Date: 19990218
Docket: IMM-5559-97
BETWEEN:
NING OU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
McGILLIS J.
INTRODUCTION
[1] The applicant has challenged by way of judicial review the decision of the Immigration and Refugee Board ("Board") that he had abandoned his claim to Convention Refugee status.
FACTS
[2] On December 8, 1996, the applicant arrived in Canada from China. He made a claim to Convention refugee status. On July 18, 1997, he notified the Board of his address and telephone number in Toronto, Ontario. On that same date, he was informed that his claim would be referred to the Board for determination, and that he would be required to appear before the Board in September 1997.
[3] On September 18, 1997, the Board sent a Notice to Appear for Conference to the applicant at his address, requiring him to appear for a conference on October 8, 1997. The Notice stated, among other things, as follows:
| If you fail to appear at the above time and place, the Refugee Division may, after giving you a reasonable opportunity to be heard, declare your claim to be abandoned. |
[4] On September 25, 1997, the applicant personally delivered to the Board's registry a letter indicating that he wished to delay his hearing date in order to retain counsel.
[5] On October 2, 1997, a Board employee attempted to telephone the applicant in order to advise him that it was not sufficient for him to deliver a letter requesting a delay, and that he was required to attend in person the conference with the Board members. However, the employee was told that there was "no such person" at that telephone number.
[6] On October 30, 1997, the Board sent to the applicant a Notice to Appear for Abandonment of a Convention Refugee Claim. The applicant immediately retained counsel .
[7] On December 1, 1997, the applicant attended the abandonment hearing with his counsel.
[8] During the abandonment hearing, counsel asked the presiding members to provide him with the telephone number called by the Board employee, and confirmed that it was indeed the applicant's correct number. Counsel observed that he called the applicant at that number "all the time", and that it was "strange". Counsel did not make any further submissions.
[9] In deciding that the applicant had abandoned his claim to Convention refugee status, the Board stated as follows:
| On the record, the [applicant] was served with a Notice to Appear; the [applicant] failed to appear; an attempt was made to contact the [applicant]. The telephone number the [applicant] ]provided was phoned; the [applicant]was not available at that telephone number. The record shows no such person at that telephone number, and so, as the rules are very clear on this, it is up to claimants to make their cases, to be present with or without counsel. |
| The Board is very understanding. Claimants sometimes come without counsel or representation. In this case it seems to me the [applicant] made some effort, but on the other hand, that did not remove the responsibility from him of being present on the date of the hearing. |
[10] On December 31, 1997, the applicant filed an application for leave and for judicial review of the Board's decision that he had abandoned his claim. On November 26, 1998, the application for leave was granted.
[11] On December 22, 1998, the applicant filed a supplementary affidavit from his landlord's daughter, Cui Ling Chen, a student who works part-time and is often not home. In her affidavit, Ms. Chen affirmed that she received a telephone call, on October 2, 1997, from "...a lady who said she was from the Canada Immigration offices". Ms. Chen initially assumed that the call related to her family's citizenship applications. However, she did not recognize the name of the person to whom the immigration official asked to speak. As a result, she believed that it was a wrong number. Furthermore, at that time, she did not even know the applicant's name. Her parents had a number of tenants in the house, and they all had their own telephones, except for the applicant. However, at the time, she did not know that the applicant did not have a telephone or that he had given her parent's telephone number to the Board. Indeed, it did not even "cross her mind" that it was a call for a tenant at the house. Ms. Chen did not know the applicant's name until recently, when he told her of his problem.
[12] Counsel for the respondent did not cross-examine Ms. Chen on her affidavit.
ISSUE
[13] The principal question to be determined is whether the affidavit of Ms. Chen is relevant and admissible on the review of the Board's decision.
ANALYSIS
[14] During the course of her submissions at the hearing, counsel for the respondent submitted that the Board's discretionary decision on the question of abandonment was reasonably open to it on the basis of the evidence that was before it. She further submitted that the Board's discretionary decision was made in good faith, in accordance with the principles of natural justice, and on the basis of relevant considerations. I agree with those submissions. However, on the application for judicial review, the applicant has tendered fresh evidence from a third party to establish that one of the significant factors considered by the Board at the abandonment hearing was inaccurate. As a result, the relevance and admissibility of that evidence must be considered.
[15] In determining whether evidence that was not before the Board at the time of the making of its decision on the question of abandonment is relevant and admissible in subsequent judicial review proceedings, assistance may obtained from the obiter dicta comments of Strayer J. (as he then was) in Gill v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1152 (T.D.). In brief reasons issued in dismissing an application for leave, Strayer J. stated as follows:
| Not only was the Panel fully justified in treating the claim as abandoned on the basis of the information before it on June 17, 1993, but the claimant has provided no information as to any reasonable explanation he might have made to the Panel at that time with respect to his absence from the hearing scheduled for May 20th. There would be no point, even if judicial review were allowed, in sending the matter back to a Panel because the claimant has not demonstrated by evidence that could be put before the same or a new Panel to justify his absence from the first hearing. |
[16] In his analysis, Strayer J. acknowledged that an applicant could tender fresh evidence on an application for judicial review in an attempt to justify his absence from a Board hearing. In my opinion, the approach taken by Strayer J. is compelling, particularly given that a finding of abandonment precludes a consideration of a Convention refugee claim on its merits. I have therefore concluded, on the basis of the unusual circumstances of the present case, that the evidence of Ms. Chen is admissible on the application for judicial review. I have further concluded that her evidence is highly relevant in that it arguably demonstrates that the Board relied on erroneous information in making its decision on the question of abandonment, namely that the applicant had provided the wrong telephone number to the Board.
[17] In arriving at my decision, I have considered the well-established proposition in the jurisprudence that evidence not considered by the Board at a hearing is irrelevant and inadmissible on an application for judicial review. [See for example Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.); Franz v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 79]. However, those cases are distinguishable from the circumstances of the case at bar in that they dealt with situations where the Board had analyzed evidence and conducted a hearing of the claim on its merits. In the present case, the Board considered only the question of abandonment.
[18] Given the uncontested evidence adduced by the applicant concerning the erroneous information transmitted by Ms. Chen to the immigration official, I have concluded that it would be in the interests of justice for the Board to consider that evidence on a new abandonment hearing in order to determine whether the applicant has justified his failure to attend the conference.
DECISION
[19] The application for judicial review is allowed. The decision of the Immigration and Refugee Board is quashed and the matter is remitted to a differently constituted Board for rehearing and redetermination of the question of the abandonment of the claim. Counsel agreed at the hearing that the case raises no serious question of general importance.
"D. McGillis"
Judge
Toronto, Ontario
February 18, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5559-97
| STYLE OF CAUSE: NING OU |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, FEBRUARY 17, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: McGILLIS J.
DATED: THURSDAY, FEBRUARY 18, 1999
| APPEARANCES: Mr. Rod Byrnes |
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD: Byrnes, Chan & Associates
| 215-222 Spadina Avenue |
| Toronto, Ontario |
| M5T 3B3 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990218
Docket: IMM-5559-97
Between:
| NING OU |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT