Date: 20050406
Citation: 2005 FC 455
Toronto, Ontario, April 6th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
MUHAMMAD NADEEM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for precision and clarification)
[1] The Applicant, Muhammad Nadeem, is a 27 year old Shia from Pakistan. He claims to fear persecution at the hands of Sunni Muslim members of his community.
[2] On September 27, 2003, the Applicant was provided with his Personal Information Form ("PIF") which he was required to complete and submit to the Refugee Division within 28 days. The day his PIF was due, October 27, 2003, he requested an extension of time to file his PIF, provided notification of counsel and a change of address. The Applicant's counsel requested a two week extension which was denied. The Board received the Applicant's PIF on November 4, 2003.
[3] On November 6, 2003 a show cause hearing was held to allow the Applicant an opportunity to explain why the Board should not declare his claim abandoned. At the end of the hearing the Board declared the claim abandoned.
[4] Under Rule 58(3) of the Refugee Protection Rules the Board has to consider the following factors:
58 (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. (underlining added)
[5] The transcript of the proceedings shows that the member never asked the Applicant (who appeared without counsel) if he was ready to start or continue the proceedings. Instead she aggressively asked him about his financial means, how he came to Toronto and his ability to obtain counsel.
[6] While the willingness to proceed is not determinative, ( see Markandu v. Canada (M.C.I.) [2004] F.C.J. No. 144) by virtue of Rule 58 (3) this point must be established and considered by the Board.
[7] Neither the reasons of the Board nor the transcript of the hearing reveal that this point was established. Given that the Applicant appeared without counsel, I don't see how it is implicit (without the question being asked) that he was ready to proceed. Without this being established there is no evidence that the Board considered this point as it required to do.
[8] Accordingly this application will be allowed
ORDER
THIS COURT ORDERS that this decision of November 6, 2003 be set aside and the matter be referred back to the Board for reconsideration by a differently constituted panel.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9588-03
STYLE OF CAUSE: MUHAMMAD NADEEM
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 5, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: APRIL 6, 2005
APPEARANCES BY:
John Savaglio FOR THE APPLICANT
Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Savaglio
Pickering, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT