Date: 20041117
Docket: IMM-6461-03
Citation: 2004 FC 1607
BETWEEN:
ASIF MOHAMMAD SHAHID
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of Immigration and Refugee Board member M. Then (the "Board_) dated July 22, 2003 (the _Decision_) in which the Board dismissed the applicant_s motion to re-open his refugee claim. The claim had earlier been declared abandoned. The Decision was on a form letter and it read _Your Application is Dismissed_. However, the Tribunal Record disclosed that the member actually decided the case on July 15, 2003, and her reasons read, _no breach of natural justice_ (the _Reasons_). After receiving the Decision, the applicant asked for the Reasons. They were provided some months later.
[2] The applicant raises the following issues:
(a) are reasons required?
(b) if so, are the Reasons adequate?
A) THE REQUIREMENT FOR REASONS
[3] Section 169 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") provides that reasons must be given for final decisions. The section says:
| 169. In the case of a decision of a Division, other than an interlocutory decision:
(a) the decision takes effect in accordance with the rules;
(b) reasons for the decision must be given;
(c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing;
(d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister;
(e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
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169. Les dispositions qui suivent s'appliquent aux décisions, autres qu'interlocutoires, des sections :
a) elles prennent effet conformément aux règles;
b) elles sont motivées;
c) elles sont rendues oralement ou par écrit, celles de la Section d'appel des réfugiés devant toutefois être rendues par écrit;
d) le rejet de la demande d'asile par la Section de la protection des réfugiés est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e) les motifs écrits sont transmis à la personne en cause et au ministre sur demande faite dans les dix jours suivant la notification ou dans les cas prévus par les règles de la Commission;
f) les délais de contrôle judiciaire courent à compter du dernier en date des faits suivants: notification de la décision et transmission des motifs écrits. |
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[4] Accordingly, the question is whether a decision not to re-open a refugee claim that has been declared abandoned is a final or interlocutory decision. I emphasize the word decision because sometimes there is confusion about whether it is the nature of a motion or the nature of a decision that is being characterized. In this case, it is the nature of the Decision that is at issue.
The Respondent's Submissions
[5] The respondent relied on a statement by Justice Evans (as he then was) in Faghihi v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 249. He said:
[28] I am prepared to assume for present purposes that a motion to reopen a decision is an "interlocutory matter" because, if granted, it will not be a final disposition of the case. It will simply open the gate to a redetermination of the claim by the Refugee Division in accordance with section 69.1.
[6] This decision was upheld by the Federal Court of Appeal, see: (2001), 274 N.R. 358, 2001 F.C.A. 163. However, the Court did not address Justice Evans' conclusion that a motion to re-open is an interlocutory matter.
[7] The respondent also noted that, earlier this year, Justice Mosley dealt with whether reasons were required to support a negative decision on an application to re-open a refugee claim in Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, [2004] F.C.J. No. 1394. There, he said, at paragraph 19, that he saw no reason to depart from Justice Evans' decision in Faghihi, supra. In that regard he observed:
If the applicant had been successful, it would have reopened his refugee claim and allowed it to proceed on its merits. The denial of such an application merely confirms what was already the status quo, that is, that his refugee claim had been declared abandoned. It is interlocutory, and therefore, the requirements of section 169 or IRPA do not come into play.
Discussion
[8] In my view, the respondent's cases are not helpful because it is clear that, both Justice Evans and Justice Mosley were considering the nature of the motion rather than the decision.
[9] In Reebok Canada v. Canada (Deputy Minister of National Revenue, Customs and Excise) (1995), 179 N.R. 300, [1995] F.C.J. No. 220, the Federal Court of Appeal considered whether a decision was final or interlocutory. The decision was made by a judge of the Federal Court Trial Division who granted leave to appeal to the Court of Appeal from a decision of the Canadian International Trade Tribunal. The Court held that the decision granting leave was interlocutory because it did not determine substantive rights but merely enabled the appellant to have its substantive rights determined by the Court of Appeal.
[10] Against this background, the question is how to characterize a decision not to re-open a refugee claim. Such a decision means that a refugee claimant's substantive rights will never be determined and that the proceedings are at an end. For these reasons, I have concluded that a negative decision on a motion to re-open is a final decision and that reasons are required by subsection 169(b) of the IRPA.
B) THE ADEQUACY OF THE REASONS
[11] On a motion to re-open a refugee claim the Board is required by rule 55(4) of the Refugee Protection Division Rules, SOR/2002-228 (the "RPD Rules") to consider whether, in a refugee claim that has been decided or abandoned, there was a failure to observe a principle of natural justice.
[12] Rule 55 reads as follows:
| 55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned.
(2) The application must be made under rule 44.
(3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister.
(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. |
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55. (1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement.
(2) La demande est faite selon la règle 44.
(3) Si la demande est faite par le demandeur d'asile, celui-ci y indique ses coordonnées et en transmet une copie au ministre.
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle.
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[13] Counsel for the applicant argues that principles of natural justice include more than issues of procedural fairness. She says that they include issues such as the failure to apply the correct legal test during an abandonment hearing. With regard to this case, she says that the applicant's claim should have been re-opened because, during his abandonment hearing (at which the applicant was present and represented by counsel), the Board did not consider the diligence with which the applicant had pursued his refugee claim. In my view, although diligence was relevant at the abandonment hearing, it became irrelevant after the refusal of leave to commence an application for judicial review of the abandonment decision.
[14] A motion to reopen cannot be used to argue issues arising during the abandonment proceedings which were properly the subject of the application for leave. (In this case an alleged failure to consider diligence.) In my view, the sole issue on the motion to re-open is whether the applicant received procedural fairness. In that regard the applicant's motion to re-open listed eleven grounds. Ten dealt only with diligence which, as I have said, was no longer relevant. Only the last ground purported to deal with natural justice although, in reality, it just framed the diligence issue in another manner. It read:
11. The Board's failure to place appropriate weight to the Applicant's actions, diligence and behaviour amounts to a patent breach of the rules of natural justice.
[15] The adequacy and formality of the reasons will depend on the circumstances of each case. In this case, since the practice is to use a form letter to convey a decision, it seems reasonable to require that, in cases denying motions to re-open, the letter contain both the decision and the reasons. The reasons, while they may be brief, should demonstrate that an individual claimant's concerns about failures of natural justice were considered.
[16] In this case, however, as indicated above, no conduct amounting to a breach of natural justice was, in fact, alleged. In these unusual circumstances, the Reasons which were eventually provided to the applicant were adequate.
CERTIFIED QUESTION
[17] No question was posed for certification.
CONCLUSION
[18] For the reasons given above, this application for judicial review will be dismissed.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
November 17, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6461-03
STYLE OF CAUSE: ASIF MOHAMMAD SHAHID
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: SEPTEMBER 1,2004
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE SIMPSON
APPEARANCES:
APPLICANT: KARINA THOMPSON
RESPONDENT: NEETA LOGSETTY
SOLICITORS ON THE RECORD:
ROBERT BLANSHAY
TORONTO, ONTARIO
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
TORONTO, ONTARIO
FOR RESPONDENT