Date: 20000824
Docket: IMM-5070-99
Between:
ARIF MAJEED
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The plaintiff is seeking judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") signed on October 5, 1999, which concluded pursuant to s. 69.1(6) of the Immigration Act, R.S.C. 1985, c. I-2, that his claim had been abandoned as of September 24, 1999.
[2] It will be necessary to set out the relevant facts of this case, in view of the procedural confusion resulting from them.
[3] The plaintiff arrived in Canada on May 13, 1999, claimed refugee status at the border at Lacolle in Quebec and immediately went to Calgary, Alberta on the same day. On May 21, 1999 counsel for the plaintiff, Mr. Mangat, told the panel that his client had moved to Calgary and intended to ask that his case be transferred there as soon as he had filed his Personal Information Form (PIF).1 On June 10 following, Mr. Mangat filed the plaintiff's PIF and as contemplated asked that his client's case be transferred.2
[4] On June 11, 1999 Board member Ludmila Pergat gave a negative decision,3 refusing to allow the plaintiff's case to be transferred from Montréal to Calgary. The member gave reasons in support of her decision4 but in the document in which the Board transmitted this decision the reasons were not included.5 Concluding that no reasons had been given in support of the decision and that it was inequitable, counsel for the plaintiff in a letter dated June 22, 1999 set out reasons justifying a change of venue of the hearing and requested that the decision be reconsidered.6 On June 29, 1999 Ms. Pergat maintained her refusal because of the delay that would result from the transfer.7
[5] On July 16, 1999, following a notice of hearing dated July 5, 1999 inviting the plaintiff to appear at a hearing set down for July 22, 1999, counsel for the plaintiff again asked the panel to transfer his client's case to Calgary for that date.8 Counsel justified his application for an adjournment on the ground that he had not received the notice of hearing dated July 5, 1999 and the short time left for him before the hearing was to take place did not allow him to prepare adequately. On July 20, 1999 Ms. Pergat once again refused to transfer the case, but without ruling on the application for an adjournment.9 On the day of the hearing counsel for the plaintiff and his client were absent.
[6] On August 9, 1999 the panel sent the plaintiff a notice of summons pursuant to s. 69.1(6)(c) of the Act,10 to a hearing set down for September 10, 1999, to determine whether his claim had been abandoned.10 On August 19, 1999 Mr. Mangat filed documents in support of his client's claim. On September 1, 1999 Mr. Mangat asked the panel for an adjournment on the ground that his client could not obtain an air ticket to Montréal.10 On September 8, 1999 a new notice of summons was sent to the plaintiff to attend a hearing set down for September 24, 1999.10
[7] On September 24 the plaintiff and his counsel appeared before the panel to explain the circumstances and the reasons they were unable to attend the hearing of July 22, 1999, and said that they were also ready to proceed. Despite their explanations, the panel concluded that the plaintiff had abandoned his claim.10
[8] As a basis for his application for judicial review, the plaintiff argued first that the Refugee Division made an error in initiating abandonment proceedings on August 9, 1999, whereas on July 16, 1999 Mr. Mangat had made a written application for an adjournment of the hearing set down for the following July 22. The plaintiff further maintained that the panel erred in concluding that he had abandoned his claim when he appeared with his counsel on September 24, 1999 and both were ready to proceed.
[9] The Court cannot accept the second argument made by the plaintiff, namely that he was ready to proceed, as the panel had first to analyse the reasons for his absence at the prior hearing. In Ghassan v. M.E.I., IMM-2843-93, I have already ruled that the Refugee Division can only proceed to consider a claimant's claim after giving him an opportunity to explain the reasons for his absence and finding these to have been valid.
[10] However, the first argument made by the plaintiff in my opinion justifies the Court in allowing this application for judicial review. The application for an adjournment made by counsel for the plaintiff on July 16, 1999 with respect to the hearing set down for July 22 at least merited consideration. It was simply ignored. Section 13(1)10 of the Refugee Division Rules states that an application for an adjournment may be made before the hearing begins. Section 13(4) even indicates what the Refugee Division must consider in determining whether it should be allowed. In the case at bar, at least paras. (a), (c), (f), (g), (h) and (i) should be considered.
[11] In my opinion, there is another reason justifying intervention by this Court. The hearing of September 24, 1999 was intended to provide the plaintiff with an opportunity of explaining why he had failed to prosecute his claim at the hearing on July 22, 1999, and why the Refugee Division should not conclude that his claim had been abandoned. At that time, the plaintiff gave three reasons10 which in his opinion justified his absence from the hearing on July 22, 1999 and indicated his readiness to proceed with his claim.10 Unaccountably, the panel considered none of the reasons given by the plaintiff10 and did not take into account the fact that he was ready to proceed. The panel instead undertook to explain why the applications for changes of venue had been denied,10 whereas even the refugee claim officer, most tactfully, explained to the panel the irregularity that could result from late receipt of the notice of hearing, and especially from the Panel's failing to rule on the application for an adjournment.
[12] In short, the Court considers that the Refugee Division concluded that the plaintiff had abandoned his claim without taking into account the evidence before it. This decision was unreasonable and must be quashed.
[13] The following order must accordingly be made. There is no basis in the case at bar for certifying a serious question of general importance.
ORDER
The decision by the Refugee Division on September 24, 1999 is quashed and the matter referred back to the Immigration and Refugee Board for a panel of different members to consider the application for an adjournment, and if necessary, in view of the reasons alleged by the plaintiff for not appearing on July 22, 1999, to conclude whether his claim for refugee status has been abandoned.
PIERRE DENAULT
Judge
Ottawa, Ontario
August 24, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-5070-99
STYLE OF CAUSE: ARIF MAJEED
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 14, 2000
REASONS FOR ORDER AND ORDER BY: DENAULT J.
DATED: AUGUST 24, 2000
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Panel's Record (P.R.), p. 60.
4 [TRANSLATION] "Pursuant to Refugee Division rule 12(3), your request for a change of venue is denied. The change would result in a delay in scheduling the hearing, which is contrary to the Refugee Division's duty to ensure that claims are dealt with expeditiously."
7 P.R., p. 47 - In her decision the member mentioned that the hearing of the case had already been scheduled, whereas it was not scheduled until July 5, 1999 (P.R., p. 44).
0. 69.1(6) - Where a person who claims to be a Convention refugee
. . . . .
Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.(Error! Main Document Only.) in the opinion of the Division, is otherwise in default in the prosecution of the claim, the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned . . .
0. 13.(1) Before the commencement of a hearing, a party may apply in accordance with rule 27 to the Refugee Division to have the hearing postponed. . . . (4) The Refugee Division, in determining whether a hearing shall be postponed, or in determining pursuant to subsection 69(6) of the Act whether an adjournment of a hearing would unreasonably impede the proceeding, may take into consideration, where applicable, (a) the efforts made by the parties to proceed expeditiously; (b) the nature and complexity of the issues relevant to the proceeding; (c) the nature of the evidence to be presented, and the likelihood of causing an injustice to any party by proceeding in the absence of the evidence; (d) counsel's knowledge of, and experience with, similar proceedings; (e) the amount of time already afforded the parties for preparation of the case; (f) the efforts made by the parties to be present at the hearing; (g) the efforts made by the parties to make an application for a postponement or adjournment of the hearing at the earliest opportunity; (h) the number of, and reasons for, any previous postponements or adjournments granted; (i) whether the hearing was set peremptorily; and (j) any other relevant facts.
0. P.R., p. 432 - ". . . I did not receive letter . . . I did not have enough money . . . I was not able to get seat by plane . . .".
0. In its decision the Refugee Division wrote this: "You and your counsel appeared at that hearing but did not show [sic ] reason why the Refugee Division should not declare the claim to have been abandoned." - P.R., p. 1.