PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is a Shia Muslim from Pakistan who alleges that he suffered persecution at the behest of the Sipa Sahaba of Pakistan (SSP). He fled Pakistan for the United States in 1997 and remained there until December 2002. In January of 2004, he submitted a refugee claim in Canada. In this application, he seeks judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board wherein his application to have his claim for refugee protection reopened was denied. I have concluded that the application is without merit and will accordingly be dismissed.
[2] The applicant's hearing regarding his claim was scheduled for January 12, 2005. On January 7th, he injured his back at his workplace. His doctor advised him to stay away from work for a week and take prescribed medication. On January 10th, the applicant sent a letter to the RPD along with a copy of the doctor's note and requested a short postponement.
[3] On January 12th, the applicant retained new counsel. His new counsel's legal assistant appeared before the RPD to inform it of the applicant's circumstances. The RPD set a show cause hearing for February 25, 2005, and directed that medical evidence, confirming the applicant's inability to attend the January 12th hearing, or a WCB report, verifying that the injury occurred at work as alleged, be obtained and submitted.
[4] On February 25, 2005, the applicant and his counsel were present at the show cause hearing. The applicant produced a doctor's note confirming that he was "unwell for work on 7/1/05 presently able to return". The applicant's counsel indicated that he (counsel) was not well and would not be able to proceed with the merits of the claim. A short adjournment was requested (for the merits) because the applicant did not want to proceed without the benefit of counsel. Counsel was present for (and participated fully in) the abandonment hearing.
[5] Following a fairly lengthy hearing (the transcript is 28 pages), the RPD member declared the claim abandoned. The member provided detailed oral reasons for the decision which included, among other things, the applicant's failure to provide the requested information regarding his inability to attend on January 12th. The member found that, even accepting the doctor's note concerning an injury on January 7th, by January 12th, the applicant was post injury by some four days and was able to go back to work in three days. The member concluded, for the various reasons given, that the failure to attend on January 12th was an "intentional decision for the purposes of delaying the hearing in order to have [the applicant's] hearing take place when the rest of [his] family's claims would be heard sometime in the latter part of this year, given that the claims only just got filed".
[6] The applicant did not seek leave to apply for judicial review of the abandonment decision. His arguments on this application constitute a recitation of his dissatisfaction with the abandonment decision. The applicant's approach confuses the role of the RPD on an application to reopen a claim with the role of the RPD on an abandonment hearing.
[7] The application to reopen is made pursuant to Rule 55 of the Refugee Protection Division Rules, SOR/2002-228. Rule 55(4) provides:
| 55. (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
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55. (4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle.
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[8] I regard it as settled law that, absent a breach of natural justice, a refugee claim cannot be reopened: Ali v. Canada (Minister of Citizenship and Immigration) (2004), 258 F.T.R. 226 (F.C.); Shahid v. Canada(Minister of Citizenship and Immigration) (2004), 266 F.T.R. 109 (F.C.); Ahmad v. Canada(Minister of Citizenship and Immigration) (2005), 25 Admin. L.R. (4th) 220 (F.C.); Wackowski v. Canada (Minister of Citizenship and Immigration), 2004 FC 280; Nazifpour v. Canada(Minister of Citizenship and Immigration), 2005 FC 1694. My decisions in Krishnamoorthy v. Canada(Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 126, Lin v. Canada(Minister of Citizenship and Immigration), 2005 FC 512 and Ntim v. Canada(Minister of Citizenship and Immigration), 2005 FC 1389 are to the same effect.
[9] Insofar as the applicant takes issue with the findings of the RPD member on the abandonment proceeding, the proper remedy is to seek leave to apply for judicial review of that decision.
[10] When the applicant applied to the RPD to reopen his claim, his submissions were comprised of arguments that were appropriate only if the RPD were conducting a judicial review or an appeal of the abandonment decision. The RPD correctly noted that its function is not to consider issues that should have been raised in a judicial review of the abandonment hearing. Rather, the review is "restricted to whether the board, at the abandonment hearing, failed to observe the principles of natural justice. A re-consideration of the evidence does not fall within that mandate".
[11] The RPD member (on the application to reopen) concluded, in relation to the abandonment hearing, that the applicant's counsel was present with the applicant, addressed the issue of abandonment, and "was responsive to the issue at hand". There being no breach of natural justice at the abandonment hearing, the application to reopen was denied.
[12] At the hearing of this application, the applicant's counsel suggested that the breach of natural justice occurred because the RPD member ought to have accepted the doctor's note that was produced and that it was "unfair" for the member to have required more. The RPD is the master of its own house. Provided that it complies with the duty of fairness and the rules of natural justice, it is not the court's function to meddle in the manner in which it conducts its proceedings. It was open to the RPD member to request better information than the applicant proffered regarding his absence on January 12th. The member provided notice that better evidence was required well in advance of the show cause hearing. It was, in fact, provided on January 12th. Moreover, the doctor's note did not solve the applicant's problem in any event. The member clearly indicated that, even if the note were accepted, it was not sufficient explanation for his absence.
[13] A review of the transcript discloses that the RPD member, at the abandonment hearing, provided the applicant with more than ample opportunity to show cause why he was unable to attend the hearing scheduled for January 12th. The applicant not only failed to satisfy the member that he was unable to attend, the member concluded that the applicant was purposely attempting to delay the matter. This constitutes a finding of fact that was legitimately arrived at, on the evidence.
[14] After reviewing that evidence, the RPD, on the application to reopen, concluded that there had been no breach of natural justice. The denial of the application to reopen is sustainable on any standard of review, including that of correctness.
[15] Counsel did not suggest a question for certification and none arises.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT the application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4927-05
STYLE OF CAUSE: SALIM RAMZAN ALI LAKHANI
v.
MCI
PLACE OF HEARING: Toronto, Ontario
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| Mak Sultan
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| Mr. Lorne McClenaghan |
SOLICITORS OF RECORD:
| Mr. Mak Sultan Barrister and Solicitor Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada |