Date: 20010330
Docket: IMM-947-00
Neutral Citation: 2001 FCT 258
Between :
Hassiba RAKROUK
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Determination Division of the Immigration and Refugee Board (the Board) dated February 9, 2000, in which the Board made a determination of abandonment of the applicant's claim under subsection 69.1(6) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant claimed refugee status the day of her arrival to Canada from Algeria on August 25, 1999. On September 9, 1999, the applicant completed and signed an "Information on Admissibility" Form which was then mailed on September 10, 1999. She made numerous inquiries after that date and finally received the Immigration Kit containing her Personal Information Form (PIF) on December 7 or 10, 1999. While the forms in this Kit were dated November 17, 1999, the post mark on the envelope indicates that the Kit was mailed on December 3, 1999. The Kit included a notice to appear for a role call scheduled for January 4, 2000.
[3] At the date of receipt of the Kit, the applicant did not yet have a lawyer. She was ill and was unable to begin looking until mid-December. The applicant finally did meet with an attorney prior to her date of role call with whom she completed her PIF and reviewed her response to Question 37. She presented herself at the role call on January 4, 2000 and was informed that, according to her file, January 4, 2000 was the last day to file the PIF.
[4] The applicant went directly to her lawyer's office and was told to wait. The latter never arrived. Disenchanted, the applicant began to look for a new attorney with some difficulty. When she contacted the office of her present attorney, Mr. Goldstein, on January 14, 2000, she was given an appointment on January 21, 2000. At that time, she advised Mr. Goldstein that she was under the impression that her previous counsel had obtained an extension of the delay to January 31, 2000. She only discovered otherwise when Mr. Goldstein was informed that the abandonment hearing had already been scheduled. The applicant and her new counsel reviewed and filed her PIF on January 24, 2000. On February 9, 2000, the applicant and her counsel presented themselves at the abandonment hearing.
[5] Following the hearing on the abandonment of the applicant's claim, the Board made the following conclusion: "Vous vous êtes présenté(e) à l'audience, mais vous n'avez pas donné de raisons pour lesquelles la Section du statut de réfugié ne devrait pas conclure à votre désistement." The Board did not provide written reasons. However, the transcript of the hearing reveals that the Board took into account the following considerations in its decision:
- The Board was unable to understand why the applicant, who is a university graduate, testified in such a confused manner with respect to the address at which she lived since the month of August.
- The Board found it unrealistic that the applicant would have received the Kit and not the two letters sent by Immigration advising her to act with diligence in returning the PIF.
- The Board noted that the applicant waited until after January 4, 2000 to start looking for a lawyer. Even if this is incorrect, and that she had started earlier than this, she still did not produce a PIF until January 24, 2000.
[6] Subsection 69.1(6) of the Act (entitled "Abandonment of Claim"), which applies in this matter, reads as follows:
69.1 (6) Where a person who claims to be a Convention refugee
(a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim,
(b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or
(c) 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 and, where it does so, the Refugee Division shall send a written notice of its decision to the person and to the Minister.
69.1 (6) La section du statut peut, après avoir donné à l'intéressé la possibilité de se faire entendre, conclure au désistement dans les cas suivants :
a) l'intéressé ne comparaît pas aux date, heure et lieu fixés pour l'audience;
b) l'intéressé omet de lui fournir les renseignements visés au paragraphe 46.03(2);
c) elle estime qu'il y a défaut par ailleurs de sa part dans la poursuite de la revendication.
Si elle conclut au désistement, la section du statut en avise par écrit l'intéressé et le ministre.
[7] Section 32 of the Convention Refugee Determination Division Rules, SOR/93-45, further requires that the Board allow the applicant to be heard on the issue of abandonment.
[8] It is well established in law that the correct legal test of "abandonment" is whether the applicant's conduct shows that he or she does not intend or wish to pursue his or her claim with diligence (see, for example, Izauierdo v. Canada (M.C.I.), [1997] F.C.J. No. 1669 (T.D.) (QL), where Justice Rouleau denied the application because "there was no evidence on the record that the applicant was diligently pursuing her claim". Also, in Alegria-Ramos v. Canada (M.C.I.) (1999), 164 F.T.R. 150, Justice Dubé allowed the application because "[t]he Board could not reasonably conclude that ‘there seems to be a lack of interest on the part of the claimants to pursue their claims.'")
[9] In the present matter, I am of the impression that rather than conducting an evaluation of the applicant's intention, the Board spent a considerable amount of time assessing her credibility with respect to irrelevant issues, namely with respect to the address at which the applicant lived since the month of August 1999 and with respect to the address and letters, which might have been pertinent had the applicant attempted to argue that she had not received proper notification of the hearing. It is true that the Board did, in fact, consider the issue as to whether or not counsel was retained in a timely manner, which is a relevant factor in the determination of the applicant's intent to pursue her claim. But I am convinced that it did not understand the applicant's explanation, as it appears from the following excerpt of the transcript, at page 53 of the tribunal's Record:
- O.K., parce que là , c'est seulement après que vous ayez reçu le formulaire de renseignements personnels que vous avez commencé à faire des recherches pour trouver un avocat pour...
R. Non, mais c'était... c'était avant j'ai... j'ai cherché. J'étais avant avec le... maître Blain, c'était... je pensais pas que le délai était déjà passé quand j'ai... parce que j'ai pris rendez-vous avec maître Blain, avec le... avant le 4 janvier, c'était avant le 4, avant que le... que le délai ne... ne se termine, c'était avant.
[10] In the transcript, it seems that the Board terminated this line of questioning and turned to another matter. However, in its conclusion, the Board states, at page 81 of its Record:
Selon votre propre témoignage, vous avez attendu après le 4 janvier pour commencer à faire des démarches pour trouver un avocat pour vous aider. Même si c'était avant, il faut quand même constater qu'en date du 4 janvier, vous n'aviez pas produit le FRP, vous avez attendu jusqu'au 24 janvier pour produire le FRP.
[11] In my view, had the Board properly assessed the applicant's intention to proceed with her claim, it would have found that there is ample evidence on the file indicating that she had attempted to pursue her claim with diligence and that she had a continued desire to proceed. Such evidence included the fact that she had contacted Immigration Canada a number of times to find out the status of her claim, that she was ill in December, that her first counsel was unavailable over the holidays, that she was dissatisfied with her first counsel and was compelled to retain a second, that she had difficulties finding counsel who would work for legal aid, and that as soon as she did find counsel, she submitted her PIF the next working day.
[12] On the basis of the evidence, therefore, I find that it was simply not reasonable for the Board to conclude that the applicant had abandoned her claim. Consequently, the application for judicial review is allowed, the Board's decision that the applicant's claim was abandoned is set aside, and the Board is directed to determine the applicant's refugee claim with a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
March 30, 2001