Date: 20000225
Docket: IMM-1095-99
Ottawa, Ontario, the 25th day of February, 2000
Present: The Honourable Mr. Justice Pinard
Between
ESIO KABARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision rendered February 17, 1999 by the Refugee Division of the Immigration and Refugee Board, declaring an abandonment of the applicant"s refugee claim under subsection 69.1(6) of the Immigration Act , is dismissed.
| J. |
Certified true translation
Martine Brunet, LL.B.
Date: 20000225
Docket: IMM-1095-99
Between
ESIO KABARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision rendered February 17, 1999 by the Refugee Division of the Immigration and Refugee Board, declaring an abandonment of the applicant"s refugee claim under subsection 69.1(6) of the Immigration Act . This provision reads as follows:
| 69.1 (6) Where a person who claims to be a Convention refugee (a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim, (b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or (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 : a) l'intéressé ne comparaît pas aux date, heure et lieu fixés pour l'audience; b) l'intéressé omet de lui fournir les renseignements visés au paragraphe 46.03(2); 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. |
[2] It is worth reproducing the following extract from the hearing transcript, which clearly indicates the reasoning behind the decision:
| [Translation] |
| Now look here, Sir. The Panel, having discussed, has no other [sic] option but to realize that you were very negligent in your case. You did not report to the roll call of January 12, 1999 because you say you were ill. However, you never went to see a doctor or attempted to see a doctor. You say you treated yourself. |
| You delayed selecting a lawyer several times. It was done very slowly. You lawyer also tells us there are some problems with you and that you are very slow in doing things. You finally give him your form, it is not signed and after some delays you obtained a delay, an opportunity that the Board gave you to get an additional period in which to fill out your form. You did not comply with that opportunity. |
| Finally, the form was not turned in to the Board until February 4, after you had been sent a notice, a notice that you did not receive because, there again, ,you had not filled out your notice of change of address. So there, too, you were negligent. So the Board has no other [sic] choice but to declare an abandonment. You show very little interest in advancing your case and your claim. |
| So, for the failure to report to the roll call, for the failure to fill out and complete and submit your form within the prescribed times, and even to comply with the additional deadlines granted by the Board, and the failure to submit changes of address, the Board declares that the claim has been abandoned.... |
[3] At the hearing before me, counsel for the applicant confined himself to criticizing the Refugee Division"s assessment of the facts, arguing that it was erroneous, incomplete and unreasonable.
[4] Need it be recalled that when a refugee claimant appears before the panel under subsection 69.1(6) of the Act, it is not for the hearing of his claim but so that he may present his argument in relation to the abandonment order that he is facing (see, for example, Ressam v. Canada (1996), 110 F.T.R. 50 and Ghassan v. M.E.I. (June 22, 1994), IMM-2843-93).
[5] Having reviewed the record in this case, not only am I not persuaded that the Refugee Division rendered a decision based on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before it, but on the contrary I find that the extract of the hearing transcript reproduced above is substantially based on evidence in the record. In the circumstances, because I am not satisfied that the decision was unreasonable, it is certainly not my duty to substitute my assessment of the facts for that of the panel.
[6] Accordingly, the application for judicial review is dismissed.
| J. |
OTTAWA, ONTARIO
February 25, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-1095-99 |
| STYLE: ESIO KABARI |
- v. -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JANUARY 25, 2000 |
REASONS FOR ORDER OF PINARD J.
DATED: FEBRUARY 25, 2000
APPEARANCES:
Stewart Isvanffy FOR THE APPLICANT
Claude Provencher FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Isvanffy FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada