Date: 20040804
Docket: IMM-3982-03
Citation: 2004 FC 1064
Montréal, Quebec, August 4, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
ALLA REVICH
KONSTANTIN REVICH
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On June 3, 2003, the Refugee Protection Division declared abandoned the refugee claim of Alla Revich (female applicant) and her son, Konstantin Revich(male applicant). This is an application for judicial review of that decision declaring the claim abandoned.
FACTS
[2] Alla Revich, her son Constantin and her daughter Eugenia together claimed protection as Convention refugees. Russian, they emigrated to Israel in 1993 and became Israeli citizens. They allege that they were persecuted over there because of their Russian origin and their friendship with Arab individuals.
[3] The hearing on the refugee claims was supposed to be held on March 10, 2003. On the day of the hearing, the applicant told her counsel that she and her son could not be there because they were too sick, and went to the doctor for a consultation. The chairperson of the panel chose to proceed with the hearing since the applicant's daughter was there. A hearing was scheduled for May 14, 2003, so that the applicant and her son could explain why their claim should not be declared abandoned.
[4] At their appearance on May 14, the applicants filed a certificate from the physician dated March 10, 2003, stating that the applicants were sick from March 3 to March 12. The physician had also prescribed medication. According to the documentary evidence from the pharmacy, the prescription had not been filled until March 13, 2003.
[5] These two facts, i.e. the pre-dated leave and the prescription filled the day after the leave period provided by the physician, are the grounds given by the chairperson for declaring the claim abandoned. The chairperson found it difficult to believe a document written for school - the applicants attended courses and had to explain their absence - and foremost, he could not believe that the illness was very serious when the prescription was not filled until three days after the visit to the doctor.
[6] The applicant explained that she and her son had to have a certificate for school, failing which they risked no longer being entitled to attend school (in the case of her son) or the adult classes (in her case). She also explained that it had not been necessary to fill the prescription immediately, since the physician had provided them with medication when they visited, which lasted the three-day interval between getting the prescription and filling it. Finally, she stated that they were so ill on March 10 that they thought it better to go to the doctor than to attend their hearing.
[7] The applicant's counsel had also indicated, at the hearing, that he was ready to proceed on the merits of the refugee claim.
ISSUE
[8] Was declaring the claim abandoned an error that warrants the intervention of the Federal Court?
LEGISLATION
Immigration and Refugee Protection Act, 2001, c. 27
| 168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so. |
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168. (1) Chacune des sections peut prononcer le désistement dans l'affaire dont elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication. |
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Refugee Protection Division Rules (SOR/2002-228)
| 58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if |
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58. (1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé si, à la fois : |
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| (a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and |
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a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire; |
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| (b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information. |
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b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées. |
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| (2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity |
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(2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité : |
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| (a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or |
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a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire; |
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| (b) in any other case, by way of a special hearing after notifying the claimant in writing. |
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b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit. |
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| (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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ANALYSIS
[9] The Refugee Protection Division Rules (Rules) clearly provide how the Division must proceed in order to declare a claim abandoned once the preliminary steps have been carried out. The tone is imperative (indicative in French, use of "must" in English): the Division must give the claimant the opportunity to explain why the claim should not be declared abandoned, must take into account the claimant's explanations and must also take into account any other relevant factor, in particular the claimant's intention to pursue the matter.
[10] In Ahmad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (F.C.T.D..), which also involved a matter of abandonment, Lemieux J. determined that the standard of review to apply to the Division's abandonment claim decisions is that of reasonableness simpliciter:
[27] L'Heureux-Dubé J., in Baker, supra, built upon that Court's decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R 982 (amended reasons at [1998] 1 S.C.R. 1222). Taking into account the analysis in both of these cases, the lack of a privative clause, the object of the judicial review (question of law vs. fact-finding expertise) and the purpose of the provision leads me to conclude that the appropriate standard of review of the CRDD's decision the applicant had abandoned his refugee claim is one of reasonableness simpliciter. As I see it, the basis upon which the CRDD's decision rests does not involve primarily legal considerations, for example, the interpretation of a statutory provision, nor findings of fact where paragraph 18(4)(d) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] would require greater deference. In this case, the basis of the decision is one of mixed law and fact.
[11] In other words, it is a matter of verifying if the Division's decision can withstand an intensive review, as Iacobucci J. explained in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56:
This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
[12] Lemieux J., in Ahmad, supra, summarizes our Court's position in matters of abandonment at paragraph 32 of his decision:
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.).
[13] Since Ahmad, the Rules have been amended. Rule 32 of the Convention Refugee Determination Division Rules, SOR/93-45, which applied at the time, read as follows:
32. (1) Before declaring a claim to have been abandoned pursuant to subsection 69.1(6) of the Act or an application to have been abandoned pursuant to subsection 69.3(2) of the Act, the Refugee Division shall serve on the parties a notice to appear directing them to attend a hearing on the abandonment.
(2) The notice to appear shall also inform the parties that where, at the end of a hearing concerning an abandonment, the Refugee Division does not declare the claim or application to have been abandoned, the Refugee Division will forthwith commence or resume the hearing into the claim or application.
[14] As we have seen, the current rule is much more specific about the Division's obligations to ensure a fair decision.
[15] The case law provides that the question the Division must ask itself is whether the applicant truly intended to abandon the claim. The Rules provide that the Division take into consideration the explanations given, take into account the willingness to proceed.
[16] In this case, the claimant did not behave like a person indifferent to the outcome of her claim. She informed her counsel of her absence, she consulted a physician, who confirmed the seriousness of her state of health. She came to the abandonment hearing with the necessary documentary evidence. She explained, reasonably, why she had not filled the prescription immediately.
[17] The chairperson of the panel stumbles on this single point: the prescription had not been filled upon leaving the doctor's office.
[TRANSLATION]
. . . if you noticed, counsel, I did not say that it was a false certificate because I had no evidence of it. However, what I did say, what I'm telling you, is that the testimony given to me by the claimants after my questions about those certificates, the date, how . . . and especially, what is major for me, in my mind, is going to a doctor and getting a prescription for medication, filling out that prescription three days later when, moreover, it is outside the leave that was granted. Therefore, for Dr. Vartanian, he estimated, in his wisdom, that after his visit on the 10th, by the 13th the people would be able to work and to go to school, and that then, the prescription was filled the day after the end of the leave, three days after the medical visit, these reasons were determinative in arriving at the decision to consider that Mrs. . . .
I came to the conclusion that there had been a failure in pursuing the claim, a serious one in pursuing the claim, because I did not accept the explanations given to me and the documents given that, on its face, it seems that when they went to consult a doctor, his recommendations were not followed.
So, one must ask oneself what the claimant's motives were, I do not know. But under the circumstances, the panel finds that the claim has been abandoned. . . .
[18] The chairperson simply dismissed the claimant's explanation that she had received enough medication for three days from the doctor. He does not explain why he dismissed the explanation and foremost, he did not seem to take into account the fact that the claimant's counsel was ready to proceed on the merits of the claim. In the words of Iacobucci J. in Southam, supra, the chairperson drew "an invalid inference" from the evidence in declaring that the claim had been abandoned. In my view, given the standard of review applicable in this case, the Court can and must intervene.
[19] In my view the chairperson erred, based on the language of the Rules as well as on the case law on abandonment, and the judicial review should be allowed.
ORDER
THE COURT ORDERS that
- the application for judicial review be allowed;
- the decision declaring that the applicant had abandoned her claim be set aside;
- the matter be referred to a differently constituted panel of the Convention Refugee Determination Division for determination on the applicants' refugee claim;
- no question to be certified.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3982-03
STYLE OF CAUSE: ALLA REVICH
KONSTANTIN REVICH
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 4, 2004
REASONS FOR ORDER AND ORDER: BLAIS J.
DATE OF REASONS: August 4, 2004
APPEARANCES:
Michel LeBrun FOR THE APPLICANTS
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel LeBrun FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec