Date: 20040714
Docket: IMM-141-04
Citation: 2004 FC 989
Vancouver, British Columbia, July 14, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
CHEN XUN LIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board), reasons dated December 17, 2003. In that decision, the Applicant's claim for refugee protection was declared abandoned pursuant to Rule 58(2) of the Refugee Protection Division Rules, SOR/2002-228 (Rules).
ISSUE
[2] I will only analyze one issue, which is determinative of the case. Was it unreasonable for the Board to declare the Applicant's refugee claim abandoned?
[3] For the following reasons, I answer in the affirmative and will therefore allow the application.
BACKGROUND
[4] For ease of reference, I will reproduce the facts as described by the Board in its decision, with a few specifications where needed. The Applicant arrived in Canada by ship on August 26, 2003 and made a refugee claim on October 15, 2003. The Applicant was determined eligible by a senior immigration officer, who issued a conditional departure order and referred to the Board on October 21, 2003. According to the referral notice, the Applicant was provided a blank Personal Information Form (PIF) in person on October 21, 2003. However, the Applicant states through his counsel that he was not actually handed a copy of the PIF until the next day, October 22, 2003. Using the October 22 date, a completed PIF was due at the Board on or before November 19, 2003.
[5] On October 31, 2003, the Board in Vancouver received a faxed letter from the Applicant's counsel seeking an unspecified extension of time for the Applicant to file his completed PIF. Counsel had been recently retained and had not received a response to his request for "disclosure" of specified documents the Board may have received from Citizenship and Immigration Canada (CIC), which request was made in the same letter. On November 13, 2003, the Board wrote counsel advising him that his application to extend the filing time for the PIF was denied. At the time, the Board had no documents from CIC in regard to the Applicant. However, on November 13, 2003, the Board wrote to CIC asking for the "Minister's information" to be filed forthwith in accordance with CIC Operations Memorandum IP95-10, IMM 750-00038 dated June 12, 1995.
[6] On November 14, 2003, counsel sent a faxed letter to the Board noting that his earlier request for an extension of time to file the completed PIF had been denied. Counsel further stated that he was not in possession of the requested CIC documents and he sought an extension of time to file the PIF until "5 days after our office comes into possession of the CIC entry notes, declarations, etc."
[7] In a letter dated November 19, 2003, the Board advised counsel that his extension request of November 14, 2003 had been denied. On November 21, 2003, counsel again wrote the Board advising that the Applicant's PIF was complete but that he would be forwarding it to the Board subject to receiving the "appropriate" disclosure from CIC.
[8] On November 20 and 25, 2003, documents in regard to the Applicant were received from CIC and were forwarded to the Applicant's counsel on the same day. I note that the Applicant's counsel states he received the documents on November 27, 2003.
[9] On December 3, 2003, the Board received a completed PIF from the Applicant.
[10] On December 9, 2003, both the Applicant and counsel appeared for an abandonment proceeding.
CONTESTED DECISION
[11] In its reasons dated December 17, 2003, the Board started by writing that "the claimant has failed to provide a satisfactory explanation for the delay in submitting his PIF and there is a lack of other relevant factors to establish that the claimant has not abandoned his claim". Other relevant excerpts are as follows:
I accept that the claimant may, on the day of the abandonment hearing, have been ready to continue with his claim. However, I do not consider that the submission of a completed Personal Information Form six days prior to the abandonment proceeding together with the presence of the claimant at an abandonment proceeding is sufficient to establish that the claimant has not abandoned his claim [...] After the dismissal of the second application there remained several days for the claimant to file his completed PIF within the timeframe but he failed to do so [...]
The claimant was represented by experienced counsel who was acting on instructions from the claimant. It is clear from counsel's letter of Nov. 21, 2003 that the decision not to file the PIF was made with full knowledge of the possible consequences. The fact that counsel stated in his letter that the claimant was not intending to abandon his claim cannot, in my view, shield the claimant from the consequences of his deliberate actions. To allow this to happen would be tantamount to allowing claimants and their counsel to set their own rules of procedure. There is nothing inherently unfair in requiring claimants to state their story within a specified time frame, even if they must do so without the benefit of the CIC materials.
The Board concluded:
The claimant has failed to comply with Rule 6(1) of the Immigration and Refugee Protection Division Rules and has failed to provide a satisfactory explanation for filing his PIF out of time. The fact that he stated he was not intending to abandon his claim is, in the particular circumstances of this case, not sufficient for not declaring the claim abandoned. The claim is therefore declared abandoned pursuant to Rule 58.
ANALYSIS
[12] Pursuant to Rule 58(2) of the Refugee Protection Division Rules, SOR/2002-228 (Rules), a claim may be declared abandoned after the Board provides the claimant an opportunity to give explanations. The key section is found at Rule 58(3). It provides the factors that the Board must consider to decide whether a claim is to be declared abandoned or not:
| 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. |
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58(3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire. |
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[13] As for the standard of review in an abandonment proceeding, it is reasonableness simpliciter (Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.), paragraphs 27-28).
[14] In the case at bar, it is the late filing of the Applicant's PIF that triggered the abandonment proceeding. Rule 6(1) provides that the PIF "must be received by no later than 28 days after the claimant received the form". The Chairperson's Guideline 5 entitled Providing the PIF and No PIF Abandonment in the Refugee Protection Division provides that "[i]f the claimant has not received a copy of the Port of Entry notes, this is not a reason for granting an extension of time to file the PIF". It should be underlined though, that guidelines are only guidelines and that it is the factors described in Rule 58(3) that must ultimately determine whether a claim should be declared abandoned.
[15] I note that nowhere in its reasons nor in its conclusion does the Board refer explicitly to Rule 58(3), though the introductory sentence "the claimant has failed to provide a satisfactory explanation for the delay in submitting his PIF and there is a lack of other relevant factors to establish that the claimant has not abandoned his claim" alludes to the wording found in that Rule.
[16] I will now go through the facts and the Board's reasoning in light of the Rule 58(3) factors. First, the Board must consider the Applicant's explanations as to why the claim should not be declared abandoned. The Applicant requested the CIC documents early on in the process (at least as of October 31, 2003, having obtained a blank PIF on October 22, 2003 and the due date being November 19, 2003) and clearly indicated he intended to submit his PIF as soon as possible after receiving these documents. It is quite normal that counsel for a claimant would want to have all relevant documents before him before filling the PIF, in order to provide as exhaustive and detailed information as possible against having to make modifications to the PIF later on and having to justify why this information was not included in the PIF at the very beginning.
[17] Then, the Board must consider "any other relevant information, including the fact that the claimant is ready to start or continue the proceedings". A very "relevant information" which was totally overlooked by the Board is the fact that the Board's answer to the second request for an extension of time made November 14, 2003 was given to the Applicant in a letter dated November 19, 2003. November 19 is the very same date the PIF was due. It is therefore obvious that the Applicant, who was reasonably waiting to find out whether the extension was granted or not, did not have any time to comply with the Board's decision - because of the Board's answer only on the due date, the PIF was doomed to be filed after that due date. On that issue, the Board stated that "after the dismissal of the second application there remained several days for the claimant to file his completed PIF within the timeframe but he failed to do so" (page 5 of the decision). I cannot comprehend how the Board was able to come to such a conclusion. I conclude that giving a negative answer to an extension of time on the due date while counsel had applied five days earlier is a violation of basic procedural fairness and is therefore fatal.
[18] I will still proceed with "any other relevant information, including the fact that the claimant is ready to start or continue the proceedings". The completed PIF was indeed received by the Board before the abandonment hearing. It should be noted that the Applicant's counsel received the CIC documents on November 27, 2003 and therefore submitted the PIF only a few days after. Another factor to be considered is that both the counsel and the Applicant were present at the abandonment hearing. These elements clearly show that the claimant was ready to start to continue the proceedings.
[19] In Ahamad, supra at paragraph 32, Lemieux J. stated:
The decided cases of the Court on a review of abandonment claim decisions by the CRDD indicate the test or question to be asked is whether the refugee claimant's conduct amounts to an expression of intention by that person, he or she did not wish or had shown no interest to pursue the refugee claim with diligence; this assessment is to be made in the context of the obligation of a claimant who breaches one of the elements of subsection 69.1(6) to provide a reasonable excuse (Perez v. Canada (Solicitor General) (1994), 93 F.T.R. 256 (F.C.T.D.), Joyal J.; Izauierdo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1669 (T.D.) (QL), Rouleau J.; Ressam v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 50 (F.C.T.D.), Pinard J.; Alegria-Ramos v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 150 (F.C.T.D.), Dubé J.). (My Emphasis)
I conclude that the Board's decision to declare the claim abandoned was unreasonable. First, there is the obvious fact that the negative answer to the request for an extension of time was given on the due date. I find also find that the Applicant's counsel was diligent in pursuing this matter. Finally, the overall assessment of the Rule 58(3) factors in this case can only lead me to conclude the Board made an unreasonable decision in declaring the Applicant's claim abandoned.
[20] This application is allowed. The matter is referred back to a differently constituted panel for re-hearing according to the present Order.
[21] The parties had the opportunity to raise a serious question of general importance and did not propose any. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The matter is referred back to a differently constituted panel for re-hearing according to the present Order. No serious question of general importance is certified.
(Sgd.) "Michel Beaudry"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-141-04
STYLE OF CAUSE: CHEN XUN LIANG v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 13, 2004
REASONS FOR ORDER AND ORDER: BEAUDRY J.
DATED: July 14, 2004
APPEARANCES:
Mr. Christopher Elgin FOR APPLICANT
Ms. Caroline Christiaens FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada