Date: 19990125
Docket: IMM-1195-98
BETWEEN:
CARLOS FERNANDO ALEGRIA-RAMOS, LORENA SUSANA
MIRANDA AGUILERA, DIANA LORENA ALEGRIA MIRANDA,
CARLOS FERNANDO ALEGRIA MIRANDA,
OLGA DEL CARMEN AGUILERA CRUZ,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBE, J.
[1] This application is for the judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board of Canada (the "Board"), dated February 24, 1998, declaring that the claims of the applicants have been abandoned.
[2] The applicants are citizens of Chile. The original hearing of their application for refugee status was scheduled for June 23, 1997. However the Minister of Citizenship and Immigration (the "Minister") requested a postponement of six months and the matter was rescheduled for October 16, 1997. The hearing was then adjourned to January 20, 1998 due to the main applicant's medical condition. Prior to the hearing of January 20, 1998, the main applicant indicated to his counsel that he would not be able to attend the hearing due to his state of anxiety at the prospect of testifying about his past experiences in Chile. Consequently, counsel advised the Board accordingly.
[3] The applicants appeared before the Board in Vancouver on February 24, 1998 after receiving a notice of the hearing to explain their failure to attend the hearing on January 20, 1998. In the course of that show cause hearing, the Board asked each of the adult applicants to explain their reasons for not attending the hearing on January 20, 1998. The main applicant answered that it was due to his state of extreme anxiety. The other applicants, who were all dependent on the main applicant, indicated that they failed to appear on the ground that the main applicant was unable to attend. They assumed that if the main applicant was unable to attend, the hearing would simply be rescheduled and there was no reason for them to attend. The other applicants are the wife, children and mother-in-law of the main applicant.
[4] It appears that the applicants took several steps that would indicate that they fully intended to pursue their claim. Their personal information forms were submitted on time and according to the regulations. In preparation for the first hearing, the psychological assessment of the main applicant was completed as requested by the Board. All the claimants attended the hearing in Vancouver on June 23, 1997. The main applicant provided a medical note regarding his absence from the hearing on October 16, 1997. He attended an additional psychological assessment that was provided to the Board on December 29, 1997. The main applicant notified his counsel that he felt he could not attend the January 20, 1998 hearing and the latter notified the Board.
[5] There is ample evidence on the file available to the Board indicating that the main applicant suffers from Post Traumatic Stress Disorder, as evidenced by a psychological assessment prepared by a clinical psychologist and confirmed by a psychiatrist.
[6] Nevertheless, the presiding member of the Board intoned in his oral decision that "very reluctantly we have come to the conclusion that we have no alternative but to declare all your claims abandoned. But we have compassion for all of you and we fully understand.".
[7] It is obvious that the Board's consideration of the applicants' intention to pursue their claims was made without regard to the totality of the available evidence and constitutes a reviewable error. Section 69.1(6) of the Immigration Act provides that where a person who claims to be a Convention refugee fails to appear at the time and place set by the Refugee Division, "the Refugee Division may, after giving the person a reasonable opportunity to be heard, declare the claim to have been abandoned ...". Thus, the Board had the discretion not to declare the claim to have been abandoned when faced with the evidence that lay before it.
[8] The medical evidence was uncontested and the Board never expressed any concerns regarding the credibility of the applicants. Therefore the Board had an alternative to declaring the claims abandoned. It could have moved on forthwith with the hearing of the applications for refugee status or, if time did not permit, the Board could have set another date. The Board could not reasonably conclude that "there seems to be a lack of interest on the part of the claimants to pursue their claims.".
[9] The Board, having fettered its discretion, erred in law. Its decision is quashed. The matter is referred to a Board composed of other members for a full hearing of the claims.
[10] It is common ground that there is no question of general importance to be certified.
(Sgd.) "J.E. Dubé"
J.F.C.C.
Vancouver, British Columbia
25 January 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1195-98
STYLE OF CAUSE: CARLOS FERNANDO ALEGRIA-RAMOS ET AL.
v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR ORDER OF DUBE, J.
dated January 25, 1999
APPEARANCES:
| Mr. Peter Golden for the Applicants |
| Ms. Larissa Easson for the Respondent |
SOLICITORS OF RECORD:
Mr. Peter Golden for the Applicants
| Barrister and Solicitor |
207 - 2750 Quadra Street
Victoria, BC
V8T 4E8
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada