OTTAWA, Ontario, August 1st, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review by the Applicant, Lakhbir Singh, a citizen of India who had claimed refugee status upon his arrival in December 2004.
[2] In this motion for judicial review the applicant is challenging the decision of the Refugee Protection Division of the Immigration and Refugee Board which had declared Mr. Singh's claim as being abandoned.
[3] The initial date scheduled for the hearing of his refugee application was November 23, 2005. On that day the applicant failed to appear; his counsel was present as well as a friend who advised the Chairperson that Mr. Singh had been admitted to the hospital the day before. The Board then advised both counsel and the friend that the matter was rescheduled for December 12, 2005 and that the applicant would be provided with an opportunity to show cause why his claim to convention refugee status should not be declared abandoned.
[4] The parties were also advised that the applicant should produce a medical certificate to justify his inability to attend on November 23, 2005.
[5] During the course of discussion between the Chairperson and counsel for the applicant on November 23, 2005, it was initially suggested that the matter proceed on December 12, 2005 as a full refugee hearing. It was determined by the Chairperson and counsel for the applicant that they both had other matters proceeding on that day and, as a result, it was agreed that the parties would appear at 8:45 a.m. simply to determine whether or not the claim should be considered abandoned; a show cause hearing.
[6] On December 12, 2005, Mr. Singh was present along with his counsel. The Chairman immediately requested a medical certificate from the applicant in order to substantiate and justify his failure to appear on November 23. The applicant testified that he had requested a medical report on the 8th day of December 2005 but was advised by the attending physician that he would not provide him with any document; that he proceed to the medical records office and obtain from them an attestation that he had been hospitalised on November 22, 2005 for a few days. He was advised by the medical records attendant that such a document would take three to four weeks. The applicant nevertheless produced for the panel a document dated December 5, 2005 issued by the Emergency Department of the hospital in which it is indicated that he had been seen by an emergency physician on the 22nd of November, 2005 and was billed $125.00 for the services. This document also indicated that if he had refugee status to send a copy of his citizenship and immigration identification form. He also produced a medication prescription form duly signed by the attending physician also dated November 22, 2005. Part of the documents submitted was his request to Immigration Canada dated September 20. 2005 indicating that he had misplaced his medical ID and seeking a replacement since he was having medical problems, it indicated he had high blood pressure and diabetes problems.
[7] The Chairman was not satisfied with these documents and declared the claim abandoned.
[8] The Court is somewhat offended by the rather inequitable and unkind treatment that this refugee claimant was subjected to. It was evident that the Chairperson was constrained with respect to time since he himself admitted at the hearing on the 23rd of November, 2005 that he could not proceed with a full refugee claim hearing on December 12, 2005. And, it is rather strange to note that this Chairperson admits that he is not very highly thought of in the immigrant indian community in the area and I quote the presiding member's own words:
"You see, sir, one of your colleagues told me, he told us a few weeks ago while he testifying in his own case, that when the people of your community see that I am the one who is presiding the case, all the members of your community try to go to the hospital in order not to pass in front of me. So it seems to be a pattern of the members of the members of your community to do everything possible in order for them not to pass in front of me..."
[9] It is evident that this presiding member is not very highly thought of or respected among a certain class of refugee claimants.
[10] There is no doubt that it is entirely in his discretion to determine whether or not a claim should be determined abandoned. It appears that in this particular case we have an individual who required an interpreter, who produced some documents to justify his absence and corroborate his allegation of illness but who, undoubtedly, was going to be given a curt hearing at 8:45 in the morning of December 12, 2005.
[11] Counsel for the Crown cited numerous authorities supporting her position that the abandonment order must be upheld. I have reviewed these authorities and note that in every case except one the Chairperson had determined the matter to be abandoned since the applicants had not appeared on one or in many cases two occasions scheduled for the hearing of their refugee claim. One of the authorities submitted by counsel for the Crown was Ali v. Canada(Minister of Citizenship and Immigration) [2005] F.C.J. No. 1150, where Justice VonFinckenstein wrote at paragraph 10:
"The test for determining whether a claim has been abandoned is whether the refugee claimant's conduct amounts to a lack of intention to pursue the claim with diligence."
[12] It appears somewhat evident that this Chairperson had no intention of proceeding with a refugee claim hearing when he determined on November 23, 2005 that he had very little time at his disposal on December 12, 2005.
[13] In the present case we have some medical evidence to justify the applicant's absence on November 23, 2005 and it pas patently unreasonable for the Chairperson to find the claim abandoned since the applicant did not request a medical certificate soon enough. At no time did the Chairperson even enquire of the applicant if he wished to abandon his claim or pursue it further.
[14] When dealing with abandonment claims, this Court has clearly stated that the question the Board must ask itself is whether or not the Applicant truly intended to abandon his claim; see Ahamad v. Canada (Minister of Citizenship and Immigration) (2000), 4 Imm. L.R. (3d) 91, [2000] F.C.J. No. 289 (QL) at paragraph 32 and Revich v. Canada(Minister of Citizenship and Immigration) (2004), 44 Imm. L.R. (3d) 129, 2004 F.C. 1064.
[15] Rule 169 of the (IRPR) states that a Board can deem a claim abandoned for the following reasons:
| 169. An application for protection is declared abandoned (a) in the case of an applicant who fails to appear at a hearing, if the applicant is given notice of a subsequent hearing and fails to appear at that hearing; and
(b) in the case of an applicant who voluntarily departs Canada, when the applicant's removal order is enforced under section 240 or the applicant otherwise departs Canada.
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169. Le désistement d'une demande de protection est prononcé : a) dans le cas où le demandeur omet de se présenter à une audience, lorsqu'il omet de se présenter à une audience ultérieure dont il a reçu avis; b) dans le cas où le demandeur quitte volontairement le Canada, lorsque la mesure de renvoi est exécutée en application de l'article 240 ou lorsqu'il quitte autrement le Canada.
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[16] In addition to the above mentioned rule, Rule 58 of the Refugee Protection Division Rules (RPDR) states that:
| 58. (1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information. Opportunity to explain (2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity (a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or (b) in any other case, by way of a special hearing after notifying the claimant in writing.
Factors to consider (3) The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings. Decision to start or continue the proceedings (4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay.
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58. (1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé si, à la fois : a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire; b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées. Possibilité de s'expliquer (2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité : a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire; b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit. Éléments à considérer (3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire. Poursuite de l'affaire (4) Si la Section décide de ne pas prononcer le désistement, elle commence ou poursuit l'affaire sans délai. |
[17] It is evident that this applicant did not contravene Rule 169 of the IRPR. A review of Rule 58 indicates that the applicant should be given an opportunity to explain why his application should not be declared abandoned and be given an opportunity to justify his conduct. The rule further goes on to explain that in the event that the Division decides not to declare the claim abandoned, it must start or continue the proceeding without delay. It is obvious that this was not the Chairperson's intention when he even scheduled this matter for a show cause hearing.
[18] The applicable standard of review in abandonment cases is reasonabless simpliciter and I am not satisfied that the reasons given by the Chairperson could withstand a probing examination.
JUDGMENT
For the foregoing reasons, the application for judicial review is allowed. The matter will be returned for a full refugee hearing before a panel which shall exclude the member who presided on November 23, 2005 and December 12, 2005.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7796-05
STYLE OF CAUSE: Lakhbir Singh v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: July 25, 2006
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Me Jean-François Bertrand
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| Me Lynne Lazaroff
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SOLICITORS OF RECORD:
| Me Jean-François Bertrand Montreal, Quebec
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| John H. Sims, Q.C. Deputy Attorney General of Canada Montreal, Quebec
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