Date: 20000918
Docket: IMM-5716-99
BETWEEN:
Omer Reu PEREZ LOPEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (CRDD), dated November 8, 1999, in which it was determined that the applicant's claim for Convention refugee status had been abandoned. Leave to commence this application for judicial review was granted on June 9, 2000.
Background
[2] The applicant, Omer Reu Perez Lopez, is a Mexican citizen. He arrived in Canada on June 14, 1999 and claimed asylum on June 20, 1999 in Vancouver. He was determined eligible on July 22, 1999 to have his claim put before the CRDD. Sometime after, the applicant received a "refugee kit," which included the eligibility determination and a personal information form (PIF). The applicant is unsure of the exact date he received this package, but believes it to be either August 22 or 23, 1999.1
[3] On September 14, 1999, the applicant applied for legal aid. He had gone to legal aid earlier that month, but had arrived late and the friend he had arranged to act as an interpreter was not able to assist him.
[4] On September 17, 1999, the CRDD issued to the applicant a Notice to Appear for an Abandonment of a Convention Refugee Claim; a hearing date was set for October 26, 1999.
[5] The applicant finally met with counsel and an interpreter on October 6, 1999. The applicant's counsel submitted the applicant's PIF on October 21, 1999, along with a cover letter requesting an extension of time for filing the now late PIF, pursuant to rule 38 of the CRDD Rules.2 The cover letter reads, in part, as follows:
| We request that the time for filing Mr. Perez Lopez's P.I.F. be extended pursuant to Rules 27, 38 and 40 of the C.R.D.D. Rules. It appears that the claimant was determined to be eligible on 22 July, 1999 but was not actually served with the PIF at that time. The date that he actually received the PIF is unclear. It was in his possession when he applied for legal aid on 14 September, 1999. He indicates that prior to that he did not understand the time limit for filing the completed PIF. His case was referred to our office on 16 September, 1999. We have proceeded to deal with the PIF as expeditiously as available time would permit. It is requested that the time for filing the PIF be extended to the date the CRDD receives this letter and the PIF. |
| Since the PIF is now filed, it is also requested that the abandonment hearing scheduled for 26 October, 1999 be cancelled. The delay in filing the PIF arose from Mr. Perez Lopez lack of understanding of the time limit involved. He did not even intend to abandon his refugee claim. In the circumstances, there would appear to be no purpose served in proceeding with the abandonment hearing.3 |
[6] The applicant states that the abandonment hearing was scheduled for 9:00 a.m. on October 26, 1999, but was not actually called until 2:30 p.m.4 His counsel had another appointment and was unable to remain for the hearing. No adjournment was requested.
[7] A brief show cause hearing was held before a panel. The applicant was questioned about his failure to file a completed PIF within the 28 day period required by the Rules.5 The panel was not satisfied with the applicant's explanation, and at the end of the hearing the panel declared the applicant's claim for Convention refugee status to have been abandoned:
| The Claimant has failed to comply with subsection 46.03(2) of the Act and Rule 14(2)(b)(iii) of the Rules. The claim of Omer Reu Perez Lopez is therefore declared abandoned pursuant to section 61.1(6) of the Immigration Act.6 |
Applicant's Position
[8] The applicant contends that the CRDD erred in law by declaring the applicant's claim to have been abandoned pursuant to subsections 46.03(2) and 69.1(6) of the Immigration Act.7 The applicant argues that the hearing Notice refers to paragraph 69.1(6)(b), which is the only ground upon which he had to show cause. Subsection 46.03(2) refers expressly to a claimant providing information within the manner and period "prescribed by the Rules." While subsection 69.1(6) refers to subsection 46.03(2), it refers only to the requirement to file information, and does not expressly refer to the manner and timing prescribed by the Rules. The applicant argues that this means that under paragraph 69.1(6)(b), the CRDD must concern itself only with cases where there has been a complete failure to file the required information and not cases where the information has been filed late or in the wrong manner. According to the applicant, he did file his PIF, albeit late, along with a request for an extension of time, and therefore, paragraph 69.1(6)(b) is no longer applicable.
[9] The applicant submits that the panel erred by not considering the applicant's application, pursuant to rule 38, for an extension of time to file the PIF. This request was contained in the cover letter accompanying the completed PIF, which was submitted on October 21, 1999. The applicant argues that the CRDD must consider and decide the application for an extension before deciding whether a claim has been abandoned.
[10] The applicant contends that even if the panel could be said to have implicitly considered the rule 38 application by considering the applicant's diligence in complying with Rule 14(2)(b)(iii), the panel erred by failing to apply the test contained within rule 38, viz., whether the extension will provide for a "full and proper hearing."
[11] Finally, the applicant contends that the CRDD erred in finding that the applicant did not show up for a pre-arranged meeting with legal aid in early September 1999, and that this erroneous finding influenced its conclusion that the applicant had not been diligent in meeting his responsibilities. The applicant submits that this finding ignored his evidence that he had been late in getting to the meeting because he did not know where the legal aid office was located.
Respondent's Position
[12] The respondent contends that because the panel had determined that there was no justifiable reason for the delay, there was no reason to grant the applicant an extension of time to file the PIF.
[13] The respondent relies on the CRDD's Practice Notice, dated May 5, 1998, which is a notification to counsel that the CRDD will require strict adherence to the prescribed time frames set out in the CRDD Rules for filing PIFs.8 The notice states that applications for extensions of time for filing a PIF will be considered if they are made within 28 days of the PIF being served on the claimant, and that extensions of time will only be granted if there is a justifiable reason for the delay. Any applications for extensions of time received after 28 days will only be considered at the show cause hearing.
[14] The respondent maintains that the CRDD did not err when it found that the applicant did not show up for a pre-arranged meeting with legal aid. The applicant testified that he missed his appointment since he arrived late because he was unable to find the legal aid building. The respondent contends that the panel's finding that the applicant did not show up for the meeting is not inconsistent or contrary to the applicant's evidence.
Relevant Legislation and Rules
[15] Subsection 46.03(2) of the Immigration Act provides as follows:
46.03(2) A person whose claim is referred to the Refugee Division pursuant to section 46.02 or subsection (1) shall, in the manner and within the period prescribed by rules made under subsection 65(1), provide the Refugee Division with such information as is required by the rules.
46.03(2) La personne don't le cas est déféré à la section du statut en vertu de l'article 46.02 ou du paragraphe (1) est tenue de fournir à cette section les documents prévus par les règles mentionnées au paragraphe 65(1), dans le délai et selon les modalités qui y sont également precisées.
[16] Subsection 69.1(6) of the Act provides as follows:
69.1(6) Where a person who claims to be a Convention refugee
(a) fails to appear at the time and place set by the Refugee Division for the hearing into the claim,
(b) fails to provide the Refugee Division with the information referred to in subsection 46.03(2), or
(c) in the opinion of the Division, is otherwise in default of the claim,
the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned and, where it does so, the Refugee Division shall send a written notice of its decision to the person and to the Minister.
69.1(6) La section du statut peut, après avoir donné à l'intéressé la possibilité de se faire entendre, conclure au désistement dans les cas suivants:
a) l'intéressé ne comparaît pas aux date, heure et lieu fixés pour l'audience;
b) l'intéressé omet de lui fournir les renseignements visés au paragraphe 46.03(2);
c) elle estime qu'il y a défaut par ailleurs de sa part dans la poursuite de la revendication. Si elle conclut au désistement, la section du statut en avise par écrit l'intéressé et le ministre.
[17] Rules 14 and 38 of the CRDD Rules9 state:
14(2) The information referred to in subsection (1) shall be
| (b) filed |
| (iii) within 28 days after the day on which the form is served on the person concerned pursuant to paragraph 6(1)(c), or within 35 days after that day where the information is filed by prepaid regular mail. |
| 38. The Refugee Division may, on application by a party or a refugee hearing officer made in accordance with Rule 27 either before or after a time limit set out in these Rules has expired, shorten or extend the time limit, in order to provide for a full and proper hearing. |
Analysis
[18] Subsection 46.03(2) of the Act contains three elements: the claimant is to provide the Refugee Division with the information required by the Rules, in the manner and period set out in those same Rules. Paragraph 69.1(6)(b) refers to subsection 46.03(2), but does not articulate its elements, except for referring to the "information referred to" in that section. The applicant contends, in effect, this means that subsection 46.03(2) is only partially incorporated by reference into paragraph 69.1(6)(b).10
[19] I am satisfied that the applicant's interpretation of paragraph 69.1(6)(b) cannot stand. That paragraph refers to the information to be provided in subsection 46.03(2), and according to that section, the information is to be provided in a particular form and manner. By referring to subsection 46.03(2) and not expressly limiting its reference, paragraph 69.1(6)(b) must necessarily encompass all of that section within its own ambit. As it currently stands, the applicant has not provided the CRDD with the required information in the prescribed manner. Although the applicant refers to his late "filing", at this stage without an extension of time, the material cannot be said to have been filed; rather, it has been submitted. It is not before the CRDD and cannot be unless or until an extension of time is granted. Therefore, the panel did not err in holding the abandonment show cause hearing on the basis of paragraph 69.1(6)(b).
[20] With regard to the applicant's argument that the panel erred by failing to consider his request for an extension of time, it does not appear that the panel expressly contemplated the requested application for an extension. No reference is made to it in the reasons and the applicant was not questioned about it during the brief show cause hearing.
[21] Paragraph 69.1(6)(b) of the Act incorporates by reference subsection 46.03(2). That subsection deals with a claimant's obligation to provide information in a form and manner prescribed by rules made under subsection 65(1), thus incorporating by reference subsection 65(1) and the CRDD Rules. Paragraph 65(1)(c), in turn, empowers the Deputy Chairperson of the CRDD to make rules governing, inter alia, the information that may be required under subsection 46.03(2), as well as the manner and time in which it must be provided. Turning to the rules, rule 14(2)(b)(iii) sets out the 28 day period, while rule 38 provides for any variations on that prescribed period. Thus, these rules are incorporated by reference within both subsection 46.03(2) and paragraph 69.1(6)(b).
[22] Accordingly, the panel should not have restricted the scope of its hearing solely to the issue of whether rule 14(2)(b)(iii) was complied with, but should also have enquired into rule 38, following the applicant's application for an extension. Of course, the panel does not have to grant a time variation upon application; rule 38 employs the permissive "may" as opposed to the mandatory "shall."
[23] It may be argued that the panel implicitly considered the applicant's application for an extension of time by questioning him as to why he failed to file his PIF in a timely manner and ultimately determining that he had abandoned his claim; however, it is not apparent from the panel's reasons that it turned its mind to the issue of whether an extension should be granted in order to provide for a full and proper hearing, as articulated in rule 38. According to the CRDD's Practice Notice regarding timely filing of PIFs, such applications for extensions, received outside of the 28 day time frame, will be considered at the show cause hearing. In the instant case, while the panel did entertain submissions from the applicant as to why he did not file his PIF on time, nowhere in its reasons, or in the transcript of the show cause hearing, is there mention of the applicant's application for an extension of time, pursuant to rule 38.
[24] The applicant's contention that the panel's decision is based on an erroneous finding of fact is without merit. In its decision, the panel states that part of the reason for the delay in getting legal aid was because the applicant did not show up for a pre-arranged meeting. This is true: the applicant was late for the meeting, and while it could be argued that he did indeed show up, it certainly was not at the arranged time and his lateness was the cause or basis for the applicant's interpreter friend to be unavailable for the meeting. Consequently and because of the applicant's lateness, the meeting could not be held. The conclusion which the panel drew from this, that the applicant was not diligent in meeting his responsibilities, is not unreasonable and should not be interfered with.
Conclusion
[25] I am satisfied this application for judicial review should be allowed on the basis that the panel did not expressly consider or determine the applicant's application for an extension under rule 38.
[26] The applicant filed the following questions for certification:
| 1. Does the Convention Refugee Determination Division have jurisdiction under paragraph 69.1(6)(b) of the Immigration Act to declare a refugee claim to be abandoned where the claimant has provided the prescribed information to the CRDD in the Personal Information Form, but has done so after the 28days referred to in subsection 46.03(2) of the Act and Rule 14 of the CRDD Rules? |
| 2. Where a claimant has filed with the CRDD a written application under CRDD Rules 27 and 38 for an extension of time in which to file a Personal Information Form, is the CRDD required to expressly consider and decide that application before it can declare the claim to be abandoned for late submission of the Personal Information Form? |
| 3. In deciding whether or not a refugee claim has been abandoned, where there is a pending application under Rule 38 for an extension of time to file the Personal Information Form, is the CRDD required to consider the question of whether granting the extension would provide for a "full and proper hearing" of the claim? |
| 4. Does the question stated by the Court in Zamal Ahamad v. MCI, 25 February 2000, Court File No. IMM-5626-98, amount to a test that the CRDD must expressly apply in abandonment proceedings, namely: "Whether in all of the circumstances and taking into account all the relevant facts, did the applicant's behavior evidence, in clear terms, a wish or intention not to proceed with his claim?" |
[27] In the case of Kirk Meagell Grandison v. M.C.I, A-332-00, August 25, 2000 (C.A.), Mr. Justice Strayer has this to say as to the purpose of subsection 83(1) of the Immigration Act:
| Subsection 83(1) was intended generally to make final the decision of the Trial Division, but allowed for the hearing of appeals on important issues which transcended the particular case. The obvious intent was to allow this Court to deal with, but only with, such issues as required to give the Trial Division general a guidance where otherwise there might be inconsistencies between the judges of the Trial Division on a "serious question of general importance". This clearly implies that appeals were not to be taken on issues peculiar to a given case such as procedural matters. |
[28] With the above as the test, should the above questions submitted by the applicant for certification be certified?
[29] In that I have decided to allow the present application for judicial review, I am satisfied that it is not necessary for me to determine whether the questions submitted for certification should be certified.
[30] The application for judicial review is allowed and the matter is returned for a new hearing before a differently constituted Board in accordance with these reasons.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
September 18, 2000
__________________1Applicant's Record, applicant's affidavit, p. 9; hearing transcript, p. 32.
2Applicant's Record, pp. 14-26. Note also that the applicant refers incorrectly to the abandonment hearing date as October 21, 1999 in paragraph 10 of the applicant's memorandum.
3Applicant's Record, pp. 14-15.
4Applicant's Record, Notice to Appear, p. 13; the Notice states that the hearing is to start at 9:00 a.m. "or as soon as possible after that time."
5Applicant's Record, hearing transcript, pp. 30-34.
6Applicant's Record, pp. 7 (written reasons), 34 (oral reasons). Note that the panel incorrectly refers to ss. 61.1(6) which does not exist; it appears that they likely meant to refer to ss. 69.1(6); the Applicant, in his memorandum, believes this to be a mere defect in form, akin to a typo, and not determinative of the matter.
7R.S.C. 1985, c. I-2 [hereinafter the "Act"].
8Respondent's Book of Authorities, Tab A3.
9The power to make such rules comes from ss. 65(1) of the Act.
10However, somewhat disingenuously, the applicant argues later on that ss. 46.03(2) is indeed incorporated by reference into para. 69.1(6)(b) for the purpose of the second issue.