Date: 20041012
Docket: IMM-8665-03
Citation: 2004 FC 1386
Ottawa, Ontario, this 12th day of October, 2004
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
GAZMEND JANUZI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is the sad story of Mr. Januzi who may be sent back to Kosovo just because the Immigration and Refugee Board mailed a notice of hearing to the wrong address! These are the reasons why I am granting judicial review.
[2] Mr. Januzi entered Canada July 12, 2003 and immediately claimed refugee status as an ethnic Albanian. He was handed a Personal Information Form and admonished to complete it and send it to the Board within 28 days. He gave as his address 10350 Bois de Boulogne, Apt. 419, Montreal, the same address he gave for his host, Muzejene Aliu. On July 14, 2004, a pro forma "Notice to appear - abandonment of a claim for refugee protection" was mailed to him by pre-paid regular service, at that address. It reminded him that if he failed to provide the Board with his completed PIF within 28 days he had to appear to explain why. The hearing would take place in Toronto on September 2, 2003. If he provided the completed PIF before then, the meeting would be cancelled. On July 15, 2003, he sent the Board an "Application to change the location of a proceeding". He asked that his file be transferred from Toronto to Montreal. He indicated that his then-current address was 10350 Bois de Boulogne, Apt. 410. He identified his counsel as Muzejene Aliu, 10350 Bois de Boulogne, Apt. 429. This application was stamped as received by the Board in Toronto on July 21, 2003.
[3] On August 1, 2003, a lawyer, Sabine Venturelli, wrote to the Board to ask for a delay to August 25, 2003, to complete the PIF. That letter was stamped as being received on August 5, 2003.
[4] The Board dismissed the request and communicated that decision by leaving a voice message for counsel, stating also that there would be an abandonment hearing if the PIF was not received in time.
[5] Maître Venturelli, who is no longer on the record, has sworn by affidavit that she never received that message. The PIF was filled in and received by the Board in Toronto on August 22, 2003. However, come September 2, 2003, no one appeared and so Mr. Januzi's claim was deemed to be abandoned, and notice to that effect was sent September 10, 2003 to Maître Venturelli and to Mr. Januzi at 10350 Bois de Boulogne , Apt. 410.
[6] Maître Venturelli, on behalf of Mr. Januzi, moved under the Refugee Protection Division Rules to re-open the claim. The application was dismissed. The Board member was of the view that since a notice of the September 2 hearing had been sent by regular mail to Apt. 419, and had not been returned, Mr. Januzi was served. What an unwarranted leap of faith! What nonsense!
[7] The Board is deemed to have known on September 2 that the claim was not abandoned, as the PIF had recently been filed, albeit late. Mr. Januzi did not get a fair hearing. Mr. Januzi got no hearing! A case directly on point is Zaouch v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 982 (Q.L.), a decision of Richard J., as he then was. The notice of abandonment hearing was sent to the wrong address and the applicant was therefore denied a fair hearing in accordance with the rules of natural justice to determine whether he had actually abandoned his claim for refugee status.
[8] I would have thought it went without saying that the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and its Regulations are to be interpreted with its objectives always in mind. Section 3 states the Act is all about saving lives and offering protection to the displaced and persecuted, and to give fair consideration to those who come to Canada claiming persecution. This decision was not a fundamental expression of Canada's humanitarian ideals.
ORDER
The application for judicial review is granted. The decision of the Board declaring the claim for refugee status to be abandoned is quashed and the matter is to be sent back for redetermination by a differently-constituted panel. There is no question of general importance to certify.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8665-03
STYLE OF CAUSE: GAZMEND JANUZI
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: OCTOBER 6, 2004
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATED: OCTOBER 12, 2004
APPEARANCES:
Pia Zambelli FOR APPLICANT
Diane Lemery FOR RESPONDENT
SOLICITORS OF RECORD:
Pia Zambelli FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec