Date: 20040715
Docket: IMM-4885-03
Citation: 2004 FC 999
Toronto, Ontario, July 15th, 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
THIVAKA PARAMANANTHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Thivaka Paramananthan (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board") made on June 12, 2003 with written reasons provided on July 31, 2003. In that decision, the Board determined the Applicant's claim for Convention refugee status to have been abandoned.
[2] The Applicant is a 20 year old citizen of Sri Lanka. He arrived in Canada on October 15, 2002 and claimed Convention refugee status. His claim was referred to the Board on October 15, 2002. He submitted his personal information form ("PIF") within the required time. He detailed the basis of his claim in his PIF, that is in fear of arrest, torture and death by agencies in Sri Lanka including the LTTE, PLOTE and the Sri Lankan Army.
[3] The Applicant's claim was processed through the offices of the Board in Montreal and he was notified that the hearing of his claim would take place in Montreal on May 29, 2003.
[4] On May 16, 2003, the Applicant applied to have his file transferred to Toronto. By a decision dated May 27, 2003, that application was dismissed by Board member Farid Osmane.
[5] The Applicant did not appear at the hearing on May 29, 2003 nor did his counsel appear. Instead, an acquaintance of the Applicant appeared and advised the Board that the Applicant was unable to attend, due to illness. The Applicant had given the acquaintance a copy of a medical report that he had obtained from Dr. André T.H. Nguyen on May 28, 2003. The Applicant had seen Dr. Nguyen on May 28, 2003 following his arrival in Montreal, by bus from Toronto. This report was submitted to the Board on the Applicant's behalf.
[6] At the hearing on May 29, 2003, the Board issued a "Notice to Appear Abandonment of a Claim for Refugee Protection". This notice was given to the acquaintance to be provided to the Applicant. This notice advised that an "Abandonment Hearing" would be held on June 12, 2003 in Montreal at 8:00 a.m.
[7] The Applicant appeared at the hearing, together with counsel. He testified and explained the reason for his non-attendance on May 29, 2003. The Board, consisting of Member Farid Osmane, questioned the Applicant and then made an oral decision, declaring the Applicant's claim to have been dismissed.
[8] The Applicant argues that the Board erred by failing to consider relevant factors in making its decision, in particular the Applicant's action in filing his claim and PIF in a timely manner, his actions in retaining and instructing counsel, and his readiness to proceed with the hearing of his claim on June 12.
[9] In my opinion, the Board has acted unreasonably in declaring the Applicant's claim abandoned. There was no evidence of any intention on his part to do so. The question of such intention is critical; see Mangat v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1301.
[10] As well, this Board erred in considering the Applicant's unsuccessful request for a transfer of venue in deciding the question of abandonment. That request for a transfer had already been decided and by the same Board member. It was an improper, irrelevant consideration in the abandonment hearing.
[11] The application is allowed and the motion is remitted for re-determination by a differently constituted Board. The Applicant may submit the factual evidence concerning his illness to the new Board. There is no question for certification arising.
ORDER
The application is allowed and the motion is remitted for re-determination by a differently constituted Board. The Applicant may submit the factual evidence concerning his illness to the new Board. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4885-03
STYLE OF CAUSE: THIVAKA PARAMANANTHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 14, 2004
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
APPEARANCES:
Mr. Jackie Esmonde FOR THE APPLICANT
Ms. Matina Karvellas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Roach, Schwartz & Associates
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040715
Docket: IMM-4885-03
BETWEEN:
THIVAKA PARAMANANTHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER