Date: 20010323
Docket: IMM-1659-00
Neutral Citation: 2001 FCT 235
BETWEEN:
GYORGY FORGACS and GYORGYNE FORGACS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board [the"Board"] dated May 19, 1999, and signed by the Registrar on May 28, 1999 wherein it was determined that the applicants' refugee claim had been abandoned.
FACTS
[2] The applicants are citizens of Hungary. They came to Canada on February 22, 1999 and declared their intention to make a refugee claim immediately upon their arrival at Lester B Pearson International Airport in Toronto.
[3] From February 25, 1999 until the end of March, the applicants resided at Town and Country Motel at 517 Plains Road, Burlington, Ontario.
[4] On March 10, 1999, the applicants' claim was referred to the Board. On March 17, 1999, the applicants were served with their Personal Information Forms (PIFs) and Acknowledgement Form which were handed to them by staff at the Motel.
[5] At the time, the applicants did not understand any English and had to rely entirely on the services of voluntary interpreters which were provided to them from time to time at the Motel by their social workers.
[6] The form requiring the applicants to notify immigration authorities of their change of address in person or by mail was not translated to the applicants.
[7] According to the applicants, their daughter, Ilona, nevertheless notified Hamilton Canada Immigration Center ("CIC") every time they moved. She did this by going in personally to Hamilton CIC at Jackson Centre on James Street North. During the time period in question, the applicants moved twice: in April, 1999, they moved to 55 Murray Street, Hamilton, Ontario and on June 1, 1999 they moved to their current address at 172 James Street North. On all occasions their daughter, Ilona, personally notified CIC in Hamilton of their change of address.
[8] The respondent has submitted an affidavit of Lani Vanderveen, Legal Secretary with the Department of Justice, Ontario Regional Office, Immigration Law Section. Mrs. Vanderveen states in her affidavit that David McBean, a Case Presenting Officer at the Board had informed her that the applicants' PIFs were received by the Board on June 9, 1999 and that prior to the receipt of the applicants' PIF on June 9, 1999, there is no evidence in the Board's files to indicate that the applicants informed the Board of any change of address.
[9] Nevertheless, according to the applicants, in March, shortly after receiving their PIFs, a social worker made an appointment for them with their former counsel. Sometime in March, 1999, the applicants had an appointment with their former counsel and prepared their respective PIFs. A couple of days later, the applicants went to Legal Aid. On or about March 10, 1999, counsel prepared the applicants' PIFs but for some unknown reason it never reached the Board on time. The PIFs were finally signed on June 4, 1999 and filed on June 9, 1999.
[10] Since the applicants did not file their PIFs within 28 days after the date on which they were served with their PIFs, the Board, by notice dated April 30, 1999, advised the applicants that a hearing would be held on May 19, 1999 to give the applicants an opportunity to show cause why the Board should not declare the claim to have been abandoned.
[11] The applicants did not appear at the hearing on May 19, 1999. Consequently, by notice dated May 19, 1999 signed by the Registrar on May 28, 1999, the Board declared the applicants' claim abandoned.
[12] The affidavit of the applicant Gyorgy Forgacs was submitted in support of this application for judicial review. In his affidavit, Gyorgy Forgacs states that he never received the notice and that had he received it he would have appeared at the hearing because he never intended to abandon his refugee claim. He states that he later learned that the notice to appear was sent to Town and Country Motel and that a copy of it was picked up by their former counsel's interpreter on May 25, 1999. It would then appear that the Motel failed to forward the notice to the applicants' new address and their former counsel either did not go on the record at the Board or did not notify the Board of their change of address.
[13] The applicants note that despite their bona fide efforts to notify CIC and their former counsel of their change of address it was never recorded at the Board. The applicants find it curious that their daughter, Ilona, who has been living with the applicants since they came to Canada, accompanied the applicants every where and had the same appointments with counsel and Legal Aid and took the same steps to notify immigration authorities of their change of address, has not had her refugee claim declared abandoned. She is currently awaiting her hearing.
[14] The applicants' then counsel received the notice of abandonment on June 7, 1999.
[15] On January 10, 2000, the applicants' counsel filed a motion to reopen. On February 7, 2000 the Board denied the application to reopen. No written reasons were provided by the Board but oral reasons were communicated to the applicants' counsel. The single panel member found that the applicants were negligent in pursuing their refugee claim.
[16] The applicants' application for leave to challenge the May 19, 1999, decision was not filed and served until April 2, 2000, approximately nine months after their counsel received the decision.
THE APPLICANTS' POSITION
[17] The applicants submit that an abandonment claim can be reopened where there has been a denial or breach of natural justice in the abandonment proceedings. The Board has the discretion to decide whether the applicant had sufficient reasons why he did not comply with the seemingly inflexible rules of the Board. The discretion of the Board to find proceedings abandoned should be subject to serious scrutiny when such punctilious decision-making results in the expulsion of a person.
[18] The applicants submit that when a party fails to appear before a court, it is the duty of the court to determine whether he or she was really advised of the date and place of the sitting.
[19] The purpose of the abandonment hearing was to give the Board an explanation why the applicants PIFs were not submitted on time. The applicants missed the hearing because they did not receive notice. This opportunity was denied to them by misfortune and their lack of knowledge.
[20] The applicants offered additional explanation in their motion record. Had the applicants offered the same explanation at the abandonment hearing, it is probable that their claim would not have been abandoned for reasons of their negligence to pursue their claim.
[21] It is submitted that the Board erred in that it failed to review carefully evidence before it in the motion record. Had the Board carefully reviewed such evidence it would have realized that it breached the principles of fairness and natural justice and it would not have reached a conclusion that the applicants were negligent in pursuing their refugee claim. The applicants' evidence that the Board seemed to have missed is that they did not know (and without the benefit of an interpreter could not have known) that they were required to notify the Board directly of their change of address. Nevertheless, the applicants showed good faith and diligence to notify immigration authorities when their daughter, Ilona (whose claim has not been abandoned) personally attended at Hamilton CIC to submit their change of address.
THE RESPONDENT'S POSITION
[22] The respondent submits that the applicants have failed to show that the Board breached the principles of natural justice by declaring the applicants' refugee claim abandoned.
[23] The applicants allegations are that they prepared their PIFs after receiving them and mailed them to the Board, but for some inexplicable reason the PIFs never arrived at the IRB in time. The respondent submits that this argument is shown to be completely disingenuous because, as the applicants' own PIFs point out, the PIFs were not prepared, or at least signed, until June 4, 1999, at least two weeks after the claim was declared abandoned. Therefore, the suggestion that it was prepared and mailed to the Board within the required time is completely disingenuous and meritless.
[24] The applicants did not provide the Board with their PIFs in a timely fashion and did not appear at the abandonment hearing to show cause why their claim should not be declared abandoned, so the argument that the decision breached procedural fairness is without merit.
ANALYSIS
Should the decision of the Board wherein the applicants refugee claim was determined to have been abandoned be set aside?
[25] The applicants contend that they did not receive the notice to appear for an abandonment of a Convention Refugee claim and that their counsel received the notice on May 25, 1999, after the claim had been declared abandoned.
[26] The applicants submits that when a party fails to appear before a court, it is the duty of the court to determine whether he or she was really advised of the date and place of the sitting.
[27] Paragraph 69.1(6) of the Immigration Act states:
| (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. |
(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. |
|
[28] Section 32 of the Convention Refugee Determination Division Rules indicates:
| 32. (1) Before declaring a claim to have been abandoned pursuant to subsection 69.1(6) of the Act or an application to have been abandoned pursuant to subsection 69.3(2) of the Act, the Refugee Division shall serve on the parties a notice to appear directing them to attend a hearing on the abandonment. (2) The notice to appear shall also inform the parties that where, at the end of a hearing concerning an abandonment, the Refugee Division does not declare the claim or application to have been abandoned, the Refugee Division will forthwith commence or resume the hearing into the claim or application. |
32. (1) Avant de conclure au désistement d'une revendication ou d'une demande conformément aux paragraphes 69.1(6) ou 69.3(2) de la Loi, la section du statut signifie aux parties un avis de convocation, les convoquant à une audience relative au désistement. (2) L'avis de convocation signale aussi aux parties que, si la section du statut ne conclut pas au désistement au terme de l'audience relative au désistement, elle commencera ou reprendra sans délai l'audience relative à la revendication ou à la demande. |
|
[29] In Ahamad v. Canada (M.C.I.), [2000] 3 F.C. 109 (T.D.), Lemieux J. reviewed the decision of the Supreme Court of Canada in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 in order to determine the standard of review to be applied regarding a decision of the Board declaring that a refugee claimant had abandoned his claim on the grounds that that claimant did not appear on the scheduled hearing date. Lemieux J. held :
Clearly, in this case, the CRDD's decision was a discretionary one, the Act providing "the Refugee Division may ... declare the claim to have been abandoned"; the law did not dictate a specific outcome but left open a choice within a statutorily imposed set of boundaries (Baker, supra, at pages 852-853, paragraph 52).
In short, as I read Baker, supra, the Supreme Court of Canada has integrated the substantive aspects of discretionary decisions into the "well-known practical and functional approach"--the creation of a spectrum with certain decisions being entitled to more deference, and others with less.
Rather than classifying decisions as discretionary or non-discretionary ones, such an analysis or approach requires taking into account considerations such as the expertise of the tribunal, the nature of the decision, the language of the provision and the surrounding legislation.
L'Heureux-Dubé J., in Baker, supra, built upon that Court's decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R 982 (amended reasons at [1998] 1 S.C.R. 1222). Taking into account the analysis in both of these cases, the lack of a privative clause, the object of the judicial review (question of law vs. fact-finding expertise) and the purpose of the provision leads me to conclude that the appropriate standard of review of the CRDD's decision the applicant had abandoned his refugee claim is one of reasonableness simpliciter. As I see it, the basis upon which the CRDD's decision rests does not involve primarily legal considerations, for example, the interpretation of a statutory provision, nor findings of fact where paragraph 18(4)(d) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] would require greater deference. In this case, the basis of the decision is one of mixed law and fact.
In applying these factors, I stress the nature of the decision being made: it is a determination that a refugee claimant has abandoned his/her claim before the claimant has been heard on the merits for the reason of that person's failure to appear at the scheduled hearing. Bastarache J., in Pushpanathan, supra, said in the context of a finding that a refugee claimant was excluded under Article 1F(a) of the Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6] such determination is "quite profound" for the claimant. This approach was echoed by my colleague, Muldoon J. in Cirahan v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 116 (F.C.T.D.), at page 118, paragraph 5, a case involving a review of a CRDD decision deciding the applicant's claim had been abandoned. Muldoon J. said "[t]he discretion of the CRDD to find proceedings abandoned should be subject to serious scrutiny" [underlining added]. I agree.
Secondly, the nature of the discretionary decision is one which Parliament has indicated should be exercised taking into classical administrative law indicia--not ones where policy factors weigh heavily. In this perspective, the often quoted statement by McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at page 7 focussing on good faith, natural justice and relevant considerations are apt.
The gauge of unreasonableness is that set out by Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at pages 776-777, paragraph 56:
I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. [Emphasis mine.]
[30] Joyal J. in Perez v. Canada (Solicitor General)_[1994] F.C.J. No. 1798 (T.D.) had to determine whether the Board in that case had erred in finding that the applicant had abandoned her claim since the Board did not give the applicant an opportunity to explain the reasons for her absence on the said day. Joyal J. concluded:
In the case at bar, the applicant had several opportunities to present her case but failed to proceed or was absent. Additionally, her counsel appeared on August 25 to represent her client's interests.
In Mendez v. Canada, IMM-4007-94, dated September 1, 1994, involving an application to stay the execution of a deportation order, the applicant asked the Court to lift the abandonment so he could explain his case. Reed J. refused to grant the application, explaining that the applicant had been given two opportunities to present his case at hearings and had deliberately absented himself from each one.
In short, it is a procedural question whether there is the type of error in the Refugee Division's decision that will justify intervention by this Court.
In Chen v. Canada, A-1176-91, dated August 6, 1993, my brother Gibson J. stated that it was the Refugee Division's duty to ensure that a claimant had an opportunity to explain himself before the Division concluded that there had been an abandonment. In that case, however, the circumstances in the record were quite different from those at bar and in my opinion that decision is not relevant.
I feel that there is more to be learned from the judgment of the Federal Court of Appeal in Aubut v. Minister of National Revenue, 126 N.R. 381, at 383, in which Hugessen J.A. said the following:
How can it be argued that the applicant in this case did not have a reasonable opportunity to be heard? He was properly notified of the date and place of the hearing. His counsel was present and was able to make representations on his behalf. If his presence was necessary to the success of his appeal, then he should have been present and ordinarily he must bear the consequences of his absence.
When a party fails to appear before a court, it is the duty of the court to determine whether he or she was really advised of the date and place of the sitting. But the court's duty goes no further than that. The court is not obliged to conduct a sort of in-house investigation to determine the possible reasons for his absence. On the contrary, it is entitled to expect that parties will keep properly given appointments. If a party fails to appear, it is for the party, and not the court, to put forward his explanations or excuses, if there be any.
In the case now before the Court it is clear that the applicant, the hearing of whose claim was adjourned several times, was formally notified that the Refugee Division would be considering the question of her abandonment. She was duly represented by counsel and the record contains the latter's attempts to contact the applicant, though without success, when nothing had been heard from her since June 1993.
In the exercise of its statutory jurisdiction the Refugee Division rendered judgment. A court cannot intervene unless it finds an error of law or, as is alleged, a breach of natural justice, but I am not persuaded that such a situation exists in this case. The application must therefore be dismissed.
[31] The question to be determined therefore is whether the applicants were really advised of the date and place of the sitting and whether the notice met the requirement of fairness.
[32] The applicants claim that they were not informed that they had to notify the Board and the Canada Immigration Centre of their change of address since they did not understand English and the interpreter did not translated to them the Acknowledgement of Terms and Conditions Form requiring the applicants to notify the Board of their change of address in person or by mail.
[33] The applicants argue that they showed good faith and diligence to notify immigration authorities when their daughter, Ilona (whose claim had not been abandoned) personally attended at Hamilton CIC to submit their change of address.
[34] On the other hand, the respondent submits that receipt by the applicants' then counsel of the Refugee Division's decision is deemed to be receipt by the applicants. It is also true that the applicants had provided no evidence to suggest that they were unaware of the decision until January 11, 2000 when the motion to reopen was made.
[35] I have also difficulty to reconcile the facts that even though the applicants pretend having prepared their PIFs in March, those PIFs were signed on June 4 and filed on June 9, 1999, that is, two days after the applicants' then counsel received the decision.
[36] What happened between June 7, 1999 and January 11, 2000? Is there any reason provided to explain that nine month delay to bring a motion? Nothing.
[37] The applicants have the responsibility to show that the delay was beyond control of counsel or the applicants if they want an extension of time being granted.
[38] In Luo v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 160 (F.C.T.D.), Justice Dubé held:
I must agree with the respondent that the law applicable to this matter is summarized in the recent decision of my colleague, Mr. Justice Teitelbaum in Mussa v. M.E.I., IMM-6043-93, dated July 18, 1994:
It is beyond my comprehension that a refugee claimant, a refugee claimant who knows that he's claiming refugee status because he's concerned about persecution, shows little or no interest in what is happening to his application and doesn't take it upon himself to make sure immediately upon moving or almost immediately upon moving of notifying the immigration authorities of a move. There is no doubt that the onus of notifying immigration of change of addresses rests with the refugee claimant. It is not for the Refugee Department or the Immigration Department to find out where each and every single refugee applicant resides.
...
I am also satisfied that the applicant was absolutely negligent even in waiting from March to the beginning of June to inform the Immigration Department that he had changed his address.
...
I'm satisfied that the applicant in this case had an obligation to keep in touch, either with his counsel or with the Immigration Department, to at least inform them within days at the most of any change of address and it's his obligation to actively pursue his claim. He wants to know if he's going to become a refugee, be allowed to claim refugee status or not and become a landed immigrant. He didn't do this. I don't understand it.
In the case at bar, as in Mussa, there is no reviewable error on the part of Refugee Division, which sent notices to the address that the applicant allowed to stand as his current address for service from September 1992. Furthermore, the Charter grounds asserted by the applicant do not, in my view, create arguable issues as they are contingent on there being a denial of fairness in the circumstances of this case. I cannot find that there was such a denial of fairness. Consequently the application must be denied.
[39] Maybe they put their case in a weak lawyer's hands, but this Court has to consider whether there is a breach of the applicants' procedural rights when the Refugee Division declared their claim abandoned on May 19, 2000.
[40] In my view, there was no reviewable error on the part of the Board in this case.
[41] For these reasons, this application for judicial review is dismissed.
[42] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 23, 2001