Docket: IMM-1817-04
Ottawa, Ontario, this 1st day of March, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
ALI SAHIR AHMAD; SAMINA SAFAR SHAIKH; ZAFAR AHMAD
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REVISED REASONS FOR ORDER AND ORDER
[1] The Applicants are citizens of Pakistan who entered Canada from the United States on February 20, 2003. The Applicants' Personal Information Forms (PIFs) were mailed to them on February 26, 2003, but were not received by the Applicants until mid-March. The Applicants were granted a fifteen day extension of time to file their PIFs. Due to problems securing counsel and medical problems suffered by the Applicant's wife, in particular, the Applicants submitted their PIFs on May 7, 2003, fifteen days after the extra time allowed after the extension was granted.
[2] The Applicants attended a show cause hearing on June 4, 2003 where they were given an opportunity to explain the delay in filing their PIFs. The Board concluded that there was no reasonable explanation for the late filing and by decision dated November 6, 2003 declared their application abandoned. The Applicants did not seek judicial review of that decision.
[3] On January 13, 2004 the Applicants sought to have their refugee protection claim reopened. The Board, in a decision dated February 11, 2004, dismissed their application. No formal decision was given but the endorsement on the record reads as follows:
Firstly, while the Notice of Abandonment is incorrect re: the date of receipt of the PIFs, this is a technicality as the actual decision correctly indicates the date to be mid-March 2003. Secondly, counsel's statement that medical reasons were cited in the March 20,2003 request for an extension as one of the grounds for the extension is not correct. The ONLY reason cited is legal aid delay. If the medical condition of the claimants presented problems, these would have been cited in the letter from counsel. Further, even the medical evidence now presented does not indicate hospitalization & there is no reason to believe the claimant could not have functioned adequately enough to complete their PIFs on time. All of the other points in the materials have been covered by the member in his decision. There has been no denial of natural justice shown in this case.
STATUTORY PROVISIONS
[4] Applications to reopen are governed by Rule 55 of the Refugee Protection Division Rules SOR/2002-228 which provides as follows:
55.(1) Application to reopen a claim - 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.
(2) Form of application - The application must be made under rule 44.
(3) Claimant's application - A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister.
(4) Factor - The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
ISSUE 1: Was the Board required to provide reasons in dismissing the Applicant's claim to reopen?
[5] The Applicants maintain that this was a final decision because no further avenues are open to them and accordingly, full written reasons are required.
[6] Whether full written reasons are required depends on whether a decision is considered final or interlocutory. Decisions regarding refusals to reopen or grant leave to appeal have always been considered interlocutory decisions. As such, they do not require full written reasons. As stated by Evans J. inFaghihi v. Canada (M.C.I.) [2000] 1 F.C 249 at para 28:
I am prepared to assume for present purposes that a motion to reopen a decision is an "interlocutory matter" because, if granted, it will not be a final disposition of the case. It will simply open the gate to a redetermination of the claim by the Refugee Division in accordance with section 69.1.
[7] This line of reasoning was also followed by Mosley J. in Ali v. Canada (M.C.I.) [2004] FC 1153.
[8] While it is thus well established that interlocutory decisions do not require written reasons, there is also a second line of argument, namely that endorsements can take the place of written reasons. In this case, the Board gave an extensive endorsement which certainly indicates the rationale of the decision maker. Therefore, the endorsement can serve as a facsimile for written reasons (see Wackowski v. Canada (M.C.I.) [2004] FC 280).
[9] On the basis of either rationale, the argument regarding lack of written reasons cannot succeed.
ISSUE 2: Did the Board err in holding there was no denial of natural justice at the underlying abandonment hearing?
[10] The Applicants argue that the Board's decision at the abandonment hearing should be reversed arguing that the Board:
a) made a decision unsupported by the evidence, and
b) applied the wrong test.
They would like me to examine the decision at the abandonment hearing on that basis.
[11] Particularly with respect to point b) they argue that the test for abandonment hearings is stated in Anjum v. Canada (M.C.I.) [2004] FC 496 at paras 27 to 29:
The IRB did not ask itself the right question. It asked whether there whether there were "extraordinary circumstances" in the case. That legal test is not found in the rules governing abandonment.
The IRB referred to the evidence being insufficient for purposes of an extension. This was an abandonment case where the inquiry must be directed at the true intention and actions of the claimant in order to conclude that the claim is abandoned. It was not a request for extension of time under Rule 6(2) which parenthetically does not impose a criterion of "extraordinary circumstances" either.
The IRB never directed its attention to the question of whether the Applicants were ready to proceed with their claim. In fact, the IRB failed to mark off its internal document, the Endorsement Form, which posed that relevant question.
[12] They further allege that in this case the Board, at the abandonment hearing, applied a different and allegedly incorrect test when it stated:
I do not find any evidence before me to reasonably explain or justify the claimants' failure to file their PIFs by the extended due date.
[13] I see no reason for acceding to the Applicants' line of reasoning. This is not a judicial review of the decision to declare the claim abandoned. This is a review of the decision not to reopen and therefore, I have to restrict my review to whether the Board at the abandonment hearing failed to observe the principles of natural justice.
[14] It has been established that the Board, when entertaining an application under Rule 53, can only deal with a failure to observe natural justice. As Mosley J. stated in Ali, supra, at paras 24 and 25:
At first blush, the wording of Rule 55 of the RPD Rules appears to permit the consideration of applications to reopen on any ground and the only factor which mandates that the decision must be a positive one for the claimant is the establishment of a breach of natural justice. However, on closer inspection I am satisfied that the correct interpretation is that applications to reopen may only be allowed where a breach of natural justice can be established.
Under the former immigration scheme, there was no express procedure permitting motions to reopen refugee claims that had been decided or ones that had been declared abandoned, however, such motions were made under Rule 28 of the former Rules, pursuant to jurisprudence such as Longia, supra, that established that the Board has inherent jurisdiction to reopen a refugee claim only where a principle of natural justice has been breached. In my opinion, such interpretation is what was intended to be codified in the new RPD Rules. I note that this interpretation of Rule 55 of the RPD Rules was recently applied by the Court in Wackowski v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 315 (F.C.) (Q.L.) at para. 12.
[15] What is before this Court is the decision not to reopen. If the Applicants had wanted a review of the decision to declare the refugee application abandoned, they should have brought an application for judicial review of that decision. They did not and are now restricted to argue that the proceedings at the hearing to reopen failed to examine the abandonment hearing through the prism of the principles of natural justice.
[16] I am supported in this view by Shahid v. Canada (M.C.I. ) [2004] FC 1607 where Simpson J. stated at paras 13 and 14:
Counsel for the applicant argues that principles of natural justice include more than issues of procedural fairness. She says that they include issues such as the failure to apply the correct legal test during an abandonment hearing. With regard to this case, she says that the applicant's claim should have been re-opened because, during his abandonment hearing (at which the applicant was present and represented by counsel), the Board did not consider the diligence with which the applicant had pursued his refugee claim. In my view, although diligence was relevant at the abandonment hearing, it became irrelevant after the refusal of leave to commence an application for judicial review of the abandonment decision.
A motion to reopen cannot be used to argue issues arising during the abandonment proceedings which were properly the subject of the application for leave. (In this case an alleged failure to consider diligence.) In my view, the sole issue on the motion to re-open is whether the applicant received procedural fairness. ..(underlining added)
[17] Similarly, in Kononov v. Canada (M.C.I.) [1999] F.C.J. No. 1121, Nadon J. (as he then was) indicated at para 7 that a motion to reopen cannot be a disguised challenge of the abandonment decision:
An application to reopen a hearing is not and cannot be an application for judicial review of the decision made on May 21, 1998 [that the claim had been abandoned]. As they did not challenge this decision, the plaintiffs could not expect to succeed on their application to reopen unless they established a denial of natural justice at the [abandonment] hearing of May 21, 1998 and this they were not able to do.
[18] The whole point of Rule 55 would be lost if issues such as applying the wrong test qualified as a denial of natural justice. In effect, there would be no practical difference between the judicial review of an abandonment hearing and a judicial review of a hearing regarding an application to reopen.
[19] In this case, the Board correctly found that at the abandonment hearing there was no denial of natural justice. A denial of natural justice is the correct consideration to be employed in an application to reopen. It is not the Board's function at a hearing for an application to reopen to consider issues that should have been raised in a judicial review application of the abandonment hearing.
CONCLUSION
[20] Given that the Applicants were not successful with either branch of their argument, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1817-04
STYLE OF CAUSE: ALI SAHIR AHMAD; SAMINA SAFAR SHAIKH;
ZAFAR AHMAD
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 17, 2005
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
APPEARANCES:
KARINA THOMPSON FOR THE APPLICANT
GORDON LEE FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROBERT I. BLANSHAY LAW OFFICE FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA