Date: 20021001
Docket: IMM-4556-01
Neutral citation: 2002 FCT 1024
Toronto, Ontario, Tuesday, the 1st day of October, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
BECKLEY SUNDAY ADEWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division"), dated September 18, 2001, wherein the Appeal Division dismissed the applicant's appeal.
[2] The applicant seeks an order setting aside the decision of the Appeal Division, and an order referring the matter back to the Appeal Division to set a date for a hearing of this matter.
Background
[3] The applicant applied to sponsor his wife, daughter and two sons as immigrants in Canada. By letter dated November 13, 2000, the applicant's application to sponsor Bolajoko Adewa, Adedayo Adewa, Adeleye Adewa and Adetut Adewa was denied.
[4] The applicant filed a notice of appeal with the Appeal Division, on November 30, 2000, indicating the name of his counsel.
[5] By letter dated February 6, 2001, the applicant was notified by the Appeal Division that his file had been selected for Alternative Dispute Resolution ("ADR") and was advised that a dispute resolution officer had been assigned to his file. The letter was copied to the applicant's counsel, Arthur Yallen.
[6] In a separate letter from the Immigration Appeals Office, dated February 6, 2001, the applicant received materials that detailed the ADR process as it pertained to his case, including notice of filing requirements and relevant deadlines for filing requirements. The applicant's counsel was sent a copy of the letter. The letter included the following final paragraph:
In order to deal with your case quickly, you must respond to this letter within 45 days. You can respond by fax or by mail, but fax is quicker. If you do not respond within 45 days, or you do not complete the forms correctly or you do not provide all of the information which we are asking for, then CIC will not be able to settle your case. If your case can not [sic] be settled, then it will be scheduled for a hearing. The Immigration Appeal Division will contact you in order to schedule a hearing. Please do not call our office to discuss scheduling a hearing because that is not our responsibility and we will not be able to assist you.
[7] The letter indicated that failure to meet the documentary requirements and deadlines of the ADR program would result in exclusion from the ADR process, placing the applicant back into the regular appeal process.
[8] The applicant states that he filed all of his material in a timely manner. Among the material submitted by the applicant, as entered into evidence in this judicial review as an attachment to the applicant's affidavit, was a Credit Bureau report, dated May 7, 2001.
[9] A notice to show cause was issued on May 18, 2001, indicating that there would be a show cause hearing on June 8, 2001 at which the respondent would be required to show cause as to why an appeal book had not been served and filed. The notice indicated that the applicant had a right to attend and speak to the issue of the respondent's failure to file materials.
[10] By letter dated May 22, 2001, the applicant's counsel advised the Board that his office had been retained by the applicant and asked the Board to provide dates for the ADR hearing. This is the same counsel that was indicated on the applicant's notice of appeal, filed on November 30, 2000, and the same counsel who had been copied on the letters dated February 6, 2001.
[11] The applicant submits that in May and June, 2001, the applicant's counsel contacted the Appeal Division on two occasions in unsuccessful attempts to schedule the applicant's ADR session.
[12] A certified copy of the respondent's appeal record was served on the applicant and his counsel with a letter dated June 11, 2001.
[13] A notice to appear, dated July 12, 2001, was sent to the applicant to require him to attend at the Assignment Court on August 17, 2001 at 9:00 a.m. for the purpose of setting a date for his appeal. Provisions were outlined in the letter allowing the applicant or his counsel to contact the Board prior to that date, by telephone, to schedule the hearing. The notice to appear included the following:
Important: If the appellant fails to appear at the Assignment Court as directed, the Appeal Division may dismiss the appeal.
[14] There is nothing in the record of this judicial review that indicates that this notice to appear was sent to the applicant's counsel. The applicant's counsel states in their memorandum that counsel did not receive this notice. However, the applicant's counsel admits that after receiving this letter the applicant contacted his counsel in the middle of July, 2001 and advised him of the date of the Assignment Court.
[15] After receiving the notice to appear, the applicant did not telephone the Appeal Division to schedule a hearing date.
[16] The applicant submits that there was confusion between the applicant and his counsel as to who was to attend at the Assignment Court. Accordingly, neither the applicant, nor his counsel, appeared. When the applicant failed to appear at the Assignment Court on August 17, 2001, the appeal was dismissed.
[17] On August 23, 2001, the applicant's counsel contacted the Appeal Division to attempt to schedule the ADR session. The applicant submits that the applicant's counsel learned on August 24, 2001 that the applicant's appeal had been dismissed for failure on the part of the applicant, or his counsel, to attend at Assignment Court, on August 17, 2001.
[18] By letter dated August 27, 2001, the applicant's counsel noted that the order dismissing the appeal had not been sent to the applicant and requested that the applicant's appeal and ADR session be put back on the schedule.
[19] By order dated September 18, 2001, the applicant was advised that because the applicant failed to appear for the Assignment Court date, either personally or through counsel, his appeal had been dismissed. The Appeal Division further ordered that the applicant's application to re-open the appeal, filed August 27, 2001, was denied.
Applicant's Submissions
[20] The applicant submits that he was always diligent in pursuing his appeal.
[21] The applicant submits that it would be draconian, harsh, a breach of the principles of natural justice, and contrary to the principles of ADR, as set out by the Appeal Division on page one of the "Principles Governing Mediation", to dismiss his appeal.
[22] The applicant submits that based on correspondence from the Appeal Division dated February 6, 2001, he believed that his case was to be dealt with through ADR and that a formal hearing would only be held if ADR was unsuccessful. The applicant submits that the proceeding on August 17, 2001 was for the purpose of setting a date for an ADR session and therefore failure to attend should not dismiss his opportunity for a formal hearing of the appeal.
[23] The applicant submits that the Appeal Division misunderstood the nature of the hearing before it when it wrote: "The appeal came on for a hearing on the 17th day of August 2001", whereas the proceeding on the 17th was not the appeal hearing. The applicant submits that the Appeal Division may not have dismissed the appeal if they had properly understood the nature of the August 17th hearing.
[24] The applicant submits that the Appeal Division did not provide reasons and accordingly, this Court may review the decision on its merits (see Handjiev v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 175 (QL) (T.D.) per Evans J.)).
[25] The applicant submits that even if it was within the Appeal Division's discretion to dismiss the applicant's appeal because of failure to attend at Assignment Court, this decision is unduly harsh under the circumstances.
[26] The applicant submits that the notice provided to the applicant informing him of the August 17, 2001 hearing states that a date for the ADR session could be scheduled by contacting the scheduling unit of the Appeal Division within ten days of the hearing. The applicant submits that had this notice been provided to the applicant's counsel, counsel would have contacted the scheduling unit in advance of the August 17th hearing. The applicant submits that the Appeal Division had a duty to provide notice to counsel.
[27] The applicant submits that the applicant's right to a formal appeal hearing must remain intact as the ADR scheme contemplates a process whereby if ADR is unsuccessful, then a formal appeal hearing will be scheduled in the future.
[28] The applicant submits that no actual prejudice arises as a result of the non-attendance on August 17, 2001.
Respondent's Submissions
[29] The respondent submits that the Appeal Division has not committed an error in apprehending the nature of the proceeding on August 17, 2001, but conversely, it is the applicant who has misapprehended the facts. The respondent submits that the applicant was prevented from participating further in the ADR program as a result of his own failure to complete the financial disclosure requirements within the time frames outlined in correspondence dated February 6, 2001. The respondent submits that the applicant had agreed to proceed by way of ADR and was required to submit all the requested information within 45 days of receiving the letter dated February 6, 2001.
[30] The respondent submits that the applicant could not have completed his disclosure requirements within the time frames outlined in the February 6, 2001 letter as the applicant's Credit Bureau report is dated May 7, 2001, more than one month after the information was required by the ADR program.
[31] The respondent submits that in the applicant's affidavit the applicant notes he was diligent in providing his information and does not indicate that an extension of time was requested. It is the respondent's position that the applicant was removed from the ADR process and returned to the regular appeal stream.
[32] The respondent submits that the notice to appear was sufficiently clear that the applicant or his counsel were required to appear in Assignment Court to schedule a date for the hearing of the appeal. The respondent submits that any fault for the applicant's failure to appear can only be attributable to the applicant or his counsel and not the Appeal Division.
[33] The respondent submits that as the Assignment Court hearing dealt with the appeal, not ADR, the Appeal Division acted within their jurisdiction when dismissing the appeal as neither the applicant nor his counsel made any arrangement to set a date for the appeal hearing prior to August 17, 2001.
[34] The respondent submits that the Appeal Division had jurisdiction pursuant to subsections 69.4(2) and 77(4) of the Immigration Act, R.S.C. 1985, c. I-2 to dismiss the applicant's appeal.
[35] The respondent submits that the duty to give reasons is not breached if reasons were not requested. The respondent submits that pursuant to subsection 69.4(5) of the Immigration Act, supra, it was open to the applicant to request reasons for the decision, but the applicant failed to do so. The respondent submits that the applicant cannot use his own failure to act as a basis for requesting the intervention of this Court.
[36] Issue
Did the Appeal Division make a reviewable error?
[37] Relevant Statutory Provisions
Subsections 69.4(2), 69.4(5) and 77(4) of the Immigration Act, supra state:
| 69.4(2) The Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class. (5) The Appeal Division shall forthwith give written reasons for its disposition of any appeal made pursuant to section 70 or 71 where either of the parties to the appeal has so requested within ten days after having been notified of the disposition of the appeal. 77.(4) The Appeal Division may dispose of an appeal made pursuant to subsection (3) by allowing it or by dismissing it, and shall notify the Minister and the person who made the appeal of its decision and the reasons therefor. |
69.4(2) La section d'appel a compétence exclusive, dans le cas des appels visés aux articles 70, 71 et 77, pour entendre et juger sur des questions de droit et de fait - y compris en matière de compétence - relatives à la prise d'une mesure de renvoi ou au rejet d'une demande de droit d'établissement présentée par un parent. (5) La section d'appel n'est tenue de motiver par écrit sa décision sur un appel présenté en vertu des articles 70 ou 71 que si l'une des parties le demande dans les dix jours suivant sa notification, auquel cas la transmission des motifs se fait sans délai. 77.(4) La section d'appel peut faire droit à l'appel visé au paragraphe (3) ou le rejeter. Elle fait part de sa décision et de ses motifs au ministre et à l'appelant. |
Analysis and Decision
[38] Timing of Opportunity to Schedule Hearing by Telephone
The applicant submits that the notice to appear for the August 17, 2001 hearing said that the "ADR session" could be scheduled by contacting the scheduling unit of the Appeal Division within ten days of the hearing. The notice to appear states:
Alternatively our scheduling unit may be contacted at 416 973-7354 up to ten days prior to the date of this Assignment Court. If a date for the hearing of your appeal is agreed upon with the scheduling unit, you will not be required to attend the Assignment Court.
I am of the view that this notice refers to contacting the scheduling unit ten days prior to the date of the Assignment Court.
[39] Did the Notice to Appear Relate to Scheduling the ADR Session or the Appeal Hearing?
The notice to appear states:
You are to appear at an Assignment Court for the purpose of setting a date, in DEC/JAN/FEB 2002, or such earlier date as may be available for the hearing of your appeal or to resolve any other matter relating to the appeal.
I have perused the notice to appear and I can find no reference to scheduling an ADR session. Consequently, I am of the opinion that the notice to appear refers to an Assignment Court being held on August 17, 2001 to set a date for hearing the applicant's appeal.
[40] Reasons
Subsection 69.4(5) of the Immigration Act, supra states in part that the Appeal Division shall forthwith give written reasons if reasons are requested by either party within ten days after having been notified of the disposition of the appeal. No written reasons or a request for written reasons are contained in the record. In the circumstances of this case, I find that the lack of reasons is not a reviewable error.
[41] Subsection 69.4(2) of the Immigration Act, supra grants the Appeal Division sole and exclusive jurisdiction to hear and determine all questions of law and fact that may arise in relation to the refusal to approve an application for landing made by a member of the family class. Subsection 77(4) of the Immigration Act, supra provides the Appeal Division with the authority to dispose of an appeal, brought by a sponsor, by dismissing it. In my view, the Appeal Division had jurisdiction to dismiss the applicant's appeal.
[42] The applicant was given notice that his appeal could be dismissed if he failed to attend at Assignment Court. Both the applicant and his counsel acknowledge knowing about the date ahead of time. The notice to appear indicated that the appeal hearing could be scheduled ahead of time by telephoning the Appeal Division prior to the Assignment Court date. This is not something the applicant did.
[43] The applicant submits that the Appeal Division's order refers to the appeal as having "come on for hearing". This was not the case as the August 17, 2001 date was only for the purpose of setting a date for hearing the appeal. The applicant argued that the Appeal Division may not have dismissed the appeal had it correctly stated that the purpose of the Assignment Court was to set a hearing date for the appeal. I do not agree as the notice scheduling the Assignment Court date specifically states that if the applicant fails to appear at the Assignment Court, the Appeal Division may dismiss the appeal.
[44] The application for judicial review is dismissed.
[45] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[46] IT IS ORDERED that the application for judicial review is dismissed.
" John A. O'Keefe"
______________________
J.F.C.C.
Toronto, Ontario
October 1, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4556-01
STYLE OF CAUSE: BECKLEY SUNDAY ADEWA
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, September 10, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Tuesday, October 1, 2002
APPEARANCES:
Peter D. Woloshyn
FOR APPLICANT
Pamela Larmondin
FOR RESPONDENT
SOLICITORS OF RECORD:
Woloshyn Associates
Third Floor
204 St. George Street
Toronto, Ontario
M5R 2N5
FOR APPLICANT
Department of Justice
Suite 3400, Box 36, The Exchange Tower
2 First Canadian Place
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021001
Docket: IMM-4556-01
BETWEEN:
BECKLEY SUNDAY ADEWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER