Federal Court Decisions

Date: 19971203

Docket: IMM-4695-97

BETWEEN:

     ZORAIDA HURTADO IZAUIERDO

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

[1]      This was an application for stay of a deportation order. This applicant has filed for judicial review of a decision of the Convention Refugee Determination Division dated November 3, 1997, wherein the Refugee Division determined the applicant's refugee claim which had previously been determined to be abandoned should not be reopened.

[2]      The applicant is a citizen of Columbia who left her country in 1990 and resided in the United States of America until February of 1997 when she entered Canada at Fort Erie, Ontario. Shortly after arrival, in March of 1997, she filed a claim for refugee status. Counsel was retained; as well, she met with an immigration counsellor in the City of Toronto. Immigration Canada was provided with an address from counsel acting on her behalf as well as that of the Consultant who was to accept correspondence on her behalf in order to forward it to her since she was not absolutely sure as to what address she would be occupying in Toronto. On March 10, 1997, the applicant was invited to make a claim for Convention Refugee status and a Notice of Appearance was hand delivered to the applicant indicating that the appearance was scheduled for April 29, 1997. At the same time a Conditional Departure Order was issued.

[3]      After her first meeting with the Immigration authorities, she was told through her counsel that she was to prepare the necessary application forms as well as complete her personal information declaration before April 29, 1997. This had not been done and on two occasions in late April of 1997 her counsel wrote Immigration seeking extensions for time to file his client's PIF. She did not complete her PIF until late June and then turned it over to her counsel who did not file it with the authorities until July 29, 1997.

[4]      On July 14, 1997, the Refugee Division determined that this applicant's claim was abandoned and the refugee claim was withdrawn. A Notice of Abandonment was sent to the applicant. It was not until after this Notice had been sent out that the PIF was filed with the authorities. Her then counsel filed a motion before the Board to have the abandonment re-opened and he was advised approximately one month later that they would not entertain the application and it was denied on November 3, 1997. On November 5, 1997, this motion to stay the deportation was filed with this Court.

[5]      Though there is some evidence that would perhaps indicate some confusion with respect to the Immigration authorities having moved from their usual address on University Avenue to Front Street, I do not feel that this was sufficient to justify the conduct of this applicant or her counsel. She indicates in sworn testimony that it was because of illness that she failed to complete her PIF until the end of June, 1997. A review of the medical evidence does not satisfy me that this is sufficient reason for her not having completed her Personal Information Form.

[6]      The facts reveal that her counsel as at the end of April, some few days before the scheduled appearance before the Refugee Board, was asking for extensions of time. He does not indicate in his affidavit that he was having difficulty reaching his client; there is no evidence that she was diligently pursuing her claim.

[7]      In her narrative, the applicant indicates that she left Columbia having obtained a Visa for Mexico. She left for Tijuana in July of 1990 and crossed the border into the United States with the help of a smuggler. She remained in California for some two years and on July of 1992 she moved to Miami. At no time during her approximately seven years in the United States did she make any application claiming refugee status. It was not until she said she heard from a lawyer in Miami that she should go to Canada to seek refugee status.

[8]      The only authorities cited in support of her application is a decision rendered by Richard J. in the case of Karim Zarouch, 1996 F.C.J. No. 92, where Justice Richard allowed the re-opening of a purported abandoned claimed. The major distinction between that decision and the facts before me is that in the case before Richard J. there was absolute evidence before the Court that the applicant had not received proper notification though the office of the Refugee Determination Board; it did have the correct address on file and erroneously sent it to the wrong party.

[9]      According to the Immigration Act the person who claims Convention Refugee status and fails to appear at the time and place set by the Refugee Division for hearing of the claim, the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned.

[10]      In this particular case that there was ample opportunity afforded both the applicant and her counsel. I am satisfied that she did not diligently pursue her claim and the application for stay was dismissed.

     JUDGE

OTTAWA, Ontario

December 3, 1997