Date: 20040805
Docket: IMM-5139-03
Citation: 2004 FC 1078
Toronto, Ontario, August 5th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
YI JING SU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Su is a 20-year old citizen of China and came to Canada on March 28, 2003 to claim Convention refugee status based on her religious beliefs. On April 14, 2003 she was found eligible to make a refugee claim and given a Personal Information Form ("PIF") to complete and submit within 28 days, by May 12, 2003.
[2] The applicant failed to submit her PIF by this date, filing it eight days late on May 20, 2003. Notice to appear at an abandonment hearing was issued on May 12th and the hearing was conducted on June 19, 2003.
[3] As submitted to the Board at the abandonment hearing, and sworn by the applicant in her affidavit filed in this proceeding, Ms. Su is from the Guangdong region of China, the area that had many reported cases of Severe Acute Respiratory Syndrome ("SARS"). After receiving her PIF to complete, she noticed she had a cough. She also describes that more individuals from Guangdong region arrived after she did at the place where she was staying. The applicant attests that she was told by a representative of the law firm that was assisting her to stay at home for ten days, since that is what the public health department had advised. She claims that since she stayed at home for these ten days she did not complete and submit her PIF on time to the Board.
[4] As revealed by the transcript of the applicant's show cause hearing on June 19, 2003, the Board member did not believe this explanation because the date on the signature page of her PIF was May 12, 2003, when really she claimed that she signed it "around the 20th" of May. The Board member stated at the hearing that she did not find the applicant credible due to this discrepancy. It is also clear that the Board member placed a good deal of weight on the fact that the applicant's representative (not the individual who represented her at this hearing) was a lawyer and that he would not have submitted a PIF under his name with an incorrect date on it.
[5] The applicant attests that her consultant had had the date pre-typed on her PIF in anticipation of her coming to their office on May 12, 2003 to sign it and mistakenly forgot to change this date when she came in at a later time to sign it. The applicant asserts that it has always been her intention to proceed with her refugee claim and that she would have filed her PIF on time except for the fact that she had developed symptoms of SARS after being in close contact with recent arrivals from Guangdong province in China.
[6] Are the Board's reasons for declaring the applicant's refugee claim abandoned reasonable?
[7] The Board's reasons for decision do not disclose why Ms. Su's explanation for the signature date of the PIF was not believed by the Board. The applicant relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and argues that the Board breached its obligation to provide clear and intelligible reasons for such a crucial decision that would have great impact on her life.
[8] The respondent submits that the applicant has failed to demonstrate any error in the Board's decision. The Board's decision was reasonably open to it and the applicant's argument does not explain why she or her representative didn't seek a motion for an extension.
[9] In Powar v. Canada (Minister of Citizenship and Immigration) (2001), 274 N.R. 360 (F.C.A.), the Federal Court of Appeal commented that an abandonment decision of the Board is a discretionary one. However, due to the serious impact and consequences of such a decision on the individual, in that it takes away the right to pursue a claim that a person will be persecuted if returned to their country of origin prior to any determination on the merits of such claim, as well as the lack of privative clause in the legislation and that the nature of the decision being one of mixed fact and law, several decisions of this Court have adopted the reasonableness simpliciter standard of review, and I see no reason to depart from that standard in this case: see for example Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.), Szabo v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 52 (F.C.)(QL) and Rusconi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1889 (F.C.)(QL).
[10] At page 122 of Ahamad, supra, Justice Lemieux stated as follows:
The decided cases of the Court on a review of abandonment claim decisions by the CRDD indicate the test or question to be asked is whether the refugee claimant's conduct amounts to an expression of intention by that person, he or she did not wish or had shown no interest to pursue the refugee claim with diligence; this assessment is to be made in the context of the obligation of a claimant who breaches one of the elements of subsection 69.1(6) to provide a reasonable excuse (Perez v. Canada (Solicitor General) (1994), 93 F.T.R. 256 (F.C.T.D.), Joyal J.; Izauierdo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1669 (T.D.) (QL), Rouleau J.; Ressam v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 50 (F.C.T.D.), Pinard J.; Alegria-Ramos v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 150 (F.C.T.D.), Dubé J.).
[11] In my view, the Board's decision was an unreasonable one and cannot withstand a somewhat probing examination. The Board member found the applicant's explanation for filing her PIF eight days late not to be credible because she did not believe her explanation for the date being typed in as May 12, 2003 by her counsel's office, that it was their standard procedure to type the due date of a PIF into the date line prior to signature, and that this was overlooked by her counsel prior to submitting it to the Board on May 20, 2003.
[12] The reason given by the Board for not finding such explanation credible was because her representative, a Mr. Fromkin, was a "...Barrister and Solicitor and the PIF that was submitted here came under his name." I have concluded that this reason for doubting the applicant's intention to pursue her refugee claim with diligence is unreasonable, given that the applicant's representative at the hearing stated that Mr. Fromkin had not reviewed the PIF prior to it being submitted to the Board on May 20th. Therefore, the Board's reasons contradict the evidence that was before it and there is no other reason set out for disbelieving that a careless, yet allegedly inadvertent, clerical error was the only cause of the discrepancy that gave the Board member concern with the applicant's credibility.
[13] For the above reasons, this judicial review shall be allowed. No question was requested for certification.
ORDER
THIS COURT ORDERS that this application is allowed, the abandonment decision of the Board is set aside and a different Board shall reconsider the issue of whether the applicant's claim is to be declared abandoned. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5139-03
STYLE OF CAUSE: YI JING SU
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 5, 2004
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES BY:
Hart Kaminker For the Applicant
Marina Stefanovich For the Respondent
SOLICITORS OF RECORD:
Kranc and Associates
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040805
Docket: IMM-5139-03
BETWEEN:
YI JING SU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER