Ottawa, Ontario, January 30, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Sanjay Sharma applied for refugee protection in Canada, but failed to appear on January 24, 2005for his hearing before a panel of the Immigration and Refugee Board. He subsequently sent the Board a medical note stating that he was ill. In March 2005, the Board sent Mr. Sharma and his counsel a notice that a hearing would take place on May 5, 2005, at which Mr. Sharma would be given a chance to explain why his claim should not be declared abandoned.
[2] In the interim, two things happened that resulted in neither Mr. Sharma nor his counsel appearing at that hearing. First, Mr. Sharma did not receive the notice of the hearing. He had been using as his mailing address the address of a community centre that had since closed. Second, Mr. Sharma changed counsel. He informed the Board of this change on April 6, 2005, four weeks after his previous counsel had been informed of the hearing that was to take place on May 3, 2005. The Board did not send a fresh notice to the new counsel.
[3] At the May 3, 2005hearing, the Board declared Mr. Sharma's claim for refugee protection abandoned. Mr. Sharma argues that the Board erred in failing to follow its own rules and policies for abandonment hearings and asks me to order a new hearing. I can find no basis for overturning the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issue
1. Did the Board err in law or treat Mr. Sharma unfairly when it declared his application for refugee protection to be abandoned?
II. Analysis
[4] The Board has a duty to give a refugee claimant an opportunity, at a hearing, to show why his or her claim should not be abandoned (Refugee Protection Division Rules, SOR/2002-228, Rule 58(2); see Annex for relevant Rules). Before declaring a claim abandoned, the Board must consider the explanation the claimant provides at the hearing, the claimant's readiness to proceed with his or her claim, as well as other relevant information (Rule 58(3)).
[5] Obviously, these obligations would be meaningless if there were no duty to inform the claimant when and where a hearing was to take place. Indeed, the Board must give a claimant notice in writing of an abandonment hearing (Rule 58(2)(b)). Mr. Sharma argues that the Board had an additional duty to give notice to his counsel - in particular, his new counsel, the appointment of whom the Board was informed on April 6, 2006, a month before the hearing.
[6] When the Board sends a notice, it must provide it "to the claimant...or, if the claimant... has counsel, to their counsel" (Rule 32(3)). Here, the Board sent a notice of the hearing to Mr. Sharma but, regrettably, he never received it, because of the closure of the community centre.
[7] Mr. Sharma argues that the Board had a specific duty to notify his counsel according to Rule 32(3). He urges me to interpret that rule as imposing on the Board an obligation to inform a claimant's counsel of an abandonment hearing in all cases when the claimant is represented by counsel. I am very doubtful of the interpretation Mr. Sharma places on Rule 32(3). However, it is unnecessary for me to make a definitive ruling on it because it appears to me that the Board complied with Rule 32(3), even as it is interpreted by Mr. Sharma. In my view, the Board discharged its duty under Rule 32(3) when it sent a notice of the abandonment hearing both to Mr. Sharma and to his counsel of record. True, it did not send out a new notice when Mr. Sharma changed counsel, but I see no obligation on it to do so. It strikes me that some responsibility must fall on a refugee claimant to check the status of his application, verify his mailing address and ensure that, when he changes counsel, his file is duly forwarded. If Mr. Sharma had done any of those things, none of which is onerous, his application would not have been declared abandoned.
[8] I see no error on the Board's part and must, therefore, dismiss this application for judicial review. Counsel requested an opportunity to make submissions on a certified question. I will consider any submissions received within ten (10) days of this judgment.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed.
2. Counsel have ten (10) days from the date of this judgment to make submissions on a certified question.
Annex
| Refugee Protection Division Rules, SOR/2002-228
Providing documents to the Division
32. (3) A document provided to a claimant or a protected person must be provided to the claimant or protected person or, if the claimant or protected person has counsel, to their counsel.
Abandonment without hearing the claimant
58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if (a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and (b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
Opportunityto explain (2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity (a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or (b) in any other case, by way of a special hearing after notifying the claimant in writing.
Factors to consider
(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. |
Règles de la Section de la protection des réfugiés, DORS/2002-228
Transmission de documents au demandeur d'asile ou à la personne protégée
32(3) Pour transmettre un document au demandeur d'asile ou à la personne protégée, il faut le lui faire parvenir directement ou, s'il est représenté par un conseil, le faire parvenir à celui-ci.
Désistement sans audition du demandeur d'asile
58. (1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé si, à la fois : a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire; b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées.
Possibilité de s'expliquer (2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité : a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire; b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit.
Éléments à considérer
(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. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3174-05
STYLEOF CAUSE: SANJAY SHARMA v. MCI
PLACE OF HEARING: Toronto, ON.
DATE OF HEARING: January 18, 2006
REASONS FOR JUDGMENT
APPEARANCES:
Russ Makepeace FOR THE APPLICANT
Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Makepeace, Romoff FOR THE APPLICANT Toronto, ON
tOTTT
Toronto, ON FOR THE RESPONDENT