Date: 20040225
Docket: IMM-1582-03
Citation: 2004 FC 280
Toronto, Ontario, February 25th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
ADAM WACKOWSKI, EWA WACKOWSKA and
DONAT WAKOWSKI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Adam, Ewa and Donat Wachowski are a Roma family from Poland, who sought refugee protection in Canada. The Refugee Protection Division of the Immigration and Refugee Board (the Board or IRB) determined that the applicants had abandoned their refugee claim. The applicants then moved to have their refugee claim reopened. This request was refused. The applicants now seek to have that decision set aside, asserting that they were denied natural justice in relation to their abandonment hearing.
Background
[2] The applicants came to Canada on August 20, 2001. One month later, they filed their Notice of Claim for Refugee Status with the Board in Ottawa. The applicants did not file any Personal Information Forms ("PIFs") with the Board, and nothing further happened with respect to their refugee claim at that time.
[3] In the Spring of 2002, the applicants moved to Toronto. In April, they contacted counsel, who provided the applicants with PIFs to fill out. In June of 2002, the applicants' lawyer contacted the Ottawa office of the IRB to request that the applicants' case be transferred to Toronto. The applicants did not return the completed forms to their counsel, nor were the forms filed with the Board.
[4] On June 27, 2002, the applicants attended an interview at Citizenship and Immigration Canada in Etobicoke, where they were provided with a further set of PIFs for completion. The PIF forms include instructions directing the applicants to return the completed forms within 28 days, failing which their claims may become the subject of abandonment proceedings.
[5] The applicants did not inform their lawyer about the interview or provide her with the documentation that they received at the interview. In his affidavit, the principal applicant deposes that he did not think that it was important to do so.
[6] On September 25, 2002, the Board sent a written notice to the applicants, advising them that an abandonment hearing had been scheduled for October 28, 2002. The applicants did not appear at the hearing, and the Board declared that the applicants' claims had been abandoned.
[7] The applicants say that they moved in October of 2002. The affidavit of the principal applicant states that when returned to his former address to pick up his mail " in late October" he found the letter from the IRB. It is not clear from the affidavit as to whether this was before or after the October 28, 2002 hearing date. The principal applicant says that he forgot to tell his counsel about the September 25 letter from the Board, because he was busy. By November 12, 2002, the applicants had been in contact with their counsel, and on that day counsel advised the Board of the applicants' new address.
[8] The applicants then applied to have their refugee claims reopened. On February 12, 2003, the applicants received notice of the IRB's decision denying their application.
The Board's Decision
[9] The reasons of the Board state:
There has not been a denial of natural justice. IRB notified claimant[s] of no PIF abandonment hearing at their last known address - claimants acknowledge this. Claimants failure to appear is the claimants' own fault, not the IRB's. Decision is final. Application dismissed.
Issue
[10] Was there a breach of natural justice in relation to the way in which the applicants' abandonment hearing was conducted?
Analysis
[11] I have reviewed the jurisprudence referred to by the applicants. Each of the cases cited relates to an abandonment decision rather than a decision to reopen proceedings that have previously been declared to have been abandoned. As such, the cases are distinguishable from the present situation.
[12] The Board may reopen the hearing into a refugee claim where an abandonment hearing was conducted in a manner inconsistent with the rules of natural justice: Serrahina v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 622; see also Rule 55 (4) of the Refugee Protection DivisionRules, SOR/2002-228.
[13] The applicants submit that they were denied natural justice in connection with their abandonment hearing, because they were never given the right to be heard, as they were not aware of the hearing until after the hearing had taken place. I am satisfied that there was no denial of natural justice on the part of the Board in this case, and that the applicants were entirely the authors of their own misfortune.
[14] The history of this matter discloses that the applicants have demonstrated a singular lack of diligence in advancing their refugee claims. Further, Rule 4 (3) of the Refugee Protection Division Rules impose an obligation on refugee applicants to keep the Board apprised of their whereabouts. In this regard I adopt the comments of Justice Kelen in Serrahina, supra, where he noted that the Board cannot be expected to keep track of the whereabouts of claimants.
[15] Although the Board was aware that the applicants were represented by counsel, there is nothing in the Refugee Protection Division Rules that stipulates that service of documents must be effected on counsel as well as on the claimants themselves.
[16] While counsel urges me to consider the fact that the applicants' ability to understand English may be limited, I note that there is nothing in the affidavit of the principal applicant, which was written entirely in English, to suggest that he had any difficulty understanding the documents that he received.
[17] Assuming, without deciding, that there may be some obligation on the Board to provide reasons for a decision not to reopen a refugee claim following a finding of abandonment, I am satisfied that having regard to the nature of the decision in issue in this case, the reasons given by the Board for refusing to reopen the applicants' refugee claims were sufficient.
Certification
[18] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1582-03
STYLE OF CAUSE: ADAM WACKOWSKI, EWA WACKOWSKA and
DONAT WAKOWSKI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 24, 2004
REASONS FOR ORDER
AND ORDER BY : MACTAVISH J.
DATED: FEBRUARY 25, 2004
APPEARANCES:
Ms. Nancy Lam
FOR APPLICANTS
Ms. Mielka Visnic
FOR RESPONDENT
SOLICITORS OF RECORD:
Nancy Lam
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040225
Docket: IMM-1582-03
BETWEEN:
ADAM WACKOWSKI, EWA WACKOWSKA and DONAT WAKOWSKI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER