Date: 20020925
Docket: IMM-280-02
Neutral Citation: 2002 FCT 991
Between:
SAAD TAHER, domiciled and residing at
2851 Baycrest Drive, apt 104
Ottawa, Ontario H1V 8V7 - Canada
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
C/o Department of Justice, Complex Guy-Favreau
200 René-Lévesque West, East Tower, 5th floor
Montreal (Quebec) H2Z 1X4, Canada
Respondent
REASONS FOR ORDER
PINARD J.:
This application is for judicial review, under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") of a decision of the Convention Refugee Determination Division of the Immigration and Refuge Board (the "Board") dated January 7, 2002, in which the Board denied the applicant's motion to have his refugee claim reopened. The Board had previously determined that the applicant's refugee claim had been abandoned due to his failure to file his Personal Information Form ("PIF"), his failure to provide an address, phone number or name of counsel as well as his failure to appear at a hearing to consider the abandonment of his claim. The Board concluded as follows:
In summary, I have already found that the Board did not breach the rules of natural justice in declaring the Applicant's claim to be abandoned. I find as well, on the evidence canvassed above, that no breach of the rules of natural justice arises in relation to the conduct or competency of counsel for the Applicant.
Upon hearing counsel for the parties and reviewing the evidence, I cannot agree there had been no breach of natural justice. There was clear and uncontradicted evidence before the Board showing that the applicant, who did not speak or understand any of our Canadian official languages, had retained an experienced attorney within a reasonable time. It is through the unique fault of his counsel that the applicant's PIF was not filed and his address, phone number and name of counsel were not provided. The applicant was therefore not negligent.
As a result, even though the Board could not be blamed for not giving the applicant a reasonable opportunity to be heard pursuant to subsection 69.1(6) of the Act before declaring the claim to have been abandoned, the applicant was nonetheless denied natural justice and deprived, through no fault of his own, of a fair opportunity to be heard before his claim was declared abandoned.
Given these extraordinary circumstances and the serious effect of the impugned decision, which is to prevent the reestablishment of the applicant's refugee claim, I am of the view that the fault of counsel is sufficient to give rise to a natural justice issue. In my opinion, the following statement by Rothstein J. (as he then was) in Drummond v. Canada (M.C.I.) (1996), 112 F.T.R. 33 at 35, fully applies to the case at bar:
. . . However, in extraordinary cases, competency of counsel may give rise to a natural justice issue. In such cases, the facts must be specific and clearly proven; see Sheikh v. M.E.I. (1990), 71 D.L.R. (4th) 604 (F.C.A.); Huynh v. M.E.I. (1993), 21 Imm.L.R. (2d) 18 (F.C.T.D.); and Shirwa v. M.E.I. (1993), 23 Imm.L.R. (2d) 123 (F.C.T.D.).
For all the above reasons, I find that the applicant's motion to reopen should have been granted by the Board. Accordingly, the application for judicial review is allowed and the matter is remitted to a differently constituted Board for redetermination in accordance with these Reasons.
JUDGE
OTTAWA, ONTARIO
September 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-280-02
STYLE OF CAUSE: SAAD TAHER v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 13, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: September 25, 2002
APPEARANCES:
Me Joyce Yedid FOR THE APPLICANT
Me Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joyce Yedid FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario