Date: 20050615
Docket: IMM-5302-04
Citation: 2005 FC 841
BETWEEN:
FREDDY EDER CAMPOS GUTIERREZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
INTRODUCTION
[1] These reasons follow the hearing of a judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD denied the Applicant's application to have his claim for Convention refugee protection reopened after it had been declared abandoned. The date of the decision under review is the 26th of May, 2004.
[2] In response to a request for reasons for the decision under review, the Immigration and Refugee Board provided the following:
Reasons/Comments:
PIF [the Applicant's Personal Information Form] was due on 22 Nov 03 and [declared] abandoned on 27 Nov 03. First address was received on 24 Dec 03 and PIF received Jan/04. Claimant had an obligation to inform Board of address and file PIF within 28 days. He failed to do both. There is nothing in the filed materials to indicate that there was denial of natural justice when the Board abandoned the claim.
BACKGROUND
[3] The Applicant, a citizen of Peru, arrived in Canada on the 25th of October, 2003, at which time he was nineteen (19) years of age. He declared his intention to make a Convention refugee claim the same day. He was briefly held in detention. During the period of time that he was in detention, he wrote, by hand and in his native language, his narrative explanation in support of his Convention refugee claim. Before being released from detention, he was given notice of his obligation to provide to the RPD his address here in Canada and his Personal Information Form ("PIF") within a limited period of time. It was not in dispute before the Court that that limited period of time expired on or about the 22nd of November, 2003. By that date, he had neither provided to the RPD his address here in Canada or his PIF. In the result, his claim to Convention refugee status was declared abandoned on the 27th of November, 2003 with no notice to the Applicant.
[4] As earlier noted, the Applicant was nineteen (19) years of age when he arrived here in Canada. He alleges that he had no family or other support here. He further alleges that he had never been away from home "on his own" before. He was taken in by an accommodating stranger who provided him with shelter and some advice.
[5] The mid-to late December holiday season was quickly upon the Applicant and his benefactor. This notwithstanding, on the 24th of December, 2003, the Applicant provided his address in Canada to the RPD. On the 8th of January, 2004, he presented his PIF for filing. It was accepted for filing by the RPD.
[6] By the 23rd of January, 2004, the Applicant had retained counsel to represent him on his Convention refugee claim. On that date, his counsel notified the RPD that she had been retained by the Applicant and that she would keep the RPD informed as to his address.
[7] To the end of January, 2004, and indeed to the day of hearing before this Court, the RPD had not informed the Applicant, either directly or through his counsel, that his Convention refugee claim had been declared abandoned.
[8] The Applicant, through his counsel, applied to the Respondent for a work permit. In early May of 2004, the Respondent, not the RPD, advised the Applicant that his Convention refugee claim had been declared abandoned and that therefore he had no status in Canada and was not entitled to a work permit.
[9] The Applicant's application to reopen his Convention refugee claim followed, leading to the decision here under review.
RELEVANT LEGISLATIVE AND REGULATORY PROVISIONS
[10] Subsection 168(1) of the Immigration and Refugee Protection Act[1] reads as follows:
| 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. [emphasis added].
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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. [je sousligne]. |
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[11] Rule 58(1) of the Refugee Protection Division Rules[2] (the "Rules") provides as follows:
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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:
(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
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information. [emphasis added]
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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 :
(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;
(b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées. [je sousligne]
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At the time the Applicant's Convention refugee claim was declared abandoned, the Respondent had no notice that the Applicant had retained counsel and indeed, he had not.
[12] Rule 61(1) of the Rules requires the RPD to give notice to persons such as the Applicant of a decision such as the abandonment decision here in issue. At the date of the abandonment decision, the RPD could not give notice because it had no address for the Applicant. However, on the 24th of December, 2003, less than a month following the date of the abandonment decision, the RPD was provided with notice of the Applicant's address. This notwithstanding, it was not in dispute before me that the Applicant and, to this date, the Applicant and his counsel, have not been given the notice contemplated by Rule 61(1).
ANALYSIS
[13] As earlier noted, the decision under review, that is to say the decision not to reopen the Applicant's Convention refugee claim, was based on an opinion that there had been no breach or denial of natural justice when the RPD declared the Applicant's claim to be abandoned. The form of the reasons for the decision under review reflects the terms of Rules 55(1) and 55(4). Those Rules read 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. ... |
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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. |
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| ... (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. [emphasis added].
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(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle. |
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[14] Rule 55 has been interpreted to preclude the RPD from reopening a Convention refugee claim that has been declared abandoned in all circumstances other than those in which, by virtue of Rule 55 (4), it must allow an application to reopen. That interpretation is not at issue here. The only matter at issue is whether the RPD erred in determining that there had been no failure to observe a principle of natural justice on the facts of this matter. In this regard, I am satisfied that the RPD committed a reviewable error.
[15] It is beyond question that the RPD had the authority to declare the Applicant's Convention refugee claim abandoned when it did. That being said, the fact that it did not, on that date, have an address for the Applicant so that it could comply with its obligation to give him notice of its abandonment decision did not, I conclude, fully relieve it of its obligation under Rule 61(1) to give notice of its decision.
[16] An abandonment decision has dramatic, potentially even fatal implications, for persons such as the Applicant. The Applicant was, and I repeat, merely nineteen (19) years of age at the relevant time. He was newly arrived in Canada and it was his first time away from home. Presumably, neither English nor French was his first language. He had no family or other established support here in Canada and the Court is prepared to assume, in all of the circumstances, that he was vulnerable and disoriented. Nonetheless, within less than a month of the abandonment decision and less than two (2) months after his arrival in Canada, he provided the RPD with his address.
[17] In response, the RPD chose not to acknowledge the special circumstances of the Applicant, chose not to provide him with notice that his Convention refugee claim had been declared abandoned when he provided his address, and chose not to provide such notice when, a further month later, after the RPD had accepted his PIF for filing, counsel retained by the Applicant communicated with the RPD. In effect, the RPD denied the Applicant, in his special circumstances, an opportunity to attempt to convince the RPD that his claim should not have been abandoned or, alternatively, denied him the opportunity to seek judicial review of the abandonment decision.
[18] In Matondo v. Canada (Minister of Citizenship and Immigration)[3], my colleague Justice Harrington, also in the context of an abandonment decision, wrote at paragraph 18 of his reasons:
Perhaps there are those who have to be reminded that the right to be heard is at the heart of our sense of justice and fairness.
For the principle regarding the right to be heard, Justice Harrington cited substantial authority. The right of an individual to have notice of a decision substantially affecting his or her rights and privileges is at the heart of the right to be heard. I conclude that the obligation of the RPD to give notice to the Applicant of the abandonment decision in respect of his claim was not extinguished by his failure, within a prescribed time, to provide the RPD with an address to which notice could be sent, when all of the factual background to this matter is considered. Critical to that factual background is the fact that the Applicant provided the RPD with an address within less than a month of the date of the abandonment decision, in the particular circumstances of his age and vulnerability at all relevant times.
[19] I am satisfied, once again on the particular facts of this matter, that the RPD failed to fulfill its obligation under its Rule 55(4) to allow the Applicant's application to reopen the abandonment decision affecting him because there was here, on the part of the RPD, a failure to observe a principle of natural justice arising out of the failure to give the Applicant timely notice of the abandonment decision.
[20] That is not to say that there will not be circumstances where failure to give notice of an abandonment decision will not amount to a failure to observe a principle of natural justice. But such circumstances remain to be defined by other fact-situations, that is to say fact-situations different from the one, and less sympathetic than the one, here before the Court.
CONCLUSION
[21] Based upon the foregoing brief analysis, this application for judicial review will be allowed and the decision of the RPD not to reopen the abandonment decision in respect of the Applicant's Convention refugee claim will be set aside and the matter will be remitted to the Immigration and Refugee Board for redetermination.
CERTIFICATION OF A QUESTION
[22] Counsel were advised at the close of the hearing of this application for judicial review would be allowed. When consulted, neither counsel recommended certification of a question. The Court is satisfied that, while the narrow point at issue on this application raises a serious question, it raises that question on very specific facts and thus, it cannot be regarded as a serious question of "general importance". In the circumstances, no question will be certified.
"Frederick E. Gibson"
J.F.C.
Ottawa, Ontario
June 15, 2005
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