Date: 200010130
Docket: IMM-5975-99
BETWEEN:
GYOZO STUMF, HAJNALKA ILLYES
and HAJNALKA VIVIEN STUMF
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
[1] This application is for judicial review, under s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated November 19, 1999, in which the Board denied the applicants' motion to have their refugee claims re-opened. The Board had previously determined that the applicants' refugee claims had been abandoned due to their failure to file their personal information forms ("PIFs") and their failure to appear at a hearing to consider the abandonment of their claims.
The Facts
[2] The applicants are a married couple and a young child who are citizens of Hungary (the "Applicants"). They arrived in Canada from Hungary on March 12, 1999, and, shortly thereafter, filed refugee claims on the basis of persecution in Hungary because of their Roma or "gypsy" heritage. The Applicants made their claims in Etobicoke, Ontario, with the assistance of Judy Simms, who served as their immigration consultant. Because the Applicants were living in a temporary residence and did not have a permanent mailing address in Canada, they provided immigration officials with Ms. Simms' office address as their mailing address for immigration purposes.
[3] The Board's records indicate that the matter unfolded as follows:
| June 4, 1999 A package prepared by the Board which contained the Applicants' PIFs was mailed to Ms. Simms. The PIFs were to be completed by the Applicants and filed on or before July 15, 1999. |
| June 22, 1999 Ms. Simms sent a fax to the Board which indicated that she had received the PIFs. She asked about the date for their filing and she was told of the July 15 due date. |
| July 9, 1999 Ms. Simms sent a second fax to the Board asking for an extension of the due date because she had not heard from the Applicants and because her efforts to reach them through their friends had failed. |
| July 12, 1999 A single Board member denied Ms. Simms' request for an extension of time to file the Applicants' PIFs. |
| July 14, 1999 A notice to appear for a hearing concerning the abandonment of a Convention refugee claim (the "Hearing Notice") was sent by the Board to Ms. Simms by prepaid regular mail. The Hearing Notice was also sent to the Applicants at their temporary address. That Notice was returned by the post office because it could not be delivered. However, the Board received nothing from the post office which indicated that Ms. Simms had not received the Hearing Notice. |
| August 4, 1999 Neither the Applicants nor Ms. Simms appeared at the hearing to show cause why the Board should not declare the Applicants' refugee claims to have been abandoned (the "Abandonment Hearing"). |
| August 27, 1999 Two Board members issued a decision declaring the claims to have been abandoned. |
| October 25 or 26 Mr. Stumf attended at the Board's office to ask about the status |
| 1999 of his refugee claim and was told of the abandonment. He filed a notice of change of address and a motion to re-open the refugee claims (the "Motion to Re-Open") in the form of a letter from Mr. Sarkozi, who was the Applicants' new immigration consultant. The material filed also included an affidavit which was defective in that it was entirely written as if Mr. Sarkozi was to sign it but was actually signed by Mr. Stumf (the "First Affidavit"). |
| November 18, 1999 The Motion to Re-Open was considered and denied by a single member of the Board. This is the decision at issue in this judicial review (the "Decision"). |
| November 19, 1999 The Board called Mr. Sarkozi and left a message on his voice mail indicating that the Motion to Re-Open had been denied and giving reasons for the Decision. Mr. Sarkozi was asked to call the Board back but he did not do so. |
| November 19, 1999 The Board's Notice of Decision was mailed to the Applicants. It simply indicated that the Motion to Re-Open had been denied. Reasons were not provided in the Notice of Decision. |
The Decision
[4] For the file, the Board member wrote the following reasons for his Decision (the "Reasons"):
| Claimants were represented by counsel who enquired about & applied for a PIF extension. There is no supporting info. on the file that the claimants and their then counsel did not receive PABA* notices. The claimants and their then counsel failed to appear at the show cause (no PIF abandonment) hearing. The claimants and their then counsel failed to notify the IRB of the claimant's change of address. Contrary to Mr. Sochozy's (sic) statement it was the claimants' counsel who indicated to the Board that she had difficulty contacting the claimants. The abandonment of these claims did not constitute a breach of natural justice. |
The Evidence
[5] At the time he made his Decision, the Board member had before him the Board's record, including the defective First Affidavit. Those documents showed:
| 1. that Ms. Simms had prepared the Applicants' inland refugee claim forms; |
| 2. that the Applicants had contacted Ms. Simms "many times" and were told to wait for the PIF package to arrive (no particulars were given about the dates on which Ms. Simms was contacted but the evidence indicated that the contacts were all made before Ms. Simms received the PIFs); |
| 3. that Ms. Simms received the PIF package and asked for an extension for its filing on the grounds that she could not reach the Applicants; |
| 4. that some time on the day of the Abandonment Hearing on August 4, 1999, the Applicants told Ms. Simms of their new address; |
| 5. that, on the basis of either Mr. Sarkozi's or Mr. Stumf's information and belief, neither the Applicants nor Ms. Simms received the Hearing Notice. In this regard, Paragraph 5 of the First Affidavit said: |
| The claimants and Judy Simps (sic) advise, and I do verily believe, that neither had received a Notice to Appear for an Abandonment Hearing for Mr. Stumf and his family; |
| 6. that the Applicants never intended to abandon their refugee claims; and |
| 7. that Ms. Simms' address was the Applicants' address for immigration purposes until August 4, 1999. |
[6] Leaving aside the fact that the First Affidavit was a nullity, the material before the Board lacked information about two important matters. Most significantly, there was no affidavit from Ms. Simms confirming that she had failed to receive the Hearing Notice and, secondly, there was no clear evidence from the Applicants or from Ms. Simms showing that the Applicants had contacted Ms. Simms in the six-week period between June 22 (when the record shows that she had the PIFs) and the Abandonment Hearing on August 4, 1999. Indeed, as noted above, the First Affidavit suggested that all contacts were made before the PIFs arrived at Ms. Simms' office.
[7] For this application for judicial review, Mr. Stumf swore an affidavit dated January 29, 2000 (the "Second Affidavit"). However, it did not provide additional information on the important matters identified above. Regarding whether Ms. Simms received the Hearing Notice, the information in the First Affidavit was merely repeated in the Second Affidavit when Mr. Stumf stated that:
| 6. Our motion further advised the Tribunal that neither we, nor the consultant, Judy Simps (sic), had received a Notice to Appear for the Abandonment hearing... |
[8] On the issue of whether the Applicants stayed in contact with Ms. Simms through late June and July of 1999, the evidence in the Second Affidavit differed from the evidence in the First Affidavit. Although the reference to contacting Ms. Simms "many times" and being told to await her receipt of the PIF package was repeated, the evidence in the First Affidavit about the Applicants' moving date (August 1) and their advising Ms. Simms of their new address three days later (August 4) was deleted. The Second Affidavit merely said that:
| 5. When we moved to a permanent address, in August 1999, the consultant assured us that she had advised the Immigration and Refugee Board of the new address. |
[9] Accordingly, there was no evidence before me that the Applicants contacted Ms. Simms between June 22 and the Abandonment Hearing on August 4, 1999, and no evidence from Ms. Simms indicating that she did not receive the Hearing Notice.
The Issues
[10] The Applicants submit that:
| 1. The Decision is perverse because the First Affidavit states in paragraph 5 that neither Ms. Simms nor the Applicants received the Hearing Notice. |
| 2. The Board had an obligation to call for further or better evidence, and its failure to do so was a breach of natural justice. |
| 3. The Decision was of no force and effect because it was made by one Board member when a quorum of two Board members was required. |
| 4. Written reasons were necessary and were not provided. |
| 5. The standard of review to be applied to the Decision is "correctness". |
Issue One
[11] It is clear to me that the Board did not accept the statement in the First Affidavit to the effect that neither Ms. Simms nor the Applicants had received the Hearing Notice. Given the defective and confused state of the First Affidavit, it is my view that the Board was entitled to doubt it and look for evidence to corroborate the Applicants' failure to receive the Hearing Notice. It found no such evidence the Board's file. The Board's conclusion that "there is no supporting info. on the file that the claimants and their then counsel did not receive PABA notices" was correct on the basis that receipt of the Hearing Notice by Ms. Simms constituted receipt by the Applicants, and there was no evidence in the Board's file that Ms. Simms had not received the Hearing Notice. There was evidence that the Applicants did not receive the Hearing Notice at their temporary address but, since it is clear that the Applicants used Ms. Simms office as their official address for immigration purposes until sometime in August, it was not necessary for the Board to deal with the fact that the Hearing Notice which had been sent to their temporary address had been returned. Accordingly, the Board's decision on this issue was not perverse.
Issue Two
[12] It is my view that the Board had the discretion, but not the obligation, to call for further evidence such as an affidavit from Ms. Simms. For this reason, the fact that it did not do so did not amount to a failure of natural justice. I should observe that counsel for the Applicants before me included in his book of authorities a decision rendered by Madam Justice McGillis in Ning Ou v. The Minister of Citizenship and Immigration (1999), 48 Imm. L.R. (2d) 131 (F.C.T.D.), in which she held that fresh evidence could be filed on a judicial review application when the issue was the abandonment of a refugee claim and not the merits of such a claim. However, when I asked counsel why an affidavit from Ms. Simms stating that she did not receive the Hearing Notice was not filed for this hearing, I was given no explanation and no supplementary affidavits were offered. The unexplained failure to file either an affidavit from Ms. Simms or a more precise affidavit from Mr. Stumf setting out the dates of his contact with Ms. Simms leads me to conclude, as the Board clearly did, that Ms. Simms did receive the Hearing Notice and that the Applicants were not in touch with her between June 22 and the Abandonment Hearing on August 4, 1999.
[13] I should observe that, in this situation in which the Applicants are seeking a discretionary remedy, it is incumbent upon them to put forward clear and convincing evidence to show that, through no fault of their own, they did not receive the Hearing Notice. That was not done in this case.
Issue Three
[14] The Applicants said that, by reason of subsections 69.1(7) and (8) of the Act, the Motion to Re-Open the Applicants' refugee claims should have been heard by two members of the Board. This argument was raised by counsel for the Applicants for the first time at the hearing. I therefore asked both parties to provide written submissions. They did so, and I have considered their submissions in preparing these reasons.
[15] Section 69.1 of the Act is entitled "Hearing into Refugee Claims". It concerns the disposition of refugee claims either by hearings on the merits or on the abandonment of such claims, and it is clear, pursuant to ss. 69.1(7), that, absent consent, a quorum of two Board members is required to consider the abandonment of a refugee claim. However, this requirement was met in this case. The Board's decision on the abandonment was made by two Board members.
[16] In my view, the Motion to Re-Open was not covered by section 69.1 of the Act because it requires a hearing by two board members only for the disposition of refugee claims on their merits or a decision on abandonment. The Applicants' submissions on this issue appear to be identical to those made before this Court in Faghihi v. M.C.I., [2000] 1 F.C. 249 (T.D.). I agree with the reasoning of Evans J. (now J.A.) on this issue when he said (at paragraph 10):
| Subsection 69.1(7) applies only to a "hearing under this section." Only two kinds of hearing are held pursuant to s.69.1. Subsection 69.1(1) provides for a hearing into a person's claim to be a refugee, and subsection 69.1(6) provides for a hearing into the abandonment of a refugee claim. Subsection 69.1(7) does not therefore include a motion to reopen a decision dismissing a claim. |
[17] There is nothing in the Act which deals with motions before the Board. However, section 65(1) of the Act provides that rules may be made governing the activities of, and the practice and procedure before, inter alia, the Board. The relevant rules are the Convention Refugee Determination Division Rules (the "Rules") and Rule 28 deals with motions. However, it is silent on what number of Board members constitutes a quorum to dispose of a motion.
[18] The Applicants' counsel submitted that Rule 29 indicates that motions must be heard by two members of the Board. Rule 29 appears under the heading "Decisions" and says:
| "In the event of a split decision on an interlocutory matter, the presiding member shall have the deciding vote". |
[19] I have also considered Rule 39. It appears under the heading "General" and provides that:
| These Rules are not exhaustive and, where any matter that is not provided for in these Rules arises in the course of any proceeding, the Refugee Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously. |
[20] Reading Rules 29 and 39 together, I have concluded that, since neither the Act nor the Rules establish a quorum for hearing the Motion, the Board had discretion under Rule 39 to designate one member to hear the Motion. However, if the Board had chosen to have two members dispose of the Motion, and if they had disagreed about the proper result, Rule 29 would have applied. In this case, since only one Board member was assigned to the Motion, it is my view that Rule 29 did not apply (see also Faghihi, supra, at paragraph 30).
[21] The Applicants said that Mr. Justice Evans' determination in Faghihi was wrong and suggested that His Lordship may not have had the benefit of the earlier Court of Appeal decision in Weerasinge v. Canada, [1994] 1 F.C. 330 (C.A.). In Weerasinge, the provision under scrutiny was ss. 63(2) of the Act, which permits a single member of the Board to render a decision on the merits of a Convention refugee claim if one of the members who heard a claim becomes unable to take part in the decision. The Court of Appeal ruled that resort to ss. 63(2) was a serious matter, and said that, when that section was engaged, a complete statement of the material circumstances should be put into the Board's record. The Court noted that, under section 69.1(7) of the Act, refugee claimants are normally entitled to have their claims disposed of (by a decision on the merits or on abandonment) in a hearing before a two-member panel. Further, unless the claimant has consented, or unless section 63(2) applies, a single member of the Board has no jurisdiction to dispose of a refugee claim. The Applicants say that this conclusion should mean that a single member of the Board also lacks jurisdiction to hear a motion to re-open a refugee claim.
[22] It is my view that the Weerasinge decision has no application in this case. Here, the Applicants' refugee claims had already been disposed of in accordance with the Act. Accordingly, as I concluded above, and as Justice Evans concluded in Faghihi, a motion to re-open a decision to treat a refugee claim as abandoned is not governed by the Act.
[23] At this point, it becomes important to put the Motion to Re-Open the Applicants' refugee claims in its proper procedural context. In my view, the Applicants' refugee claims were disposed of by a two member Board under section 69.1(7) of the Act when the decision was made that the claims had been abandoned. Thereafter, the Applicants were entitled to file an application seeking leave to apply for judicial review of the decision and, when the time for bringing that application expired, the Applicants' refugee claims also expired.
[24] As noted above, motions to re-open abandoned refugee claims are not mentioned in the Act. They are made pursuant to the Board's Rule 28, which sets out the procedure to be followed. However, no framework is provided for the consideration of such a motion in either the Act or the Rules. Nowhere is guidance given about the factors to be considered or the test to be applied.
[25] It seems likely that the majority of motions to re-open will be brought in situations in which refugee claimants did not receive notice of an abandonment hearing, did not know of the Board's decision and, therefore, did not seek judicial review.
[26] In such situations, the question on a motion to re-open should be whether an applicant received notice of the hearing to consider the abandonment of his or her refugee claim. If the respondent is unable to show that proper notice has been given, then the motion will be allowed on the basis that the applicant has been denied the opportunity to be heard.
[27] The question is whether there is any principle of natural justice which requires two members of the Board to make the determination about proper notice and, in my view, the answer is no. I can see no reason why one member of the Board cannot provide a full and proper hearing of a motion to re-open a refugee claim following a decision that it has been abandoned.
[28] To summarize, I have concluded that the Applicants in this case had no statutory right to have the Motion considered by two members of the Board and no principle of natural justice dictates that the Motion should have been heard by a two-person Board.
Issue Four
[29] In my view, there was no statutory requirement for formal written reasons under section 69.1(11) of the Act because the Board was not deciding the merits of the Applicants' refugee claim. I have therefore concluded that the Board member's handwritten Reasons met the standards set in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 ("Baker"). The Reasons explained the Board's conclusions and they were communicated promptly by telephone to Mr. Sarkozi, who was the Applicants' representative at the relevant time.
Issue Five
[30] On one hand, the Applicants said that little deference was owed and that "correctness" was the appropriate standard of review in this case. On the other hand, the Crown urged me to find that the Board was owed the highest level of deference, and that the corresponding standard of "patent unreasonableness" should apply. The Crown submitted that the Decision not to re-open the Applicants' refugee claims was a procedural one, and that decisions about re-opening are based on the facts of a particular case. I accept that the Board has the expertise to deal with its Rules and with matters of notice, and that considerable deference is owed.
[31] However, two factors have led me to reject the submissions of both parties and conclude that "reasonableness" is the appropriate standard of review. Firstly, the effect of the Decision is to prevent the re-establishment of the Applicants' refugee claim. The seriousness of the impact of the Decision, together with the absence of a privative clause, suggest that highest deference is not appropriate. However, for the reasons discussed above, the correctness standard which was suggested by the Applicants' counsel is also not appropriate.
Conclusion
[32] For all these reasons the application will be dismissed.
Certified Questions
[33] Applicants' counsel posed the following questions for certification. I have amended them slightly:
| 1. Is a decision pursuant to Rule 28 of the Rules refusing to re-open a claim which was found to be abandoned to be reviewed by the Federal Court on the standard of "correctness", following Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, or "reasonableness" following Baker? |
| 2. Does such a decision require a quorum of two Board members on the Motion pursuant to s. 69.1(7) and (8) of the Act? |
| 3. Must the Board's decision on the Motion be accompanied by written reasons pursuant to s. 69.1(11) of the Act and/or the Baker decision? |
[34] Question one will not be certified because, in my view, whatever the standard of review, the Board's decision was open to it in the exercise of its discretion on the Motion to Re-Open. Accordingly, an appellate answer to question one would not alter the result of this application for judicial review.
[35] The following question will be certified to deal with question 2 above:
| Should the motion to reopen the Applicants' refugee claims following the Board's decision that the Applicants had abandoned their claims have been heard by two members of the Board pursuant to s. 69.1(7) of the Immigration Act, R.S.C. 1985, c. I-2, or pursuant to the rules of natural justice? |
[36] Question three will not be certified because the question has been answered by the Supreme Court of Canada in Baker. In Baker, handwritten notes were sufficient to constitute reasons for a decision which, like the decision in this case, was of considerable importance to the applicant.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
October 30, 2000
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: GYOZO STUMF, HAJNALKA ILLYES
and HAJNALKA VIVIEN STUMF
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-5975-99
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 8, 2000
REASONS FOR ORDER: SIMPSON, J.
DATED: October 30, 2000
APPEARANCES:
Mr. Rocco Galati for Applicants
Ms. Marissa Beata Bielski for Respondent
SOLICITORS OF RECORD:
Galati, Rodrigues & Associates for Applicants
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Ottawa, Ontario
__________________* The parties agreed that the PABA notices was the Hearing Notice.