Toronto, Ontario, August 15, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
SAKINEH TAJADODI and FARGOL NOWGHANI BEHAMBARI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated April 28, 2004 (oral decision) and August 30, 2004 (written reasons), in which Sakineh Tajadodi (the applicant) and Fargol Nowghani Behambari (her daughter, collectively the applicants) were determined to have abandoned their claim for refugee protection (the claim).
FACTS
[2] The applicant and her daughter made a claim for refugee protection on March 12, 2004. Two days later, they were provided their Personal Information Forms (PIF) in person, to be completed and returned within 28 days.
[3] The PIFs were not returned in time and by notice dated April 16, 2004, the Board advised the applicants that a hearing would take place on April 28, 2004 to give them an opportunity to explain why their claims should not be deemed abandoned.
[4] However, the PIFs were then received by the Board on April 23, 2004, ten days after the deadline. A request for a ten day extension accompanied the PIFs, but that request was denied by the Board as it did not address the applicants' efforts to complete their PIFs on time.
[5] The applicants provided their submissions on April 28th, 2004, but the Board determined that sufficient reasons were not given and that their claim should therefore be deemed abandoned.
ISSUES
[6] Did the Board err in applying the test of "exceptional circumstances" in determining whether to grant an extension of time for filing the PIFs and in determining whether the claims should be deemed abandoned?
ANALYSIS
[7] When establishing a claim for refugee protection, the applicants must provide their PIFs within 28 days of receiving the forms, as per subsection 6(1) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules):
6 . (1) The claimant must provide to the Division the original and two copies of the completed Personal Information Form by one of the means, other than fax or electronic mail, described in rule 33. The completed forms must be received by the Division no later than 28 days after the claimant received the form.
6. (1) Le demandeur d'asile transmet l'original et deux copies du formulaire sur les renseignements personnels rempli à la Section par un des moyens prévus à la règle 33, à l'exception du courrier électronique et du télécopieur. Les documents doivent être reçus par la Section au plus tard vingt-huit jours suivant la date à laquelle le demandeur d'asile reçoit le formulaire.
[8] In this case, the day before the end of the 28-day deadline, counsel for the applicant sent a letter to the Board requesting an extension of time. That extension was denied, and the applicants were convened to an abandonment hearing on April 28, 2004. At that hearing, the Board member firstly mentioned that the standard of "exceptional circumstances" for considering a request for an extension of time to file a PIF had not been met and then went on to adopt that same standard in determining the outcome of the abandonment hearing:
The panel notes that the Chairperson's Guideline 5 set out the standards of "exceptional circumstances" for considering a request for extension of time to file a PIF. Paragraph 8 and 9 of Guideline 5, which deal with the abandonment hearing itself, do not refer to "exceptional circumstances". However, that test must be imported by implication, as, otherwise, the words "exceptional circumstances" have no meaning with respect to the time limit.
(Pages 4 and 5 of the decision of the Board dated August 30, 2004)
[9] In applying the test of "exceptional circumstances" to the abandonment hearing, the Board erred in law. The Guidelines do not mention that the standard applicable is the one used by the Board. To the contrary, paragraph 9 of the Guidelines indicates that there are many factors to be used and that for example, one of them is the readiness of the applicants to proceed:
9. When a claimant comes to an abandonment hearing and provides the PIF at the hearing, this is not, in and of itself, a basis for allowing the claim to proceed. The readiness of the claimant to proceed is only one of the factors that must be considered in deciding whether the claim should be declared abandoned. The RPD will consider the explanations given by the claimant and any other relevant information.9 [my emphasis]
[10] Furthermore, subsection 58(3) of the Rules indicates the factors to be considered before declaring a refugee claim abandoned:
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.
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.
[11] The fact that no exceptional circumstances existed to warrant an extension of time to file the PIFs is but one of the relevant factors to be considered; it is not the decisive test to be applied in declaring a claim abandoned.
[12] The test to be applied was further clarified in Ahamad v. Canada(Minister of Citizenship and Immigration), [2000] 3 F.C. 109, [2000] F.C.J. No. 289 at paragraph 32:
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; (...)
[13] In the present case, the Board referred to the test for an extension of time as being that of exceptional circumstances. This case however, was an abandonment case where the inquiry must be directed at the true intention and actions of the claimant in order to conclude that the claim is abandoned. It was not a request of time under Rule 6(2), which in that case, would justify the application of Guideline 5 and the exceptional circumstances test.
[14] Although there are a few cases of this court dealing with the exact issue as the one at hand, the respondent submits that they are not applicable because Guideline 5 only came into effect on October 30, 2003, whereas the Board decisions in those cases were
rendered previous to that date. I do not accept this argument, seeing as to how Guideline 5 sets out the applicable test for extension of time requests, not for abandonment hearings. I therefore make mention of Ahmed v. Canada (Minister of Citizenship and Immigration), 2004 FC 357, [2004] F.C.J. No. 408 at paragraph 5, where in a case very similar to the one at hand, my colleague Justice O'Reilly mentions:
The Rules set out factors that the Board must consider. I have no reason to question whether the Board considered the appropriate factors here. However, from the passage quoted above, it appears that the Board expected Mr. Ahmed to show "exceptional circumstances" before allowing his refugee claim to proceed. As I read the governing rule, the Board must consider the applicant's explanation, whether he has filed his paper work, whether he is ready to proceed, and "any other relevant information". No doubt, the Board will only permit a claim to go forward if the applicant's explanation for the delay is reasonable. I do not, however, see any basis for a requirement that the applicant show "exceptional circumstances". In my view, this standard exceeds that which the Rules provide.
[15] I would also mention the case of Rahman v. Canada(Minister of Citizenship and
Immigration), 2005 FC 430, [2005] F.C.J. No. 534, in which my colleague Justice Dawson stated at paragraph 2:
Prior jurisprudence of this Court is to the effect that requiring an applicant to show "exceptional circumstances" in order to allow a claim to proceed (and not be declared abandoned) is an error in law because such a test exceeds the standard provided in the relevant rule. See: Ahmed v. Canada(Minister of Citizenship and Immigration)(2004), 248 F.T.R. 157 and Anjum v. Canada(Minister of Citizenship and Immigration) (2004), 250 F.T.R. 311.
[16] By importing into the abandonment hearing the test of exceptional circumstances, the Board committed an error of law. As such, the standard of review is that of correctness and this is a case in which my intervention is justified.
[17] Counsel for the Applicant suggest a question for certification:
Does the board err in law where it requires a claimant to show "exceptional circumstances" in order to allow a claim to proceed and not declare it abandoned?
[18] Counsel for the Respondent suggests that this question should not be certified.
[19] In my view the Court has already addressed this issue many times and it is clear that the test of "exceptional circumstances" applies for considering a request for an extension of time to file a PIF, and those "exceptional circumstances", if they exist are among the relevant factors to be considered, but not the decisive test to be applied in declaring a claim abandoned. For those reasons this question is not of general importance and will not be certified.
ORDER
THIS COURT ORDERS that:
· The application for judicial review be granted.
· The decision of the Board determining that the applicants' claim for refugee protection is abandoned be quashed.
· The applicants' refugee claim be remitted to the Board for determination on its merits.
· No question for certification.
"Pierre Blais"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4356-04
STYLE OF CAUSE: SAKINEH TAJADODI and FARGOL NOWGHANI BEHAMBARI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 15, 2005
APPEARANCES:
SOLICITORS OF RECORD:
Jack C. Martin
Barrister & Solicitor
Toronto, Ontario FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada