Date: 20050309
Docket: IMM-303-04
Citation: 2005 FC 341
BETWEEN:
ZITA SKANDROVSKI,
DIANA SKANDROVSKI
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an unusual case. Is it open to the Immigration and Refugee Board to reopen a claim it had declared abandoned on grounds of a failure to observe a principle of natural justice when an application for leave and for judicial review of the same decision on the same grounds is pending in this Court? I doubt it, but on the facts of this case need not decide.
[2] Zita Skandrovski and her daughter, Diana, claim need of Canada's protection because Israel cannot protect them from Diana's father, Zita's ex-husband. Their claims for refugee protection were declared abandoned because they did not file their Personal Information Forms (PIFs) in time. They were given a hearing to say why their claims should not be struck on the grounds of abandonment. By decision dated 18 July 2003, the Refugee Protection Division of the Immigration and Refugee Board declared their claims to have been abandoned.
[3] Their counsel did two things: on 11 August 2003 he filed an application for leave and for judicial review with this Court, the whole in accordance with subsection 72(1) of the Immigration and Refugee Protection Act. That application was assigned docket number IMM-6186-03. One of the bases of the application was that "the panel failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe".
[4] While that application was pending, on 10 October 2003 the Skandrovskis moved the Refugee Protection Division of the Immigration and Refugee Board to reopen the claims which had been declared abandoned because the decision-maker "breached the rules of natural justice and ignored the principles of fundamental justice".
[5] On 9 December 2003, the Refugee Protection Division dismissed the application to have the claim for refugee protection reopened. The application was based on Refugee Protection Division Rule 55 which permits a claimant, or the Minister, to apply to reopen a claim that has been decided or abandoned.
[6] On 31 December 2003, the application for leave and for judicial review in IMM-6186-03 was dismissed. Without leave, there can be no judicial review.
[7] In January 2004, application for leave and for judicial review of the decision of the Refugee Protection Division not to reopen the hearing on the original application was filed. Leave was given, and that is the judicial review which came before me.
[8] As noted by the respondent, the written submissions before me contain strikingly similar affidavit evidence and argument as were contained in IMM-6186-03.
[9] It must be made perfectly clear that the decision of this Court, on 31 December 2003, dismissing application for leave and for judicial review in the abandonment proceedings (IMM-6186-03) is final, subject only to motions to reconsider or to set aside as contemplated by sections 397 and following of the Federal Court Rules. No such motion is before the Court.
[10] At the heart of both proceedings is the conduct of the Skandrovskis' former solicitor. Even though there was no evidence that she had been called before the Law Society or had been given an opportunity to comment on the allegations of misconduct, it was argued that her negligence and conflict of interest appeared from the record. More particularly, PIFs, which were not entirely complete, had been signed within the prescribed 28 days. It was also argued that the Board had failed to deal with Mrs. Skandrovski's illness which is said to have contributed to the delay, other than to receive a negative reply to the question as to whether or not she had been hospitalized. It was said that she was not given an opportunity to explain her illness, that a general question to the effect of whether she had anything else to add was insufficient.
[11] Rules 55(1) and (4) provide:
|
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. |
[12] Despite the general wording of the Rule, it was held by Mosley J. in Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, [2004] F.C.J. No. 1394 (QL), that application to reopen may only be allowed where a breach of natural justice can be established. I agree. The decision not to reopen was reasonable and shall stand.
[13] Ali, supra, began on a similar note in that the PIF had not been filed in time, and his application for refugee protection was declared abandoned. Unlike the Skandrovskis, he only applied for a reopening pursuant to Rule 55 of the Refugee Protection Division Rules. There had been no application for leave and for judicial review on the original abandonment decision.
[14] It turns out the decisions were consistent: both negative. Suppose they were both positive; would the judicial review of the decision to abandon proceed, with the Skandrovskis then proceeding to a reopening hearing if the judicial review were negative? What if the decisions were different?
[15] It will not do to have the Board unwittingly and unknowingly in effect review a decision of this Court not to grant leave. At the very least, the Board should have been informed of the pending application for leave on the abandonment decision, an application which also raised breach of natural justice. To rule otherwise would put the administration of justice into disrepute. Furthermore, a motion to reopen in these circumstances may well constitute an abuse of process which would likely have a negative effect on the integrity of the Board. Refugee Protection Division Rule 52 gives but one example of an abuse of process.
[16] This is not to say that there is no room for an application to reopen a claim if leave were denied by this Court. New facts could come to light. For instance, suppose it turned out that the Board member was an old friend of Mr. Skandrovski.
[17] An appeal from this decision to the Federal Court of Appeal can only be made if, pursuant to section 74 of the Act, the judge certifies that a serious question of general importance is involved, and states the question. Although interaction between section 74 of the Act and Rule 55 is very important, a certified question would not assist the Skandrovskis. By any standard of review, the decision of the Board not to reopen the hearing which had been declared abandoned because there was no violation of the rules of natural justice was well-founded. A certified question must be relevant in that it could support a successful appeal.
"Sean Harrington"
Judge
Ottawa, Ontario
March 9, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-303-04
STYLE OF CAUSE: ZITA SKANDROVSKI,
DIANA SKANDROVSKI
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 22, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: MARCH 9, 2005
APPEARANCES:
Robin Morch FOR APPLICANT
Karen Dickson FOR RESPONDENT
SOLICITORS OF RECORD:
Robin Morch FOR APPLICANT
Toronto, ON
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada