Date: 20040310
Docket: IMM-3984-03
Citation: 2004 FC 357
Ottawa, Ontario, this 10th day of March 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ABUL FAJAL MOHAMMED MOSTAK AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ahmed challenges a decision of a member of the Immigration and Refugee Board to declare his refugee claim abandoned. Mr. Ahmed appeared before the Board to explain why he had failed to file his Personal Information Form ("PIF") on time; i.e. within 28 days of having received it, as required by Rule 6 of the Refugee Protection Division Rules, SOR/2002-228. He said that he had been misled about the refugee claim process by an incompetent immigration consultant but had subsequently retained counsel to assist him.
[2] At a hearing on May 7, 2003, the Board gave Mr. Ahmed an opportunity to explain why his PIF was late. Mr. Ahmed attended the hearing, offered an explanation and submitted his PIF; nevertheless, the Board declared his claim abandoned. His lawyer had been unable to attend the hearing, but sent the Board a letter explaining the circumstances.
[3] At the May 7th hearing, the Board stated:
The obligation, someone like yourself seeks the protection of Canada to try to follow the rules. If I had a chance, maybe if Mr. Khan [the immigration consultant] was here and I was able to question him, perhaps there would be something he told me that would change my mind, but he's not here.
...
Well, my ruling is I am going to declare an abandonment. Your counsel will tell you you have a right to judicial review of my decision, or you can take advantage of our internal procedure and appeal my decision internally at the board. But I've heard nothing that tells me that there are exceptional circumstances in this case. The onus is on the claimant to follow the rules or provide such explanation that is satisfactory to me... (Emphasis added.)
I. Issue
[4] Mr. Ahmed argues that the Board did not proceed in accordance with the rules governing abandoned claims. He submits that the Rules require the Board to consider certain factors before declaring a refugee claim abandoned. Rule 58(3) of the Refugee Protection Division Rules says:
| Factors to consider 58. (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. |
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[5] The Rules set out factors that the Board must consider. I have no reason to question whether the Board considered the appropriate factors here. However, from the passage quoted above, it appears that the Board expected Mr. Ahmed to show "exceptional circumstances" before allowing his refugee claim to proceed. As I read the governing rule, the Board must consider the applicant's explanation, whether he has filed his paper work, whether he is ready to proceed, and "any other relevant information". No doubt, the Board will only permit a claim to go forward if the applicant's explanation for the delay is reasonable. I do not, however, see any basis for a requirement that the applicant show "exceptional circumstances". In my view, this standard exceeds that which the Rules provide.
[6] Accordingly, I will allow this application for judicial review and order a different panel of the Board to consider whether Mr. Ahmed's refugee claim should be declared abandoned.
[7] It is unnecessary for me to address Mr. Ahmed's alternative argument that the 28-day deadline offends the Canadian Charter of Rights and Freedoms, s. 7; nor is it appropriate to certify a question of general importance on that issue.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed. The matter is returned for re-hearing before a different panel of the Immigration and Refugee Board.
2. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3984-03
STYLE OF CAUSE: ABUL FAJAL MOHAMMED MOSTAK AHMED v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 4, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
APPEARANCES:
Ms. Amina Sherazee FOR THE APPLICANT
Mr. Greg George FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROCCO GALATI FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada