Kabir v. Canada (Minister of Citizenship and Immigration) (T.D.) [2002] 2 F.C. 564
Date: 20011119
Docket: IMM-6017-00
Neutral citation: 2001 FCT 1267
IN THE MATTER OF the Immigration Act, 1976, as amended, S.C. 1989,
c. 35;
AND IN THE MATTER OF a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board regarding the Application, pursuant to Rule 28 of the Convention Refugee Determination Division Rules, to re-open the claim to Convention refugee status of HUMAYUN KABIR.
BETWEEN:
HUMAYUN KABIR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks to set aside the decision of S. Seevaratnam, a member of the Immigration and Refugee Board (the "Board"), dated November 1, 2000, whereby the Board refused to reopen the applicant's Convention refugee claim. Although the decision was rendered on November 1, 2000, the Reasons for the decision were issued on November 24, 2000[1].
[2] The applicant, born on September 20, 1968, is a citizen of Bangladesh. He arrived in Canada on May 8, 2000, and claimed refugee status upon arrival. At the end of June 2000, he received a package of documents from the Immigration authorities which included a blank Personal Information Form ("PIF") for completion and submission to the Board within 20 days of receipt.
[3] The applicant's claim was referred to the Board on June 22, 2000. On June 26, 2000, the Board sent a letter to the applicant setting out, inter alia, the filing date of his PIF. The applicant's PIF was due to be filed by August 2, 2000.
[4] On August 14, 2000, the applicant's PIF not having been filed, the Board issued a notice to appear for an abandonment hearing, requesting that the applicant appear on August 23, 2000, to show cause why his claim should not be declared abandoned. Although the applicant did not appear on August 23, 2000, an immigration consultant, Moin Ahsan, appeared on his behalf and sought an extension of 10 days for the filing of the PIF. The applicant was given an extension to September 5, 2000, to file his PIF but did not meet this deadline. On September 7, 2000, the Board declared his refugee claim to have been abandoned[2]. The applicant's PIF was filed on September 12, 2000.
[5] On October 25, 2000, the applicant filed a motion requesting the Board to reopen his claim to refugee status. In support of his application, the applicant filed his affidavit dated October 25, 2000, wherein he sets out the reasons for the delay in complying with the Board's order to file the PIF by September 5, 2000. At paragraph 7 of the concise statement of law and arguments, filed with his affidavit in support of his motion, the applicant states the following:
7. It is submitted that taking into consideration the unique facts of this case that this Motion ought to be granted. The failure of the Applicant to file his PIF in time was due solely to the actions and/or neglect of his previous counsel, Mr. Moin Ahsan, Immigration Consultant.
[6] In his affidavit of October 25, 2000, the applicant relates the actions and/or omissions of his immigration consultant, Mr. Moin Ahsan, which, in his view, explain and justify his failure to file the PIF on time. In his challenge of the Board's decision not to reopen his refugee claim, the applicant's submission is that the Board failed to consider the explanations given in his affidavit of October 25, 2000, as to why his PIF was not filed by September 5, 2000.
[7] As I indicated earlier, the Board issued its reasons on November 24, 2000. After reviewing briefly the history of the applicant's claim, the Board makes the following statement at pages 2 and 3 of its reasons:
On September 5, 2000 the PIF was not received. On September 7, 2000 the PIF still had not arrived, there was no explanation from either counsel or claimant why the Refugee Division should not declare his claim to be abandoned.
I find that the claimant was given ample opportunity to complete his PIF. The PIF was due on August 2, 2000. An additional three weeks passed before the abandonment hearing on August 23, 2000, the claimant still failed to submit the completed PIF. An extension of time to file the PIF was granted and both counsel and claimant failed to complete the PIF or provide any explanation for the non-compliance. The claimant has had reasonable time to complete the PIF.
I find that there has been no breach of natural justice and that the claimant was given ample opportunity to provide a completed PIF. Therefore, I determine that the motion is denied.
[8] Clearly, it does not appear that the Board gave any consideration to the applicant's affidavit of October 25, 2000. In that regard, Mr. Eastman, counsel for the respondent, referred me to a document entitled "Request Record" found at page 103 of the Tribunal Record. That document, an internal Refugee Division document, purports to be the Board's decision. The top portion of the document shows the applicant's name and his IRB file number. It then shows, in the middle part, the name of the applicant's counsel, Mr. Ian Wong. It then indicates the nature of the matter before the Refugee Division, in this case a motion to reopen. In the lower portion of the document, under the heading "Part C", the word "Decision" appears, next to which are three squares, indicating: "granted", "denied", "other". The box next to the word "denied" is ticked. Immediately thereafter, under the heading "Please state reasons for any decision in area below", the Board wrote the following:
- csl [counsel] must serve material on persons [illegible] alleging negligence
- all motions mailed to address provided by claimant
- there was no csl of record
- claimant failed to pursue claim with due diligence
[9] The above entry confirms that the Board did not consider the applicant's affidavit. It appears that the Board did not give the affidavit any consideration because it was not served on Mr. Ahsan, i.e. the person against whom negligence was alleged by the applicant. For reasons that I am unaware of, the Board's reasons for not considering the applicant's affidavit do not appear in the reasons issued by the Board on November 24, 2000. There is also no evidence that Mr. Wong, the applicant's then counsel, was advised by the Board that it would not consider the applicant's affidavit, unless it was served upon Mr. Ahsan.
[10] The applicant submits that the Board erred in law in failing to give fair consideration to the particular circumstances of his case. He further submits that the Board erred in law in concluding that there were insufficient reasons to justify a reopening of his claim to Convention refugee status. I am satisfied, on the evidence before me, that the Board did not consider the applicant's affidavit of October 25, 2000, in dismissing his motion to reopen. Consequently, I am of the view that the Board committed a reviewable error. There was obviously no duty upon the Board to reopen the applicant's refugee claim but the Board had a duty, in my view, to consider why the applicant had failed to file his PIF in a timely manner. This, it failed to do and, as a result, it made a reviewable error.
[11] Even though it is clear that the Board failed to consider the applicant's affidavit, Mr. Eastman submits that the applicant's judicial review proceedings should be dismissed, since his motion to reopen is totally without merit. In Mr. Eastman's submission, that is so because the evidence adduced by the applicant before the Board is so totally lacking in credibility that the Board cannot but dismiss the motion. Consequently, relying on the Supreme Court of Canada's decision in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, Mr. Eastman submits that it would make no sense to return the matter to the Board since the decision to be rendered by the Board on the motion to reopen is a foregone conclusion, i.e. the motion must fail. In Mobil Oil, Iacobucci J., writing for the Court, makes the following remarks at pages 227 and 228:
In fact, in this case, whether or not the Board could have summarily rejected the 1990 application without giving Mobil Oil an opportunity to respond to the case against the application, it must be emphasized that it was not the Board which initially responded, but the Chairman. Although the Board is able to delegate to the Chairman pursuant to s. 51 of the federal Implementation Act, no argument in favour of a legal delegation was made in this case, so there must have been no such delegation prior to the Chairman's response. Although the Chairman's position was apparently ratified by the Board before the companies applied for judicial review, it has not been suggested that Mobil Oil was apprised of this ratification nor given an opportunity to respond to it.
Mobil Oil's application was greeted by a letter from the Chairman which stated that the application could "not be brought before the Board" because it was not "bona fide". While I agree that the Implementation Act absolutely cannot support the interpretation advocated by Mobil Oil, it goes too far to pretend that Mobil Oil did not deserve a full hearing, which could have been effected in writing, in respect of its novel interpretation. The Chairman's response was the product of an improper subdelegation which effectively interrupted Mobil Oil's procedural guarantees. Indeed, before this Court counsel for the Board admitted that it would have been preferable for Mobil Oil to have been given a Board hearing. If it would have been preferable, why should another result be accepted?
In light of these comments, and in the ordinary case, Mobil Oil would be entitled to a remedy responsive to the breach of fairness or natural justice which I have described. However, in light of my disposition on the cross-appeal, the remedies sought by Mobil Oil in the appeal per se are impractical. While it may seem appropriate to quash the Chairman's decision on the basis that it was the product of an improper subdelegation, it would be nonsensical to do so and to compel the Board to consider now Mobil Oil's 1990 application, since the result of the cross-appeal is that the Board would be bound in law to reject that application by the decision of this Court.
The bottom line in this case is thus exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition: Cardinal, supra. On occasion, however, this Court has discussed circumstances in which no relief will be offered in the face of breached administrative law principles: e.g., Harelkin v. University of Regina, [1979] 2 S.C.R. 561. As I described in the context of the issue in the cross-appeal, the circumstances of this case involve a particular kind of legal question, viz., one which has an inevitable answer.
In Administrative Law (6th ed. 1988), at p. 535, Professor Wade discusses the notion that fair procedure should come first, and that the demerits of bad cases should not ordinarily lead courts to ignore breaches of natural justice or fairness. But then he also states:
A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
In this appeal, the distinction suggested by Professor Wade is apt.
[12] In support of his proposition, Mr. Eastman submits that the applicant's affidavit of October 25, 2000, contains false statements. Mr. Eastman makes a similar submission in regard to the affidavits filed by the applicant in this judicial review application. These affidavits are dated January 8, 2001 and June 19, 2001. Mr. Eastman further submits that the affidavits of Ian Wong and Moin Ahsan, dated September 18, 2001 and September 14, 2001 also lack credibility.
[13] It is in the following respects that Mr. Eastman submits that the foregoing affidavits are not credible. Firstly, Mr. Eastman says that the applicant's assertion, in his affidavit of October 25, 2000, that he only retained Mr. Wong in connection with his refugee claim when he first met him on September 13, 2000, is not true. After the applicant filed his affidavit of January 8, 2001, in these proceedings, in which he repeated what he had said at paragraph 12 in his October 25, 2000 affidavit, i.e. that he had met Mr. Wong for the first time on September 13, 2000, and that he had retained him at that time, the respondent filed its memorandum of argument on February 12, 2001. At paragraph 13 of that memorandum, Mr. Eastman wrote that on the basis of the applicant's PIF, it was clear that the applicant had retained Mr. Wong by the latest September 5, 2000. In answer to that submission, the applicant filed his June 19, 2001 affidavit where, in paragraphs 2 to 6 he states:
2. I wish to take this opportunity to clarify some aspects of my Affidavit which was signed by me on January 8, 2001 and submitted to this Court in support of this Application for Leave and for Judicial Review.
3. At paragraph 12 of that Affidavit, I write that I met Mr. Ian Wong for the first time on September 13, 2000 at which time I retained his services for the purposes of continuing with my refugee claim. However, I have also noted at paragraph 39 of my Personal Information Form, which was signed on September 5, 2000, that Mr. Wong is authorized to represent me. On the face of it, there appears to be an inconsistency in these facts which I would like to explain.
4. I first met with Mr. Moin Ahsan some time in July of 2000 after arriving in Canada. I had heard about Mr. Ahsan through other Bangladeshi people that I had met in Canada. During my initial consultations with Mr. Ahsan I told him that I wanted to hire his services to prepare my Personal Information Form but that I also required a lawyer to represent me during my refugee hearing. Mr. Ahsan recommended Mr. Wong to me.
5. I called Mr. Wong's office sometime in July of 2000 after being provided his telephone number by Mr. Ahsan. At that time, I told Mr. Wong that I would like him to represent me during my hearing. I told Mr. Wong that I was seeing Mr. Ahsan for the purposes of preparing my Personal Information Form and that I wanted to put his name down as my authorized representative. Mr. Wong agreed to this. From my best recollection, we spoke for roughly 2 or 3 minutes on that occasion.
6. I wish to stress that despite the fact that Mr. Wong's name appears at paragraph 39 of my Personal Information Form that I did not in fact have any face to face meeting with him until September 13, 2000 as I swore in my first Affidavit. I met with Mr. Wong on that day because it was not until September 12, 2000 that I received a completed and stamped copy of my Personal Information Form and I wanted to provide Mr. Wong with a copy of this document. Furthermore, between the time of my initial contact with Mr. Wong in July of 2000 and my meeting with him on September 13, 2000, I had had no other contact with Mr. Wong at all save for a phone call that I made to his office on that same day to make an appointment with him.
[14] As appears from paragraph 5 of his affidavit of June 19, 2001, the applicant concedes that he had in fact retained Mr. Wong prior to September 13, 2000. However, that is not the end of the story. The evidence now before me, which results from the respondent's cross-examination of the applicant, Mr. Wong and Mr. Ahsan on their affidavits, paints a somewhat different picture of the events. It is clear, on that evidence, that Mr. Wong was retained by the applicant by July 21, 2000 at the latest, when a Legal Aid certificate was issued authorizing him to act on behalf of the applicant in the following respect, i.e. for representation of the applicant at CRDD proceedings, including preparation of the PIF. On July 27, 2000, Mr. Wong acknowledged receipt of the Legal Aid certificate issued in favour of the applicant.
[15] It is also of interest to note that on September 13, 2000, Mr. Wong sent the Ontario Legal Aid Office his interim account for services rendered to the applicant. The interim account shows that Mr. Wong interviewed the applicant on September 10, that he prepared his PIF on September 12, and that he again interviewed the applicant on September 13, 2000. In his affidavit of September 18, 2001, Mr. Wong, at paragraph 7, states that his interim account to Legal Aid contains errors, in that he did not meet with the applicant on September 10 and he was not involved in the preparation of the PIF.
[16] The evidence also reveals that Mr. Wong, at the relevant time, acted on behalf of the applicant's sister, Afroza Begum, in connection with her own refugee claim. The applicant's sister was found to be a Convention refugee by the Board on August 23, 2000. There is also some evidence that, after his arrival in Canada, on May 8, 2000, the applicant lived with his sister.
[17] I am satisfied that neither Mr. Wong nor the applicant have been truthful in regard to the date and the circumstances in which Mr. Wong was retained by the applicant. Mr. Wong's cross-examination, which took place on September 20, 2001, is disturbing. I will not go into the details of that cross-examination, but suffice it to say that as a result thereof, I do not have any confidence whatsoever in Mr. Wong's evidence.
[18] Mr. Eastman also submits that the applicant has not been truthful is in regard to his dealings with Mr. Ahsan. In his affidavit dated October 25, 2000 the applicant states, at paragraph 3, that he met Mr. Ahsan for the first time during the first week of July 2000. He repeats this assertion at paragraph 3 of his affidavit dated January 8, 2001. However, in his affidavit of September 14, 2001, Mr. Ahsan states that he first met the applicant on August 20, 2000.
[19] For the sake of completeness and for a better understanding of the "disagreement" between the applicant and Mr. Ahsan regarding their first meeting, I wish to highlight parts of Mr. Ahsan's testimony of September 20, 2001. Mr. Ahsan's evidence is that he first met the applicant on August 20, 2000. That evidence is supported by an entry in his diary which shows a meeting with the applicant at 11:00AM on Sunday, August 20, 2000. Mr. Ahsan testified that during the course of their meeting, the applicant informed him that he was having difficulties with his landlord, and thus he believed he was not receiving all of his mail. Mr. Ahsan also stated that he had been informed by the applicant, in a telephone conversation a few days before their August 20 meeting, that Mr. Wong was the applicant's lawyer and that Mr. Wong had given the applicant his name.
[20] When asked by Mr. Eastman to comment on the applicant's assertion that he had met him in July 2000, Mr. Ahsan responded that he had no recollection of such a meeting. He stated, at page 13 of the transcript, that he had not met the applicant before August 20. Later on, Mr. Eastman asked Mr. Ahsan to comment on paragraph 6 of the applicant's January 8, 2001 affidavit, where he stated that he had met Mr. Ahsan during the first week of July 2000. Mr. Ahsan responded that he had not met the applicant at that time.
[21] Mr. Ahsan testified that what he had agreed to do for the applicant was to "assist him in preparing his PIF". He then stated that he had commenced preparing the PIF approximately one week after the August 20, 2000 meeting. Mr. Ahsan and the applicant met on August 27, at which time the applicant gave him a PIF which he had completed by hand. Mr. Ahsan and the applicant had a further meeting on September 3, 2000 at 1:00PM. Finally, they met again on September 5, 2000 on two occasions, firstly at 11:00AM and then in the evening, around 7:30PM.
[22] Mr. Ahsan then explained paragraph 4 of his affidavit, which reads as follows:
4. On 23 August 2000 I called the IRB to inquire about the status of the Applicant's file to ascertain how much time I had for the preparation of the PIF. I learnt from the IRB during this call that the Applicant's matter was scheduled for the Abandonment Court on the same day. I tried calling the Applicant but could not reach him and as such I felt an obligation to attend the Abandonment Court on his behalf and seek an extension of time for the filing of the PIF. In fact I had two other matters with the Abandonment Court on the same date and time.
[23] Mr. Eastman asked Mr. Ahsan to comment on paragraphs 6 and 7 of the applicant's January 2001 affidavit, where the applicant states that he was advised by Mr. Ahsan on August 23, 2000, that an abandonment hearing had been scheduled and that he did not have to attend the abandonment hearing. Mr. Ahsan responded that the applicant was not "correct about that". Mr. Ahsan then reiterated what he had said in paragraph 4 of his affidavit, i.e. that he had attempted to telephone the applicant, but could not reach him, and as a result, attended the abandonment hearing and sought the extension which the Board granted. Mr. Ahsan then testified that after the August 23, 2000 abandonment hearing which he attended, he telephoned Mr. Wong to apprise him of what had happened. Mr. Ahsan testified that he also informed Mr. Wong that he should take steps to advise the Board that he represented the applicant.
[24] It is clear from Mr. Ahsan's testimony that he recognizes that he is solely at fault for not filing the PIF by September 5, 2000. His explanation, which corroborates the applicant's evidence on this point, is that the failure to file the PIF results from a computer problem. Mr. Ahsan's explanation in that regard appears at paragraphs 6 to 9 of his affidavit, which read as follows:
6. I informed the Applicant about what had transpired and arranged to meet with him to finalize the preparation of his PIF. I had the form portion of the [sic] prepared and printed out, however, I was having difficulties with my computer in printing out the narrative portion of the PIF.
7. On 5 September 2000 the Applicant came to sign his PIF and I told him about the difficulty in printing the narrative. However I read out and translated the contents of the narrative of the PIF and upon being satisfied with the contents the Applicant signed the forms portion of the PIF.
8. Unfortunately, my attempts to print the narrative from another computer also did not work and I later ascertained that this was due to a virus. In fact, I had to re-type the narrative to ultimately have it printed out. The Applicant's PIF was filed with the IRB on 12 September 2000.
9. I acknowledge the fact that I ought to have been diligent about the option of re-typing rather than trying to have the virus infected file printed. I did call the IRB about the delay was told that the matter would be sent to the Abandonment Court if the PIF was not received within a reasonable period. In fact I was facing similar problem [sic] with another file which was also in the Abandonment Court at the same time as the Applicant's. That matter was indeed sent back to the Abandonment Court for a Show Cause. However it appears from subsequent events that the applicant's claim with the IRB was declared abandoned due to failure in filing the PIF on time. It further appears that the Applicant was not served with any notice to appear at the Abandonment Court to Show Cause for the delay.
[25] However, what is surprising from that evidence is that the PIF was only filed one week later, i.e. on September 12, 2000. Mr. Ahsan's explanation for that delay is not very convincing. Mr. Ahsan testified that he had spoken with a case officer at the IRB, who informed him that there would be no problem, as long as he did not file the PIF "too late". Mr. Ahsan believes that he spoke to the case officer on September 7, and states that he was not told that the claim had been declared abandoned. At page 64 of the transcript, the following questions and answers appear:
Q. So you knew that the panel had set the deadline at September 5th.
A. That's correct.
Q. But yet you were satisfied with a case officer telling you that you could hand in a few days late when they told you that on September 7th?
A. That's right.
[26] As I indicated earlier, the applicant informed Mr. Ahsan, during their August 20, 2000 meeting, that he did not believe that he was receiving his letters by reason of a dispute with his landlord. That is the position taken throughout by the applicant to justify his lack of diligence in the Refugee Board process. It is difficult to believe that the applicant, who came to Canada to seek refuge from persecution in Bangladesh, would not take a greater interest in his refugee claim. If the applicant is to believed on this part of his story, one has to wonder why he did not contact the Board to find out what was happening. This is another area of the evidence which troubles me.
[27] I have no hesitation in agreeing with Mr. Eastman's submission that the applicant and Mr. Wong have not been entirely truthful. I also agree with Mr. Eastman's submission that there are certain parts of Mr. Ahsan's testimony which leave much to be desired, more particularly, his reasons for not filing the PIF prior to September 12. It is on this basis that Mr. Eastman submits that it is a foregone conclusion that the Board would dismiss the applicant's motion to reopen. Unfortunately, I cannot agree.
[28] It cannot be disputed that it is up to the Board to decide whether the applicant's refugee claim should be brought back to life. It is the Board's responsibility to assess the evidence and decide whether the refugee claim should be reopened. In so doing, the Board will no doubt consider the applicant's credibility in the light of all of the evidence, including the evidence of Ian Wong and Moin Ahsan. The Board will no doubt consider the fact that the applicant and Mr. Wong have, to a certain extent, attempted to distort the truth with respect to the circumstances which have given rise to the Board's decision to declare the applicant's refugee claim to be abandoned.
[29] The Board will also, no doubt, give serious consideration to the evidence given by Mr. Ahsan, in particular, his reasons why the PIF was not filed by September 5, 2000. As I indicated earlier, I am not impressed with the explanation given by Mr. Ahsan in that regard. However, the Board will appreciate, on its own, Mr. Ahsan's evidence and it will arrive at its own conclusion. It goes without saying that the Board is not bound by my remarks concerning Mr. Ahsan's testimony, nor is it bound by my remarks regarding the evidence of both the applicant and Mr. Wong. As I have indicated, it is up to the Board to assess the whole of the evidence in deciding whether or not the applicant's refugee claim should be reopened.
[30] I cannot agree with Mr. Eastman's submission that I should dismiss the applicant's judicial review application, since I am not convinced that the Board would necessarily dismiss the motion to reopen. In Mobil Oil, supra, the Supreme Court, at page 228, referred to a passage from Professor Wade's Administrative Law, where the learned author stated that "[...] it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless".
[31] Although I have serious doubts about the merits of the applicant's motion to reopen, I cannot conclude that his chances of succeeding are "hopeless". Consequently, I will allow this judicial review application. The matter will be returned to the Board for reconsideration, and the Board will allow Mr. Eastman, if he so wishes, to appear at the hearing on the motion to reopen, so as to make the submissions which he deems necessary. As part of the record before the Board, I hereby direct that all of the affidavits filed in these judicial review proceedings, as well as the transcripts of the cross-examinations conducted by the respondent, shall form part of the record before the Board on the motion to reopen.
[32] I now turn to costs. Since the applicant and Mr. Wong have, in my view, attempted to mislead both this Court and the Board in order to obtain a reopening of the applicant's refugee claim, it is appropriate, in these circumstances, that they be condemned to the costs of this application. In my view, they are both to blame for what has happened. Mr. Eastman took the only course of action which was open to him in the circumstances, i.e. to challenge the affidavits filed by the applicant, Mr. Wong and Mr. Ahsan. The evidence now before me completely justifies his course of action. It is therefore entirely proper that the applicant and Mr. Wong pay the costs of this application.
[33] I am also of the view that the applicant and Mr. Wong should pay the costs which will arise by reason of Mr. Eastman's participation in the proceedings before the Board on the motion to reopen. I would therefore invite Mr. Eastman and Mr. Band to contact me within the next 30 days with respect to the determination of the amount of the costs which I have ordered to be paid by the applicant and Mr. Wong. If counsel can agree within 30 days with respect to an amount, there will be no necessity of contacting me. However, if counsel cannot agree, they should contact me within the 30 days.
[34] I have condemned the applicant and Mr. Wong to pay costs. Mr. Wong's conduct in these proceedings, to put it mildly, is simply not acceptable. His conduct has not been that which is to be expected from members of the Bar. He has not been truthful, nor has he acted properly in his dealings with the Legal Aid Office. Consequently, I hereby direct Mr. Eastman to bring this file to the attention of the Law Society of Upper Canada.
[35] I now turn to the applicant. The applicant has also not been truthful. The applicant must realize that in coming to Canada to seek refuge, he must abide by the laws of this country. In that regard, it must be impressed upon him that it is expected that witnesses shall tell the truth, the whole truth, and nothing but the truth. The applicant does not appear to understand the meaning of those words. He attempted to mislead the Board and he has attempted to mislead me in these proceedings. He also recognizes that he attempted to deceive Immigration authorities when he entered Canada. Specifically, he was carrying a number of business cards from Canadian businesses, including two Toronto Transit Commission tickets, the purpose of which was to convince Canadian Immigration authorities that he was a returning Canadian, and not an immigrant attempting to enter the country.
[36] Also, in his PIF filed on September 12, 2000, the applicant misrepresented the truth in that he indicated that his sister, Afroza Begum, lived in Bangladesh, when, as he knew, she was living in Canada and had claimed refugee status.
[37] In these circumstances, it is, in my view, entirely proper that the applicant and Mr. Wong be condemned to pay costs on this application and on the motion to reopen before the Board.
Marc Nadon
JUDGE
O T T A W A, Ontario
November 19, 2001.
[1] Following of the Board's decision of November 1, 2000, counsel for the applicant faxed a letter to the Board, requesting written reasons. The reasons issued on November 24, 2000, were in response to counsel's request.
[2] Subsection 69.1(6) of the Immigration Act gives the Board the power to declare a refugee claim to have been abandoned. The subsection provides the following:
69.1 (6) Where a person who claims to be a convention refugee
(a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim,
(b) fails to provide the Refugee division with the information referred to in subsection 46.03(2), or
(c) in the opinion of the Division, is otherwise in default in the prosecution of the claim,
the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned and, where it does so, the Refugee Division shall send a written of its decision to the person and to the Minister.