Docket: IMM-7015-03
Ottawa, Ontario, this 24th day of September, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
FIKRET UYSAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board ("Board"), dated August 14, 2003, wherein it determined that the Applicant's claim for refugee status had been abandoned and would not be reopened.
[2] The Applicant is a 36-year old male national of Turkey. On April 9, 2003, the Applicant stated his intention to make a refugee claim to Citizenship and Immigration Canada and it was determined that his claim was eligible to proceed. The Applicant's claim was referred to the Board on April 9, 2003.
[3] The relevant sequence of events was as follows:
· April 9, 2003, a blank PIF form was provided to the Applicant
· April 18, 2003, the Applicant provided the Board with Notification of Counsel and
Notification of Contact Information
· April 22, 2003, the Applicant's counsel made a request for POE notes
· May 7, 2003, the completed Personal Identification Form ("PIF") was due
· May 28, 2003, the Applicant filed a completed PIF with the Board
· June 12, 2003, the Board held an Abandonment Hearing
· June 12, 2003, the Applicant appeared with a letter from his Counsel explaining the late filing of the PIF and explaining her absence from the Hearing. The Board did not adjourn, proceeded with the hearing and declared the claim abandoned.
· July 4, 2003, the Applicant's Counsel filed an application to reopen the claim
· August 14, 2003, the Board dismissed the application to reopen
[13] The letter from Applicant's counsel that was provided to the Board on June 12, 2003, gave the following reasons for the delay in submitting his PIF and her inability to attend:
I am writing concerning Mr. Uysal's abandonment hearing. I regret that I am committed to a full day hearing at the Board's offices on June 12th and will therefore be unavailable to attend the above hearing.
I ask that the Board allow the claimant's claim to proceed and not abandon his refugee claim, for the following reasons:
* The claimant apologizes for filing his PIF late. He lives in Hamilton while his interpreter lives in Toronto, making logistical problems in arranging appointment times. He required an interpreter for all appointments. He had to travel to Toronto three times to prepare his PIF. On one occasion, he confused the location and missed his appointment with me.
* I was ill with a virus during the week of May 15th to 22nd. I had to cancel one hearing as well as my appointments for 2 days. Therefore, I was unable to meet with the claimant to prepare his PIF.
* I had to make up all the appointments that I missed due to my illness; this also delayed the finalization of the PIF.
* I submit that the claimant should not be penalized for my illness and inability to meet with him.
* The claimant has applied for and obtained Legal Aid, another indicator of his efforts to pursue his refugee claim.
I submit that the claimant has shown his intention to pursue his refugee claim and not abandon it.
Thank you in advance for your attention to this matter.
[14] The Board did not adjourn the matter (as the letter did not request an adjournment) but after hearing from the Applicant, declared the application abandoned. The Chairman stated orally as follows:
With all the evidence I've received from you to date, sir, there's a lot of problems with plausibility in your testimony. I have brought those occasions to your attention, provided you an opportunity to respond. I find that your explanations are not reasonable and persuasive.
Basically your evidence indicates that your school had more priority than pursuing your claim.
Based on the evidence before me, and the letter that was given by your counsel who is explaining that you had problems finding the place, that she was ill, she's behind in her practice, that you applied for Legal Aid, now I find that you applied for Legal Aid after the deadline of the PIF, which was May the 7th.
I conclude that you have failed to demonstrate that you were pursuing your claim in a serious and diligent manner. I am going to declare it abandoned. 21 days is excessive delay. Okay. Your counsel will advise you of the options you have open to you with respect to submitting an re-opening request.
[15] The Board also issued formal reasons ex post facto on October 16, 2003. However, as these were made subsequently to the request for judicial review, I will treat the above excerpt from the transcript as the reasons for the decision to declare the application abandoned.
[16] The application to reopen was dismissed without reasons. However, the endorsement on the record reads as follows:
The applicant was given an opportunity to show cause at the abandonment hearing of 12 June 2003. His explanations for the 21 day delay in filing his PIF was found not reasonable and not persuasive by the presiding member. The member took into consideration the applicant's evidence and counsel's letter brought to the hearing by the applicant. In the letter, counsel indicated that she was unavailable to attend the applicant's abandonment hearing. There was no application to change the time and date of the hearing. Even though counsel was on IRB premises at the time, the expectation for the Board to go looking for counsel for a hearing for which she said she was unavailable is not reasonable. I do not find that declaring the applicant's claim abandoned breached natural justice.
[17] In his application for judicial review of the decision not to reopen the Applicant argues that he was denied natural justice. In essence he makes two points:
a. he was deprived of counsel at the abandonment hearing; and
b. he was never given a chance to explain the reason for filing his PIF late.
[18] Given that his counsel never asked for an adjournment, I find it difficult to agree that he was deprived of counsel. He unfortunately did not have very competent counsel, however, this is not a denial of natural justice.
[19] The second point, however, has more validity. While the Board did ask him why he did not submit his PIF within the 28 day period, he was never provided with a meaningful opportunity to give his explanation. In fact, when the Applicant tried to provide an explanation, the Board interrupted his response by asking the question "What is your occupation?".
[20] The remainder of the hearing is best described as a "rigorous cross-examination" by the Board. On several occasions the Applicant did not understand a question and asked the Board for an explanation. The Board failed to provide an explanation to his questions, preferring instead to ask a different question in response.
[21] The Refugee Protection Division Rules ("Board Rules")[1] set out the procedure to be followed in Abandonment Hearings. In particular:
58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
Opportunity to explain
(2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity
(a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing after notifying the claimant in writing.
Factors to consider
(3) The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.
Decision to start or continue the proceedings
(4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay.
(Underlining added)
[22] Clearly the June 12, 2003 Board did not follow its own regulations during the Abandonment Hearing. A reading of the transcript of the hearing makes it abundantly clear that the actions of the Board at the hearing are tantamount to not permitting the Applicant to put forward his case. Not permitting a party to put forward its case is a violation of the fundamental principles of natural justice which constitutes a reversible error. Any observant officer examining the transcript when considering the application to reopen, could not have missed how the 'rigorous cross-examination' by the Board threw the Applicant off balance and prevented him from putting forward his case. Accordingly, the application will be allowed.
ORDER
THIS COURT ORDERS that the decision not to reopen dated April 14, 2003, is set aside. The matter is referred back to a differently constituted panel for reconsideration in light of the reasons stated above.
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7015-03
STYLE OF CAUSE: FIKRET UYSAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 22, 2004
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: SEPTEMBER 24, 2004
APPEARANCES BY:
Russ Makepeace For the Applicant
Alexis Singer For the Respondent
SOLICITORS OF RECORD:
Russ Makepeace
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040924
Docket: IMM-7015-03
BETWEEN:
FIKRET UYSAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER