Ottawa, Ontario, April 15, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Lin is a citizen of China. On July 4, 2003, the Refugee Protection Division (RPD) of the Immigration and Refugee Board dismissed his request under Rule 55(1) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules) to reopen his claim for refugee protection.
BACKGROUND
[2] Mr. Lin arrived in Vancouver on March 20, 2002 and immediately stated his desire to claim refugee status. He was given a notice to appear at the Vancouver office of what was then the Convention Refugee Determination Division (CRDD) on May 13, 2002, to discuss his claim. He was also given a personal information form (PIF) that was to be completed and submitted within 28 days.
[3] A few days later, Mr. Lin moved to Toronto where, on March 25th, he sought the assistance of counsel. The next day, his counsel faxed correspondence to the CRDD in Vancouver notifying it of Mr. Lin's change of address and requesting a change of venue to Toronto for the May 13th appearance. Counsel also asked that the port of entry (POE) notes regarding Mr. Lin be sent to him and that an extension of one month be granted for filing the PIF.
[4] A case management officer in Vancouver responded to counsel and advised that the request for a change of venue would be considered after receipt of the PIF. Counsel was reminded that the PIF was due on April 25, 2002, although, later, an extension to May 20th was granted. The correspondence permitting the extension warned that if the PIF was not received by May 20th, a notice to appear for the commencement of abandonment proceedings would be issued. Mr. Lin did not submit his PIF by May 20th because his counsel had not received the POE notes.
[5] On June 5th, counsel again faxed a request for the POE notes and asked for a further extension of one month within which to file the PIF. Counsel received the POE notes on that day. Since Mr. Lin had not filed his PIF by May 20th, a notice to appear for "an abandonment of a Convention refugee claim" was issued on June 6th. Mr. Lin submitted his PIF on June 18th.
[6] The abandonment hearing took place by teleconference on July 2, 2002. Mr. Lin was represented by counsel who explained that the delay in filing the PIF was due to the late receipt of the POE notes. Counsel submitted that Mr. Lin's actions were consistent with an intent to pursue his claim, that he never intended to abandon it and that he was ready to proceed. When counsel was asked if Mr. Lin was intending to give evidence, counsel responded that he was not. The board member was not satisfied that the reasons provided were sufficient and declared the claim abandoned. Detailed and comprehensive reasons were provided for the board member's decision. Mr. Lin sought leave to apply for judicial review of the abandonment decision. His leave application was dismissed on November 18, 2002.
[7] On January 31, 2003, Mr. Lin applied to the RPD to reopen the abandoned claim pursuant to Rule 55(1). In support of his application, he submitted that: he was ready to proceed with his claim; his PIF had been completed and submitted; he had a genuine claim for refugee protection; it would be an injustice not to provide him with an opportunity to present his claim.
THE DECISION
[8] The acting assistant deputy chairperson of the RPD dismissed the application with the following endorsement:
Application to re-open is dismissed. Claimant has provided no information in this application that was not before the panel making the original decision abandoning the claim.
THE IMPUGNED PROVISION
[9] Rule 55 provides:
| Refugee Protection Division Rules, SOR/2002-228
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.
(2) The application must be made under rule 44.
(3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister.
(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
|
|
Règles de la Section de la protection des réfugiés, DORS/2002-228
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.
(2) La demande est faite selon la règle 44.
(3) Si la demande est faite par le demandeur d'asile, celui-ci y indique ses coordonnées et en transmet une copie au ministre.
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle. |
BREACH OF NATURAL JUSTICE
[10] Mr. Lin's argument is two fold. First he submits that the refusal of the RPD to reopen his claim constitutes a breach of natural justice and fairness. He says that it is clear that the RPD failed to direct itself to Rule 58(3) which requires consideration of the explanations given by the claimant at the abandonment hearing including the fact that the claimant is ready to start or continue the proceedings. This failure, according to Mr. Lin, constitutes a breach of his procedural right to be heard.
[11] This submission is premised on Mr. Lin's assertion that, on an application to reopen, breach of natural justice is not the only issue. Rather, the application to reopen is in the nature of an appeal, a reconsideration, a review or a hearing de novo of the abandonment decision and, as such, it is incumbent on the member to have independent regard to the factors that are articulated inRule 58(3). In short, Mr. Lin claims that the function of the board on an application to reopen is to determine whether the board, on the abandonment hearing, properly considered the noted factors.
[12] Rule 58(3) relates to abandonment hearings and contains the factors that must be considered before a claim is declared abandoned. Abandonment proceedings and applications to reopen are discrete proceedings. Under the previous legislation, there was no specific provision relating to the reopening of refugee claims. Jurisprudence, however, dictated that a claim could be reopened where a principle of natural justice had been breached: Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (F.C.A.). Absent a breach of natural justice, an application to reopen could not succeed: Kononov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1121 (T.D.); Serrahina v. Canada (Minister of Citizenship and Immigration) 2003 FCT 477.
[13] When the Immigration and Refugee Protection Act, S.C. 2002, c. 27 (IRPA) was enacted, Rule 55 was added. Mr. Lin contends that if Parliament had intended to restrict the reopening of claims to situations involving a breach of natural justice, it would have so said. Instead, it compels the RPD to reopen if a breach of natural justice has occurred. It does not say that a claim cannot be reopened for any other reason.
[14] This issue was canvassed by Mr. Justice Mosley in Ali v. Canada (Minister of Citizenship and Immigration) 2004 FC 1153. Justice Mosley opined that, "[a]t first blush, the wording of Rule 55 appears to permit the consideration of applications to reopen on any ground and the only factor which mandates that the decision must be a positive one for the claimant is the establishment of a breach of natural justice". However, he concluded that the intention of Rule 55 is to codify the pre-IRPA jurisprudence and that the correct interpretation is that "applications to reopen may only be allowed where a breach of natural justice can be established". I concur with that view and said so in Krishnamoorthy v. Canada (Minister of Citizenship and Immigration) 2005 FC 237. Several of my colleagues have decided likewise: Shahid v. Canada (Minister of Citizenship and Immigration) 2004 FC 1607 per Madam Justice Simpson; Ahmad v. Canada (Minister of Citizenship and Immigration) 2005 FC 279 per Mr. Justice vonFinckenstein; Wackowski v. Canada (Minister of Citizenship and Immigration) 2004 FC 280 per Madam Justice MacTavish.
[15] With respect to an examination of the factors in Rule 58(3), Mr. Lin is correct that the RPD member conducting the abandonment hearing is obliged to consider them. However, if a claimant feels that proper regard was not had to the enumerated factors, the remedy is to seek leave to apply for judicial review. Mr. Lin availed himself of that opportunity but was not successful. He cannot now request that the RPD reopen his claim on the basis of the Rule 58(3) criteria when the court has dismissed his application for leave.
[16] The approach suggested by Mr. Lin, in my view, constitutes a collateral attack on the abandonment decision and the decision of the court dismissing the application for leave in relation to it. Moreover, consideration of the abandonment decision and the basis upon which it was made is, by virtue of the court's order dismissing leave, res judicata. If Mr. Lin is correct that a claim can be reopened on grounds other than breach of natural justice (and I make no such determination because I need not do so on the facts before me) then I think it could be only on the basis of new evidence as that term is used and understood in law.
[17] Regard must also be had to the scheme of IRPA and its subordinate legislation. While the abandonment determination is undoubtedly of great significance to Mr. Lin, he is not without recourse. He can, and in all likelihood will, take advantage of the provisions of section 112 and benefit from a pre-removal risk assessment (PRRA).
ADEQUACY OF REASONS
[18] Mr. Lin's second argument relates to the adequacy of the reasons. While there was some debate in the written submissions regarding whether an obligation to provide reasons exists, it is of no consequence because the parties agree that the endorsement cited earlier in these reasons constitutes the board member's reasons for the decision.
[19] Mr. Lin says that those reasons are inadequate because they provide no insight as to whether the RPD considered "the factors that needed to be considered on abandonment". Since I have canvassed the abandonment hearing factors in my analysis regarding Mr. Lin's first argument, it follows that the reasons cannot be said to be inadequate for the reason advanced.
[20] I have examined the record and the substantive grounds advanced on the application to reopen. There is no allegation of breach of natural justice. Rather, the grounds constitute a reiteration of Mr. Lin's submissions to the member at the abandonment hearing. In the circumstances, there was little to be said by the RPD on the application to reopen. The reasons are responsive to Mr. Lin's submissions and they are adequate.
CERTIFICATION
[21] Mr. Lin proposed the following question for certification:
On an application for reopening a claim pursuant to Rule 55 of the Refugee Protection Division Rules, is the RPD limited to considering whether there is a breach of natural justice?
[22] Mr. Lin submits that the Federal Court of Appeal has not had occasion to rule on this issue. The respondent opposes certification on the basis that there is no debate in the court regarding Rule 55. The law is settled, says the Minister, that absent a breach of natural justice, a refugee claim cannot be reopened. The only debate that exists in the Federal Court is whether a decision to reopen is interlocutory or final in nature. Mr. Lin has advanced no authority to establish that the law is not clear with respect to the grounds to reopen.
[23] Mr. Lin is quite correct that there is no appellate court decision relating to Rule 55, which is a new provision. It may well be, at some point, that guidance from the Federal Court of Appeal is required. However, on the facts before me, this is not such a case. I therefore decline to certify the question.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5740-03
STYLE OF CAUSE: JI LONG LIN v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 14, 2005
REASONS FOR : LAYDEN-STEVENSON J.
APPEARANCES:
SOLICITORS OF RECORD:
Levinson & Associates
Barristers and Solicitors
Toronto, Ontario. FOR APPLICANT
John H. Sims, Q.C.