Date: 20041027
Docket: IMM-3782-03
Citation: 2004 FC 1510
BETWEEN:
ENIKO PAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board declaring the Applicant's claim to Convention refugee status to have been abandoned. Notice of the decision is dated the 31st of March, 2003.
[2] The Applicant is a citizen of Hungary. She arrived in Canada on the 6th of March, 2001 and stated her intention to make a Convention refugee claim the same day.
[3] The hearing of the Applicant's claim to Convention refugee status was fixed for the 6th of March, 2003. Both the Applicant and her counsel, not a lawyer, were advised of the date, time and place of the hearing. The Applicant did not appear for her hearing but her "counsel" did. Counsel advised the presiding member that the Applicant had been in hospital overnight, had been released on the morning of the day fixed for the hearing and had to return to hospital the following day. The presiding member advised counsel that a further hearing would be scheduled for the 17th of March, 2003 to provide the Applicant an opportunity to show cause why her claim to Convention refugee status should not be declared abandoned. Counsel was advised that, at the March 17th hearing, the Applicant should not only appear but should bring with her "medical proof of inability to attend" on the 6th of March.
[4] Once again on the 17th of March, the Applicant did not appear before the RPD but her "counsel" did. Once again counsel advised the RPD that the Applicant's absence was due to ill health. Some evidence to support the Applicant's second failure to appear was provided, albeit that the RPD found such evidence to be less than satisfactory. No evidence of the Applicant's inability to attend the March 6th hearing was provided.
[5] The following are excerpts from a transcript of the hearing on the 17th of March:
PRESIDING MEMBER: ... Is there any reason, Counsel, that I should not declare this claim abandoned? Other than to just feel good and to feel nice and do nice things?
COUNSEL: I don't know. I think is enough reason not to declare the claim abandoned. I don't have any other reason, only in interest of claimant.
...
PRESIDING MEMBER: ... At the last hearing instructions, specific instructions were passed through you to the claimant via her friend that she is to produce medical proof of her inability to attend this [the March 6th] hearing. Not that she was sick, but she was incapacitated and unable to attend the hearing. I don't see that proof in front of me to begin with.
What I do see in front of me is a pair of medical chits similar to prescription forms. [The evidence relating to the Applicant's failure to attend on the 17th of March] ... I'm going to make the determination, [counsel], that sufficient cause has not been shown why the claimant was not able to attend the March 6th hearing and I'm going to declare this claim abandoned on behalf of the Immigration and Refugee Board of Canada. ...[1]
[6] As earlier indicated, notice of the abandonment decision was provided under date of the 31st March, 2003. Apparently that notice only came to the Applicant's attention on the 12th of May, 2003.
[7] Following the hearing on the 17th of March, 2003, the Applicant sought to have her application for Convention refugee status reopened. By notice of decision dated the 30th of April, 2003, that application was dismissed. In brief paragraphs entitled "Reasons/Comments", the following appears:
1. Contrary to the applicant's claim, no medical note was presented on her behalf at the hearing of March 6, 2003.
2. The scheduling of the Show Cause/Abandonment hearing was done following the commenced abandonment process in the presence of the applicant's counsel, which was followed up by a Notice to Appear sent to both applicant and counsel. If the date indicated on the Notice was problematic for the claimant and counsel, it was open to them to apply for a change of time and date of hearing. This was not done. ...
3. The additional medical information attached to the application, apart from being silent regarding the applicant's ability to attend the IRB on march [sic] 17, 2003, is also silent regarding the applicant's absence from the hearing on March 6, 2003 which gave rise to the abandonment proceeding in the first place.
4. In my opinion, there has been no breach of natural justice in declaring the applicant's claim to have been abandoned.[2]
[8] Judicial review of the dismissal of the Applicant's application to reopen was not sought; instead, the Applicant brought this application to judicially review the abandonment decision itself. Before this Court, counsel for the Applicant urged a wide range of reviewable errors both in the process leading to the abandonment decision and on the face of the decision itself.
[9] In Zylinska v. Canada (Minister of Citizenship and Immigration)[3], also a judicial review of an abandonment decision, my colleague Justice O'Reilly wrote at paragraphs [4] and [5] of his reasons:
[4] I can overturn the Board's decision only if I find that it [the RPD's decision] was unreasonable, in the sense that it was unjustified based on the evidence.
[5] Before declaring a claim to have been abandoned, the Board must consider the claimant's explanation and the surrounding circumstances, including whether the person is ready to proceed with his or her claim... . [citation omitted]
[10] In Ahamad v. Canada (Minister of Citizenship and Immigration)[4], also a judicial review of an abandonment decision, my colleague Justice Lemieux wrote at paragraph [37]:
An examination of the reasons of the CRDD in this case clearly shows its members did not ask themselves the right question, namely, whether in all of the circumstances and taking into account all relevant facts, did the applicant's behaviour evidence, in clear terms, a wish or intention not to proceed with his claim. ...
[11] I do not read Justice Lemieux's words as placing any onus on the RPD to seek out the evidence as to why a claim should not be abandoned; the onus lies with the Applicant to provide that evidence. Once the Applicant has done so, the duty of the RPD is to fully consider all of that evidence.
[12] On the facts of this matter, the Applicant simply failed to meet her onus to provide satisfactory evidence in support of her failure to appear before the RPD on both March 6th and March 17th. Nor did she provide her "counsel" with such evidence. In the circumstances, by reference to the words of Justice Lemieux, I am satisfied that the Applicant's behaviour simply failed to evidence, in clear terms, a wish or intention to proceed with her claim. Rather, precisely the opposite is true. The Applicant's behaviour evidenced, in clear terms, a wish or intention not to proceed with her claim. Such evidence does not flow from the absence of the Applicant from the hearings on March 6th and March 17th, but rather from her failure to provide credible evidence that, for medical or any other reasons, she was simply unable to attend such hearings. Her behaviour continued to evidence such disinterest when, without explanation, she failed to provide her own affidavit in support of this application for judicial review.
[13] For the foregoing reasons, I find no reviewable error on the part of the RPD in arriving at its abandonment decision. This application for judicial review will be dismissed. Upon being advised of my decision at the close of the hearing, neither counsel recommended certification of a question. I am satisfied that no serious issue of general importance arises out of the facts of this matter. In the result, no question will be certified.
[14] This application for judicial review was first scheduled for hearing on the 6th of July, 2004. When the Court convened on that date, issues were raised that counsel were unprepared to argue. In the result, the hearing was adjourned to a date to be fixed, that date eventually being the 18th of October, 2004. Approximately two (2) weeks before the date fixed for resumption of the hearing, counsel for the Applicant provided to the Court a supplementary affidavit, once again not sworn by the Applicant, and a further Memorandum of Argument. After submissions from counsel at the opening of the hearing, I determined that the late-received material should not be filed and advised counsel that it would not be considered at hearing. My order herein will confirm that such material should not be filed in the Registry of the Court but rather should be returned to counsel for the Applicant.
__________________________________
J. F.C
Ottawa, Ontario
October 27, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3782-03
STYLE OF CAUSE: ENIKO PAL
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: OCTOBER 19, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Gibson
DATED: October 27, 2004
APPEARANCES BY: George J. Kubes
406-360 Bloor St. W
Toronto, ON M5S 1X1 For the Applicant
Jamie Todd DEPARTMENT OF JUSTICE 130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6 For the Respondent
SOLICITORS OF RECORD: Jozep Sarkozi For the Applicant
29 Gervais Drive -
Suite 200, Toronto, Ontario
Morris Rosenberg
Deputy Attorney General of Canada
Per: Urszula Kaczmarczyk
Toronto, Ontario For the Respondent