OTTAWA, Ontario, April 4th, 2006
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for Judicial Review of a decision of the Immigration and Refugee Board, Refugee Protection Division (RPD or Board), dated June 27, 2005, wherein the Board determined that Mr. Enahoro's application for a reopening of his abandoned refugee claim was dismissed, via Notice of Decision.
[2] The Applicant is a 30 year old citizen of Nigeria. He arrived in Canada at Pearson International Airport on May 28, 2002 and made a claim for refugee protection on that same day, based on a well-founded fear of persecution in Nigeria due to his failure to join the Ogboni Secret Cult.
[3] After the Applicant's father died on February 27, 2002, the Applicant was supposed to replace his father as Chief of Benin Kingdom. He was told by the elders that during the initiation process, human sacrifices were involved; the Applicant declined to participate in the ceremonies. The Applicant was kidnapped and placed into solitary confinement so that he could change his mind about participating in these ceremonies. He escaped and was declared a missing person in his village. He knew that if he was captured by the Police he would be handed over to the elders for money and would be forced into participating in ceremonies involving in human sacrifices.
[4] This judicial review is not about the merits of the refugee claim.
[5] A refugee hearing date was set for September 27, 2004, communicated to the Applicant in a letter dated August 10, 2004. The Applicant allegedly became ill a day before his hearing and his lawyer sought an adjournment on September 26, 2004. The Board did not respond to the request for an adjournment. The Applicant did not submit any evidence to corroborate the fact that he was sick.
[6] An abandonment hearing (show cause) was set for May 24, 2005 by the Board, without consulting the Applicant's lawyer. The Applicant's lawyer was unavailable that day as he was teaching at the Bar Admission Course in Torontoon May 24, 2005.
[7] The Applicant's lawyer sent three letters to the Board in an unsuccessful attempt to reschedule the abandonment hearing. The requests to reschedule were refused.
[8] On May 24, 2005, the Applicant attended the abandonment hearing by himself. He explained that he was ill on September 26, 2004 and could not attend the refugee hearing on September 27, 2004. The Applicant told the Board that he could not proceed without counsel as he has little education and a poor command of the English language.
[9] The Board deemed the claim to be abandoned. No medical report was provided to corroborate the illness and the Board questioned the timing of his absence.
[10] The Applicant submits that the Board's decision is patently unreasonable.
[11] The Applicant raised two main issues in his Memorandum of Argument:
1. Was there a denial of justice when the Board declared the Applicant's claim abandoned?
2. Did the Board unjustly deny the Applicant's application to reopen his refugee claim?
[12] The Applicant submits that the standard of review for the Board's decision stating that the Applicant abandoned his refugee claim is reasonableness simpliciter.
[13] I am satisfied that the standard of review is patent unreasonableness, as determined by the four part pragmatic and functional approach cited in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 CSC 19. An abandonment proceeding, made by a specialized Board, is an entirely fact based analysis and is owed a high degree of deference.
1. The dismissal to re-open the refugee claim is seriously flawed
[14] The Applicant argues that the decision of the Board dismissing the application to reopen is seriously flawed and should not be allowed to stand because it is based on erroneous findings of fact which were made by the Board when it declared the Applicant's refugee claim abandoned.
[15] The Applicant refers to the original set of reasons issued by the Board wherein the Board erroneously indicated that the Applicant's lawyer was present at his abandonment hearing. The Applicant alleges that the amended reasons which correctly state that his lawyer was not present were not communicated in time to the Board member who considered the application to reopen the Applicant's refugee claim.
[16] I do not believe this submission has any merit. The Board issued a correction on June 3, 2005, on the same day that the original reasons were issued. The decision dismissing the motion to reopen was made on June 27, 2005 - nothing filed leads to me believe that the Board did not have the amended reasons stating that the Applicant's lawyer was not present at the show cause hearing.
2. The Board breached the rules of procedural fairness when it declared the refugee claim abandoned
[17] The Applicant mentions two separate incidents that constitute a breach of the right to be heard:
Incident 1 - September 26, 2004
[18] On September 26, 2004, the Applicant's lawyer faxed to the Board a simple letter for adjournment as his client was "sick" was unable to attend his refugee hearing scheduled the following day. The Applicant believes that the Board ignored the fact that the Applicant was sick and arbitrarily decided to set the matter for an abandonment hearing to show cause why the Applicant had not appeared at the September 27, 2004 refugee hearing. The Board made no effort to respond to this request for adjournment.
Incident 2
[19] Subsequently, the show cause hearing was set by the Board on May 24, 2005, without consulting the Applicant's lawyer. The Applicant's lawyer had a prior engagement to teach at the Bar Admission Course at the Law Society of Upper Canada. The Applicant's lawyer wrote the Board three times to state that he is not available to attend on May 24, 2005.
[20] The Board has no obligation to consult the Applicant's lawyer to determine the most preferable date for a hearing. The Applicant knew about this hearing from a notice dated March 30, 2005. The Board should attempt to set a date that would be convenient for counsel but is not obligated to do so.
[21] The Respondent makes three submissions:
1. Decision not to re-open refugee hearing was properly made
2. No breach of fairness when the Board declared the refugee claim abandoned
3. The Applicant has to accept his lawyer's conduct as his own
[22] Section 55 of the Refugee Protection Division Rules instructs the Refugee Division to allow an Application to reopen a claim in very limited circumstances such as a failure to observe a principle of natural justice.
[23] Section 55 is the test on an application to reopen the refugee claim. It 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.
...
(4) The division must allow the application if it is established that there was a failure to observe a principle of natural justice. |
55.(1) Le demandeur d'asile ou le minister peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une decision ou d'un désistment.
...
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle. |
[24] Therefore, in regard to the application to reopen a claim for refugee protection, the Refugee Division must allow the application "if it is established that there was a failure to observe a principle of natural justice". I do not believe that there was a failure to observe a principle of natural justice in this particular case. My reasons follow.
[25] The Applicant was not present for his first refugee hearing on September 27, 2004. He simply stated via letter from his lawyer dated September 26, 2004, that he was sick. No other precisions were added and no medical report was subsequently submitted. There is no evidence to indicate the severity of the Applicant's injury or illness. The Applicant did not state why his illness or injury had prevented him from participating at the refugee hearing. The Board could certainly have accommodated the Applicant during the hearing. The Board had absolutely no idea why the adjournment was sought, otherwise than knowing that the Applicant was generally "sick". It was reasonable for the Board to set the matter for an abandonment hearing (show cause).
[26] The Applicant's lawyer sent three letters to the Board to indicate that he could not be present at the abandonment hearing. The Board did not accommodate his request for adjournment. The requests for adjournment were repeatedly denied.
[27] On May 24, 2005, the Applicant's lawyer was teaching at the Bar Admission Course for the Law Society of Upper Canada. His lawyer knew almost two months ahead, via notice dated March 30, 2005, that the abandonment hearing was scheduled on May 24, 2005. The Applicant's lawyer did not attend this hearing and must have known that this would cause his client great prejudice. There was no evidence to suggest that the Applicant's lawyer sought another lawyer to replace him at the hearing or at the Bar Admission Course. I do not think that finding a replacement teacher for the Bar Admission Course would have been an onerous and unreasonable demand.
[28] The Board's decision not to reopen the abandoned refugee claim is reasonable and this Court cannot intervene.
JUDGMENT
[29] The application for judicial review is dismissed. No question for certification was submitted for my consideration.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4315-05
STYLE OF CAUSE: Charles Enahoro v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 29, 2006
REASONS FOR JUDGMENT: TEITELBAUM J.
APPEARANCES:
| Majekodunmi Adego (416) 746-0888
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| David Joseph (416) 952-4088
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SOLICITORS OF RECORD:
| Majekodunmi Adego 23 Westmore Drive, Suite 216 Rexdale, Ontario M9V 3Y7
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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