Date: 20000517
Docket: IMM-1862-99
Between :
RANJIT SINGH BHULLAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated March 22, 1999 (signed March 23, 1999)1, dismissing an application to reopen the hearing on the abandonment of his refugee claim.
[2] The applicant, a citizen of India, arrived in Canada on July 1, 1998. He was to appear before the Board on October 5, 1998, but was absent during the roll call on that date. An abandonment of claim hearing was scheduled for November 4, 1998. The applicant explained that he was absent on October 5, 1998 because he forgot about the date, was nervous and was looking for a job. The Board declared his claim to have been abandoned.
[3] On November 26, 1998, the Board received an incomplete motion to reopen the hearing. This motion was denied on January 21, 1999 on the grounds that there had been no violation of the rules of natural justice at the abandonment hearing.
[4] A motion to reconsider this decision was submitted on March 1, 1999. In an affidavit attached to this motion, the applicant wrote that he had been advised by his counsel's interpreter to lie about looking for a job. The motion was denied on March 22, 1999.
[5] The Board found that the only question to be determined was whether there had been a breach of natural justice during the abandonment hearing on November 4, 1998. It concluded that negligence or incompetence on the part of counsel does not necessarily constitute a violation of the principles of natural justice on the part of the Board. Therefore, the Board decided to deny the motion.
[6] It is well established that the Board may reopen the hearing of a refugee claim where the initial hearing was conducted in a manner inconsistent with the rules of natural justice (see Longia v. Canada (M.E.I.), [1990] 3 F.C. 288, at page 293 (F.C.A.) and Ojie v. Minister of Citizenship and Immigration (June 19, 1998), IMM-3119-97 (F.C.T.D.)). In Rus v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1998), 143 F.T.R. 316, I applied this principle to an application to reopen a hearing after a decision that a refugee claim had been abandoned, at page 320:
| . . . The instant application does not directly concern the denial of an adjournment on October 3, 1996 on the basis that the applicant was denied natural justice, but the decision of December 5, 1996 dismissing the application to reopen filed by the applicant on November 12, 1996. Thus, to be successful, the applicant must prove that he was denied natural justice at the abandonment hearing itself, namely that of October 28, 1996. In Longia v. Minister of Employment and Immigration, [1990] 3 F.C. 288; 114 N.R. 280 the Federal Court of Appeal noted that the tribunal (the Immigration Appeal Board in that case) had no inherent or continuing jurisdiction to reopen a redetermination hearing of an application for refugee status. The Court of Appeal added the following at page 293: |
| "... Indeed, it is not firmly established, in the jurisprudence of this court, that if the hearing of an application has not been held according to the rules of natural justice, the Board may look at its decision as a nullity and reconsider the matter (see Gill v. Canada (Minister of Employment and Immigration) [[1987] 2 F.C. 425 (C.A.)], Singh [v. Canada (Minister of Employment and Immigration) (1998), 6 Imm.L.R. (2d) 10 (F.C.A.)] and Nabiye [Canada (Minister of Employment and Immigration) v. Nabiye, [1989] 3 F.C. 424 (C.A.)] ...)." |
[7] Here, the applicant does not argue specifically that the rules of natural justice were breached at his abandonment hearing. Instead, he raises the issue of his having lied to the panel at the hearing by claiming that he was looking for a job when he was scheduled to be in Assignment Court. According to the applicant's affidavit, this claim was made on the advice of his counsel's interpreter. In addition, he argues that missing an Assignment Court appearance was not important enough to justify the abandonment decision.
[8] In my opinion, the applicant has not demonstrated that the abandonment hearing was conducted in a manner inconsistent with the rules of natural justice. The panel concluded that the explanation given by the applicant for why he had abandoned his claim was unsatisfactory. I do not think that the applicant's decision, apparently on the advice of his counsel's interpreter, to tell the panel that he was looking for a job, when in fact he already had a job, resulted in his being denied the opportunity of a full and fair hearing. Since there was no breach of natural justice, the decision that the claim was abandoned remains valid.
[9] Moreover, I agree with the respondent that in making its decision not to reopen the hearing, the Board was not obliged to consider the applicant's alleged fear of persecution. In Ressam v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1996), 110 F.T.R. 50, the applicant applied for judicial review of the Board's decision that he had abandoned his refugee claim. At pages 53 and 54 I held that the only issue to be determined at such a hearing is whether the claim has been abandoned:
| [6] I would first point out that when a claimant appears before the Board under s. 69.1(6) of the Act, he is appearing not for the hearing of his claim, but rather to make argument relating to the finding that he had abandoned his claim which he was subject to having made against him. On this point, I am entirely in agreement with the reasoning of my colleague Denault in Ghassan (Daher Ghassan v. Minister of Employment and Immigration (June 22, 1994), IMM-2843-93 (F.C.T.D.)) in which he stated: |
| "Counsel for the applicant considered that the Refugee Division had misunderstood the meaning and scope of s. 69.1(6) of the Act. He argued that according to the very essence of this provision the panel should ascertain whether the person concerned was prepared to proceed with his or her claim. He contended that so long as the person concerned is present and willing to proceed and the record is in order, it is simply not possible to conclude there has been abandonment. |
| "I do not share this view. ... When pursuant to s. 69.1(6)(b) of the Act the Refugee Division gives the person concerned an opportunity to be heard, it is the very purpose of that abandonment hearing to allow the person concerned to explain the reasons why he believes he did not abandon the claim. It is only when the Refugee Division has allowed the claimant to explain his reasons and concluded that they were valid that it may proceed to hear the claim." |
[10] Likewise, the only issue before the Board in this application was whether the applicant was denied natural justice at the abandonment hearing. The merits of his refugee claim were irrelevant.
[11] Finally, the arguments raised by the applicant with respect to the Canadian Charter of Rights and Freedoms and Canada's international human rights obligations are linked to the applicant's deportation and, therefore, are premature.
[12] Consequently, the application for judicial review is dismissed.
[13] Counsel for the applicant proposed the following questions for the purpose of certification:
| 1. Does a decision to declare a claim abandoned because the applicant did not attend Assignment Court, a meeting with an administrative official of the Immigration Refugee Board, violate the rules of natural justice? |
| 2. Is there any relevance for evidence of substantial risk of torture or death or other forms of persecution in a decision on abandonment or reopening of a refugee claim before the Immigration Refugee Board? Is evidence of post-traumatic stress disorder relevant? |
| 3. Should decisions on abandonment or reopening at the Immigration Refugee Board respect the minimal guarantees of international human rights law? |
[14] All the questions appear to be concerned with either decisions to declare a claim abandoned or decisions to reopen a refugee claim, whereas this matter is merely concerned with a decision not to reopen an abandonment hearing. Considering that a question to certify "must also be one that is determinative of the appeal" (Liyanagamage v. Minister of Citizenship and Immigration, 176 N.R. 4, at page 5), this is not a matter for certification.
JUDGE
OTTAWA, ONTARIO
May 17, 2000
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