Federal Court Decisions

Date: 20020213

Docket: IMM-5309-00

Neutral citation: 2002 FCT 163

Ottawa, Ontario, the 13^th day of February 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                          IRINA LEVIEVA and ELIA ZAGREEV, by his

Representative, Irina Levieva

                                                                                                                                                      Applicants

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 Irina Levieva is the mother of Elia Zagreev, a minor. They arrived in Canada from Israel on April 9, 2000 and on May 30, 2000 made a claim for status as Convention refugees. They bring this application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated September 18, 2000, wherein it was declared that their claims had been abandoned.

THE FACTS

[2]                 On August 9, 2000, the applicants were required to attend an abandonment hearing. Ms. Levieva attended without her son and informed the CRDD that she had not yet received her "refugee kit" which included the Personal Information Form ("PIF"). She explained that the kit had been mistakenly sent back to Citizenship and Immigration Canada from the address it had originally been mailed to.

[3]                 At that time the CRDD informed Ms. Levieva that she should have attended with her son, gave her two refugee kits, strongly advised her to engage counsel without any delay and gave the applicants 28 days to complete their PIFs. Ms. Levieva was warned that:

[We] are maintaining the abandonment procedures, meaning if you fail in fulfilling your obligations ... completing the PIF within 28 days, then abandonment will be concluded, which means your claim will be outside ... thrown outside ... the process.

[4]                 The presiding member's closing words were:

And remember you have ... to submit the PIF in 28 days.

[5]                 A second "Notice to Appear for an Abandonment of a Convention Refugee Claim" was served upon Ms. Levieva which required that she and her son attend before the CRDD on September 6, 2000 for the continuation of the abandonment proceedings.

[6]                 Ms. Levieva and her son attended as required. At that hearing Ms. Levieva explained that she still had not completed a PIF because she had been busy moving to Mississauga from Montreal and arranging medical exams, that she had debilitating back problems for about one week, and that she had been searching for a lawyer. She produced a letter from the Refugee Law Office from Toronto, as well as a letter from counsel, requesting a three week extension of time to submit a PIF and requesting a change of venue from Montreal to Toronto. Such correspondence indicated that Ms. Levieva had applied for legal aid on August 31, 2000.

[7]                 After hearing that explanation and taking a short recess the CRDD declared the claims to be abandoned pursuant to paragraph 69.1(6)(c) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"). That paragraph provides:

69.1(6) Where a person who claims to be a Convention refugee [...] (c) in the opinion of the Division, is otherwise in default in the prosecution of the claim, the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned and, where it does so, the Refugee Division shall send a written notice of its decision to the person and to the Minister.		69.1(6) La section du statut peut, après avoir donné à l'intéressé la possibilité de se faire entendre, conclure au désistement dans les cas suivants_: [...] c) elle estime qu'il y a défaut par ailleurs de sa part dans la poursuite de la revendication. Si elle conclut au désistement, la section du statut en avise par écrit l'intéressé et le ministre.

[8]                 By way of reasons for the decision, the presiding member stated:

In view of the explanations given by the claimant that the Board does not consider to be reasonable, in view of her lack of interest in her claim and that of her son, in view of the claimant's lack of interest in respecting the indications and the obligations and instructions given by the last Board members on the 9^th of August to complete her form within 28 days and it was clear at the time that failure to do so would lead the panel to conclude to abandonment and the fact that she only applied for legal aid on the 31^st of August, just a few days before this hearing and in view of the fact that this morning, at this hearing date, still the claimant has not introduced a personal information form for her and that for her son and in view of all these facts, the Board can only conclude that the claimant does not have any interest in continuing with her claim; since she is not respecting any of the delays given to her up to now and we believe that the change of venue and the extra delay requested by the claimant is only a way of getting extra delay of postponing the starting of her claim.

Because of all these reasons and the fact that the Board has to consider that we have to act with equity and celerity, and in this case equity and justice is [sic] more than been respected, even an extra delay of 28 days was given out, the Board has no choice, but to conclude to [sic] the abandonment of this case.

[9]                 Formal notification of that decision was provided in writing dated September 18, 2000.

THE ISSUE

[10]            The applicants assert that the decision to declare their claims to be abandoned was unfair and unreasonable.

STANDARD OF REVIEW

[11]            The applicants and the Minister agreed before me that the appropriate standard of review of the CRDD's decision that the applicants had abandoned their refugee claim was reasonableness simpliciter. Reliance was placed upon the decision of Lemieux J. in Ahamad v.Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (F.C.T.D.).

ANALYSIS

[12]            In arguing that the decision was unfair the applicants submitted that it was unfair to hold a claimant to a standard whereby 29 days would be an unacceptable period of time within which to file a PIF in circumstances where the next step to be taken, the scheduling of the hearing, would take a number of months. It was also argued that the decision was iniquitous given that the applicants had retained counsel and the CRDD was said to habitually allow extensions of time to file a PIF where counsel had been retained. Finally, it was asserted that it was unfair to declare these claims abandoned after the 28 day period when usually missing the deadline for submitting a PIF triggers an assignment to abandonment court resulting in a de facto extension of time to complete the PIF.

[13]            In the present case, the applicants were required to attend two abandonment hearings. A review of the transcript of proceedings at each hearing shows that Ms. Levieva was given full opportunity to explain why she had not filled out her PIF and her son's PIF on time. She was given an extension at the first abandonment hearing and was clearly warned that the abandonment hearings would be maintained, that she should engage counsel without any delay, and that PIFs had to be submitted in 28 days.

[14]            At the second abandonment hearing her explanations together with the correspondence she presented did not convince the CRDD to grant a further extension of time for the filing of her PIF and that of her son.

[15]            Ms. Levieva had been warned of the consequence of a failure to file a PIF in 28 days, and delayed for the best part of a month in applying for Legal Aid.

[16]            While I may well have come to a different conclusion, the CRDD is entitled to consider and to weigh the explanation provided for the failure to file the required PIFs within 28 days. The CRDD had evidence to support its conclusion, did not consider extraneous factors, and its reasons can stand up to a somewhat probing examination.

[17]            As I am unable to conclude that the CRDD's finding of abandonment was clearly wrong, the application for judicial review must be dismissed.

[18]            Counsel posed no serious question for certification and no question is certified.

ORDER

[19]            IT IS HEREBY ORDERED THAT:

The application for judicial review is dismissed.

"Eleanor R. Dawson"

                                                                                                           Judge