Date: 20040812
Docket: IMM-5380-03
Citation: 2004 FC 1111
BETWEEN:
GABRIELLA MARGARITA BONDIUK ANDREOLI
EMANUEL ERNESTO PASCUAL BONDIUK
ERNESTO FELIX PASCUAL MARTINO
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Gabriella Margarita Bondiuk Andreoli (the applicant), her husband and their four-year-old child are from Uruguay. They do not speak English or French. The applicant claims that she received serious threats in Uruguay and that her husband was beaten. They came to Canada on July 13, 2002, and they claimed refugee status the same day.
[2] The applicant retained counsel from legal aid and they worked with an interpreter to fill out the Personal Information Form ("PIF"). The interpreter had told the applicant that she had to advise her of all changes of address, if applicable.
[3] Near the end of July 2002, the applicant and her family went before the panel because they had not received any projected hearing dates. The panel refused to receive them because the husband was seriously ill.
[4] In August 2002, the applicant and her family moved and, following the advice of their counsel and the interpreter, they gave their change of address to the interpreter as soon as they moved. The interpreter then told the applicant that she would take care of everything and that she would inform the panel.
[5] When the applicant realized that she still had not received any news, she contacted her counsel in the beginning of May 2003. She learned that the panel had convened a hearing on April 15, 2003, and another on April 28, 2003, and that neither counsel nor the interpreter had been able to reach her. The panel had then issued an order of abandonment. The judicial review of that decision is before this Court.
IMPUGNED DECISION
[6] The panel explained that in view of its limited jurisdiction in reopening hearings, it could not allow this application unless the rules of natural justice had been violated. The panel said that the applicants had still been properly summoned and that the explanations given by their counsel to explain their absence from the hearings were unacceptable, because the applicant signed the declaration in her PIF and that PIF had been countersigned by the interpreter. This declaration clearly indicates that the interpreter communicated perfectly with the applicant and took the trouble to properly explain the contents of that entire form to her. Further, with respect to the applicants' contact information in the PIF, it is expressly stated that the applicant had to immediately inform the panel of any change of address.
ISSUE
[7] Did the panel err in refusing the application to reopen the hearing?
APPLICANTS' SUBMISSIONS
[8] The applicants point out that it is accepted that a refugee claim is very important for the claimants and involves fundamental rights, i.e. the right to life and security of the person. Hence, they point out that that the applications must be reviewed attentively. Here, the applicants claim that the panel wrongly assumed that the interpreter had translated all of the PIF, including the provision saying that the claimant has to advise the panel of any change of address, which was not the case.
[9] Further, the applicants point out that the case law as well as subsection 69(4) of the Immigration Act ( 2001, c. 27) (Act) indicate that all minor claimants must be assigned a representative when abandonment proceedings are contemplated. The panel's failure to do so amounts to an error vitiating the decision to dismiss the application.
[10] Finally, the applicants explain that the changes in the new Act caused them undeniable problems in terms of application and adjustment. They submit that it would be reasonable to give them the benefit of the doubt about their allegation that they had never been told that they had to give their change of address.
RESPONDENT'S SUBMISSIONS
[11] The respondent argues that the panel does not have the jurisdiction to reopen the claim unless the rules of natural justice have been violated. It is the principle of fonctus officio which is stated in subsection 55(4) of the Refugee Protection Division Rules.
[12] The respondent contends that in this case the panel determined that all necessary measures had been taken to ensure that the applicants would have the opportunity to be heard. Further, the respondent argues that this Court has already held that it is the claimant's responsibility to show enough interest in his or her own fate and to make sure that situations such as this one do not occur by choosing an active approach (See Luo v. Canada (M.C.I.) [1995] F.C.J. No. 160 and Forgacs v. Canada (M.C.I.) (2001) 202 F.T.R. 193).
[13] With respect to designating representative for the child before declaring the claim abandoned, the respondent argues that rule 15(2) of the Refugee Protection Division Rules specifically provides that the panel cannot name a representative when the claim of a minor is joined to the claim of an adult, as is the case here.
ANALYSIS
Standard of judicial review
[14] Lemieux J., in Ahamad v. Canada (Minister of Citizenship and Immigration) (2000) 3 F.C. 109 wrote this:
L'Heureux-Dubé J., in Baker, supra, built upon that Court's decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R 982 (amended reasons at [1998] 1 S.C.R. 1222). Taking into account the analysis in both of these cases, the lack of a privative clause, the object of the judicial review (question of law vs. fact-finding expertise) and the purpose of the provision leads me to conclude that the appropriate standard of review of the CRDD's decision the applicant had abandoned his refugee claim is one of reasonableness simpliciter.
Analysis
[15] The question is whether, in all of the circumstances and taking into account all relevant facts, the applicants' behaviour established in clear terms a wish or intention not to proceed with their claim: Ahamad, supra.
[16] In order to assess a case such as this, it is absolutely paramount to opt for a contextual approach and to avoid the mire of procedural dogma. I refer to the words of the Honourable Mr. Justice Pigeon in Hamel v. Brunelle, [1977] 1 S.C.R. 147, 156., where he very aptly wrote that "procedure [should] be the servant of justice not its mistress."
[17] In this case, the evidence establishes that the interpreter forgot to advise the panel and that it was this error alone that led to the dismissal of the applicants' claim. We must also remember that the applicants do not speak French or English, which made them particularly vulnerable and dependant on their interpreter. Finding that they were the authors of their own misfortune amounts to punishing them for the carelessness of a third party, which is not only unfair in purely human terms, but also disregards the purpose of the Act. In fact, subsection 3(2) of the Act states:
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3(2). The objectives of this Act with respect to refugees are |
3(2). S'agissant des réfugiés, la présente loi a pour objet : |
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(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; |
a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; |
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(b) to fulfil Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement; |
b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d'affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; |
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(c) to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution; |
c) de faire bénéficier ceux qui fuient la persécution d'une procédure équitable reflétant les idéaux humanitaires du Canada; |
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(d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; |
d) d'offrir l'asile à ceux qui craignent avec raison d'être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un groupe social en particulier, ainsi qu'à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; |
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(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings; |
e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d'une part, de l'intégrité du processus canadien d'asile et, d'autre part, des droits et des libertés fondamentales reconnus à tout être humain; |
[18] In Aslam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 620, I said:
Mr. Aslam may or may not be a refugee entitled to international protection. That is an open question until the Board makes a final determination. Until then, he is entitled to argue that he is a Convention refugee, or a person otherwise in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Are we to send Mr. Aslam back to his country when he may well have a well-founded fear of persecution and be in danger of torture, cruel or unusual punishment or death simply because his immigration consultant had to abandon him and because his new lawyer was already booked?
[19] The same reasoning applies in this case. We can also ask ourselves what harm could possibly be caused to the respondent if a hearing on the merits of the claim were to take place.
[20] I am well aware of the abundant case law from this Court to the effect that the applicants are responsible for their files and cannot use their own wrongdoing as a means to justify fatal omissions, procedural though they may be. But it must be understood that in this case the applicants were not negligent and merely trusted their interpreter, on whom rests the entire procedural error.
[21] In my opinion, to dismiss this application would be to disregard the principals of natural justice.
[22] I issue this order keeping in mind the words of Lord Denning in Doyle v. Olby (Ironmongers) Ltd. (1969) 2 All E.R. 119, who at page 121 stated:
We never allow a client to suffer for the mistake of his counsel if we can possibly help it. We will always seek to rectify it as far as we can. We will correct it whenever we are able to do so without injustice to the other side. Sometimes the error has seriously affected the course of the evidence, in which case we can at best order a new trial.
[23] This is not a case where counsel poorly pleaded their case on the merits. Rather, it involved a matter that had never been heard because of an administrative error which occurred at counsel's office.
"Sean Harrington"
Judge
Ottawa, Ontario
August 12, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET IMM-5380-03
STYLE OF CAUSE: GABRIELLA MARGARITA BONDIUK ANDREOLI, EMANUEL ERNESTO PASCUAL BONDIUK, ERNESTO FELIX PASCUAL MARTINO
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL ,QUEBEC
DATE OF HEARING: JULY 20, 2004
REASONS FOR ORDER: HARRINGTON J.
DATE OF REASONS: AUGUST 12, 2004
APPEARANCES:
Marie José L'Ecuyer FOR THE APPLICANTS
Evan Liosis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marie José L'Ecuyer FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada