Date: 20041021
Docket: IMM-6604-03
Citation: 2004 FC 1470
Toronto, Ontario, October 21st, 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
ANGELEEN BASI DIRAVIAM
MANASEH JEFFREY BASIL DIRAVIAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review of the August 5, 2003 decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dismissing the applicants' application to have their refugee claim reopened.
[2] The applicants seek:
1. An order setting aside the decision of the Immigration and Refugee Board dated August 5, 2003 in which it was declared that the refugee claims of the applicants, Angeleen Basil Diriviam (the "principal applicant") and her child, Manaseh Jeffrey Basil Diriviam were abandoned.
2. An order reinstating the refugee claims of the applicants and referring the claims back to the Board for determination.
Background
[3] The applicants left Sri Lanka on April 12, 2003 due to persecution based upon Tamil nationality, membership in a particular social group and political opinion.
[4] The applicants arrived in Canada on April 19, 2003 and claimed refugee status.
The applicants were given Personal Information Forms ("PIFs") on April 22, 2003. The completed PIFs were due within 28 days from receipt. The principal applicant states that her child was ill for the first two weeks immediately thereafter.
[5] On May 7, 2003, the principal applicant retained counsel to assist her. On May 8th, she applied for legal aid but was informed that she might not qualify due to having two sisters living in Toronto who would be expected to assist her financially. That same day her counsel sent a letter to the Board requesting a two week extension of time for the applicants to submit their PIFs due to not yet having received legal aid. The request for legal aid funding was denied.
[6] On May 28th, the Board issued a notice to the applicants to appear at an abandonment hearing regarding their claims for refugee status because the applicants had failed to file their PIFs within 28 days. The abandonment hearing was scheduled for June 20, 2003.
[7] In the principal applicant's affidavit she states that due to her son's poor health and her financial situation, she was not able to return to her lawyer for two weeks after receipt of the IRB notice to appear. The principal applicant appeared without counsel at the hearing and submitted the completed PIFs, along with a letter dated June 19, 2003 from counsel advising that the applicants were prepared to proceed with their claim for protection on any of the dates listed in the letter.
[8] The Board determined that the applicants had not shown sufficient reason why the Board should not declare their claim abandoned. It therefore deemed their claim to be abandoned by notice dated June 26, 2003. The principal applicant stated that no written reasons were provided for the decision to declare the claims abandoned.
[9] The applicants did not seek judicial review of the decision, instead, on July 16, 2003 the applicants filed an application pursuant to Rule 55 of the Refugee Protection Division Rules, SOR/2002-228 (the "RPD Rules") requesting that the Board reopen the claim to refugee status. The application was denied by the Board in writing on August 5, 2003.
Reasons of the Board Member
[10] In providing the tribunal record pursuant to rule 9(2) of the Federal Court Immigration and Refugee Protection Rules, S.O.R./93-22, as amended, the Board stated that as there was no statutory requirement, no written reasons were given for the decision. The Board also sent a copy of the endorsement which appears on the file:
At the No PIF Abandonment hearing the presiding Member found that the applicants were not diligent in pursuing alternate means to file their PIFs on time when they realized that there would be a delay in getting a response from Legal Aid. The issue of the minor claimant was not raised at the PABA hearing as it ought to have been if it was a factor which contributed to the late filing. No medical report has been filed with this application in support of that allegation. Having considered all of the information before me, I am of the opinion that there has been no breach of natural justice in declaring the applicants' claims abandoned.
Issue
[11] Did the reopening panel make a reviewable error?
Applicants' Submissions
[12] The applicants submitted that the appropriate standard of review is correctness.
[13] The applicants submitted that the Board's denial of the application to reinstate the claims had the effect of denying the applicants of a hearing on the merits of their refugee claim.
[14] The applicants submitted that in the materials in support of their motion to reinstate their refugee claims, they submitted an affidavit in which the principal applicant stated, inter alia, that her child became ill again for approximately two weeks immediately prior to the date the PIFs were due.
[15] The applicants submitted that the Board made a negative credibility finding when it stated that "the issue of the minor applicant was not raised at the PABA hearing as it ought to have been if it was a factor which contributed to the late filing. No medical report has been filed with this application in support of that allegation".
[16] The Board did not accept the principal applicant's sworn and uncontradicted evidence as to her child's illness and that it was a substantive reason for her failure to file the PIFs on time. The applicants submitted that the Board did not comply with the CRDD [sic] Rules, the principles of natural justice or the Canadian Charter of Rights and Freedoms being Part I of the Constitution Act, 1982 (the Constitution), Schedule B of the Canada Act, 1982, (U.K.) 1982, c. 11 (the "Charter") when it doubted the principal applicant's undisputed sworn evidence and refused the applicants' motion to reopen without providing the applicants with an opportunity to even address the Board's concerns.
[17] The applicants submitted that the Board breached the principles of fundamental justice when it failed to provide the applicants an opportunity to address any credibility concerns the Board had. The applicants submitted that credibility only became an issue once written reasons were received. The implication by the Board is that it did not believe the applicants since no medical report was produced at the motion to reopen. As a result, counsel for the applicants had no opportunity to even address the Board's concerns.
[18] The applicants submitted that the Board breached the CRDD Rules and the principles of fundamental justice when it failed to hold a hearing with respect to credibility concerns made in the absence of an oral hearing.
[19] The applicants submitted that in keeping with Singh v.Canada (Minister of Employment and Immigration) (1985) 17 D.L.R. (4th) 422 the Board's refusal to reinstate the applicants' refugee claims was to deprive them of their right to an oral hearing under section 7 of the Charter, supra.
Respondent's Submissions
[20] The respondent submitted that the applicants provided no evidence before the Board or before this Court to demonstrate a breach of procedural fairness in the abandonment decision.
[21] The respondent submitted that no evidence was placed before the Board at the abandonment hearing about the child's illness. The applicants' counsel also made post-hearing written submissions. Counsel noted that the delay in completing and submitting the PIF was entirely due to the applicants' pending application for legal aid and which had subsequently been refused. Counsel noted that the applicants had launched an appeal of this refusal. At no time did the principal applicant, either personally or through her counsel, mention her child's illness.
[22] The respondent submitted that the applicants did not seek judicial review of the June 26, 2003 decision to declare their claims abandoned, but subsequently filed an application to reopen the abandoned claims. This application is done pursuant to Rule 44 of the RPD Rules, supra and is done in writing, unless the party with reasonable effort could not have made such an application.
[23] In the applicants' written submissions in support of the application to reopen, the applicants mentioned an additional reason for providing the PIFs outside of the time limit, namely, that the minor applicant had been ill during the material time.
[24] The Board considered that application, including counsel's submissions, the principal applicant's affidavit and the tribunal record. The Board did not find that there had been a breach of natural justice in the decision to declare the applicants' refugee claims abandoned.
[25] The respondent submitted that in order to be successful in seeking judicial review of the Board's refusal to reopen their refugee claims, the applicants must demonstrate that the Refugee Division breached the rules of natural justice or procedural fairness when it declared their claims to have been abandoned.
[26] The respondent submitted that the applicants' argument that the Board erred by failing to accept the principal applicant's affidavit evidence regarding her child's illness is misplaced. The credibility of the applicants was not an issue at the reopening stage. While the principal applicant mentioned the legal aid problems, she failed to mention her child's illness at the abandonment stage as an additional reason for not submitting the PIFs within the required time frame. If the principal applicant, who was represented by legal counsel throughout these proceedings failed to mention this reason, the Board cannot be faulted at the reopening stage. This evidence might have been relevant at the abandonment hearing itself but the decision to declare the applicants' claims abandoned is not the subject of this judicial review application. Nor is an application to reopen an abandoned claim an appeal of the abandonment decision.
[27] The respondent submitted that once a claim is declared abandoned, the appropriate test for determining whether a claim should be reopened is whether or not there was a failure to observe a principle of natural justice at the abandonment hearing. The applicants have failed to show that on the information provided to the Board on the application to reopen, it was not open to him to reach the conclusion he did, that is, there had been a breach of natural justice during the abandonment proceedings.
[28] The respondent submitted that the applicants were aware of the obligation to file completed PIF forms; given the opportunity to retain legal counsel; received notice dated May 28, 2003 of a show cause hearing; were given the opportunity with counsel on June 20, 2003 to make representations on why their claims should not be declared abandoned and took advantage of the opportunity to do so.
Relevant Statutory Provisions
[29] Rule 55 of the RPD Rules, supra provides that refugee claimants may file an application to reopen a refugee claim that has been declared abandoned as follows:
|
55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned.
(2) The application must be made under rule 44.
(3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister. |
55. (1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement.
(2) La demande est faite selon la règle 44.
(3) Si la demande est faite par le demandeur d'asile, celui-ci y indique ses coordonnées et en transmet une copie au ministre. |
|
(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. |
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle. |
Analysis and Decision
[30] As the matter involves a question of natural justice and procedural fairness the applicable standard of review is correctness.
[31] The applicants' refugee claims were declared abandoned on June 20, 2003. The abandonment decision was not the subject of a judicial review. At the abandonment hearing, the applicants stated that they failed to have the PIFs filed within 28 days because of legal aid delays. No evidence about the principal applicant's child's illness was placed before the abandonment hearing.
[32] The applicants then made an application in writing to reopen the hearing pursuant to Rule 55 of the RPD Rules, supra. For this application, the applicants gave two reasons for not having filed the PIFs in time. First, the delay in obtaining legal aid and second, the illness of the principal applicant's child. The application was denied on the basis there was no breach of natural justice.
[33] It is important to note at the outset that, in this case, in order to reopen the applicants' claim, the reopening member must find that there was a breach of natural justice at the abandonment hearing. The applicants argued that the reopening member could consider the new evidence of the child's illness which was not before the abandonment hearing and that the reopening member found that evidence not to be credible without giving the principal applicant an opportunity to address the alleged credibility concern.
[34] I cannot conclude that the reopening member found the evidence concerning the principal applicant's child's illness to be not credible. What the member decided was because this evidence was not before the abandonment member, it cannot be used at the reopening hearing to substantiate a finding of a denial of natural justice at the abandonment hearing. The reopening member found that there had been no denial of natural justice at the abandonment hearing which I believe was a correct decision.
[35] Since there was no finding of non-credibility, the reopening member did not need to give the applicants an opportunity to address any concerns relating to the evidence.
[36] I am of the opinion that the reopening member did not make an error and therefore the applicants' application for judicial review is dismissed.
[37] The respondent did not wish to submit a serious question of general importance for my consideration for certification.
[38] The applicants proposed the following questions for my consideration for certification as serious questions of general importance:
1. Does a breach of natural justice within the meaning of Rule 55 of the Refugee Protection Division Rules require fault on the part of the Board?
2. What is the correct standard of review of a decision made pursuant to Rule 55 of the Refugee Protection Division Rules?
3. Can new evidence be introduced on a motion under Rule 55?
[39] The respondent, in written submissions, opposed certification of the questions.
[40] Having considered the submissions of counsel and having considered the questions submitted for certification, I am not prepared to certify the proposed questions as serious questions of general importance as I do not consider the questions to be questions that transcend the interests of the parties to this application, nor do the questions contemplate issues of broad significance.
ORDER
IT IS ORDERED that:
1. The application for judicial review is dismissed.
2. No serious question of general importance will be certified.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6604-03
STYLE OF CAUSE: ANGELEEN BASI DIRAVIAM
MANASEH JEFFREY BASIL DIRAVIAM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 7, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
APPEARANCES BY:
Michael F. Battista
FOR THE APPLICANTS
Matina Karvellas
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Watson Jordan Battista
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041021
Docket: IMM-6604-03
BETWEEN:
ANGELEEN BASI DIRAVIAM
MANASEH JEFFREY BASIL DIRAVIAM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER