BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT
[1] These reasons relate to an application for judicial review of a decision of the Refugee Protection Division of the Immigration Refugee Board (the Board) dated November 26, 2004 in which the Board declined to reopen the Applicant’s refugee protection claim.
BACKGROUND
[2] The Applicant is a 56 year old female citizen of Uruguay. She arrived in Canada on or about March 7, 2001 and filed a claim for refugee status on April 29, 2004.
[3] On June 1, 2004, the Applicant was sent a notice to appear at a Board hearing on June 21, 2004. She failed to appear. On June 21, 2004, she was sent a notice to appear for a “show-cause” hearing to be held on July 9, 2004. She also failed to appear for that hearing. Accordingly, the Board found that her claim had been abandoned and she was sent a notice of abandonment. The notices setting dates for these hearings will be described collectively as the Notices.
[4] On November 26, 2004, the Applicant brought an application to re-open her refugee claim.
DECISION
[5] The Board concluded that it had properly carried out its duty by mailing the notices to the Applicant’s last known address.
[6] The Board also noted that Dr. Julius Ehikwe was shown as the Applicant’s counsel on her Personal Information Form (PIF). However, the Board concluded that since Dr. Ehikwe is not authorized to act as counsel according to the Canadian Society of Immigration Consultants (CSIC), he was not entitled to receive copies of the Notices.
[7] Lastly, the Board found that there had been no breach of natural justice and refused to reopen the Applicant’s claim.
ISSUES
[8] It is useful to note that the following matters are not in issue:
· There is no issue that the Applicant failed to meet her obligation to keep the Board informed of her current address contrary to Rule 4(3) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules) and that, accordingly, her failure to receive the Notices was not a breach of the principles of natural justice.
· There is no issue that the provisions of section 167 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) and subsection 13.1(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 mean that the following three types of counsel may represent applicants before the Board:
(i) lawyers in good standing (Lawyer)
(ii) members in good standing of the CSIC who charge a fee (Consultant)
(iii) if no fee is charged, others who I will describe as “Assistants”
· There is no issue that Dr. Ehikwe is described as counsel retained by the Applicant in her PIF and that he is not described as a Lawyer or Consultant and that he must therefore charge no fee to be considered an Assistant.
· There is no issue that on May 20, 2004, the Board was advised by Dr. Ehikwe that he was receiving no fees and that in an affidavit dated July 4, 2004, the Applicant described Dr. Ehikwe as a No Fee immigration counsel.
· There is no issue that the Board did not send the Notices to Dr. Ehikwe.
[9] Against this background the narrow issue is whether the Board erred when it concluded that the failure to send the Notices to Dr. Ehikwe was not a breach of the principles of natural justice.
DISCUSSION
[10] Respondent’s counsel suggested that the fact that the Board did not send the Notices to Dr. Ehikwe and the fact that a note on the Board’s New File Checklist which says that Dr. Ehikwe is a “Non Authorized Counsel” indicate that the Board did not believe that Dr. Ehikwe was, in fact, representing the Applicant without charging a fee. However, in my view, if the Board was concerned that Dr. Ehikwe was misrepresenting his status, it should have asked the appropriate authorities to investigate his practices. That said, on the record before me, there is no evidence that Dr. Ehikwe lied to the Board about the fact that he was not charging the Applicant a fee or that the Applicant swore a false affidavit when she attested to that fact. Accordingly, Dr. Ehikwe will be treated as counsel in the “Assistant” category in these reasons.
[11] The question then becomes whether Dr. Ehikwe should have received the Notices even though the Applicant was not entitled to receive them because she had failed to update her address. In this regard, the Rules provide as follows:
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31. Rules 32 to 35 apply to any document, including a notice or a request in writing.
32(3) A document provided to a claimant or a protected person must be provided to the claimant or protected person OR, if the claimant or protected person has counsel, to their counsel. [my emphasis] |
31. Les règles 32 à 35 s'appliquent à tout document, notamment l'avis écrit ou la demande écrite.
32(3) Pour transmettre un document au demandeur d'asile ou à la personne protégée, il faut le lui faire parvenir directement OU, s'il est représenté par un conseil, le faire parvenir à celui-ci. [je souligne] |
[12] Counsel for the Respondent submitted that, because the Rule reads “or” instead of “and” before reference is made to notice to counsel, the Board had a choice about where a document would be sent and was entitled to send it only to the Applicant even though counsel was on record.
[13] In my view, while the Board may have complied with its Rule, its conduct was not compatible with the principles of natural justice. A person who chooses to be represented by counsel has a right to such representation. While it is true that an applicant could contact counsel on receipt of a notice of hearing, such a procedure does not make sense in the context of refugee cases in which applicants may not read English or understand the significance of a document and in which the PIF asks an applicant to provide contact information for counsel. In these circumstances, it appears reasonable to conclude that the right to counsel includes a right to have counsel sent critical documents such as the Notices.
[14] Since Dr. Ehikwe was counsel and since he was not sent the Notices, the Board erred in concluding that there had been no failure of natural justice. This application for judicial review will, therefore, be allowed.
Ottawa, Ontario
August 11, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4850-05
STYLE OF CAUSE: Nilda Albin Alberti v. Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 5, 2006
REASONS FOR JUDGMENT: SIMPSON J.
APPEARANCES:
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Mr. Hamalengwa |
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Ms. Catherine Vasilaros |
SOLICITORS OF RECORD:
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Mr. Julius Ehikwe |
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Mr. John H. Sims, Q.C. |