE RESPONDENT