Date: 20041210
Docket: IMM-10407-03
Citation: 2004 FC 1726
Ottawa, Ontario, December 10, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
SHAMS AFROZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Refugee Protection Division of the Immigration and Refugee Board found that the refugee claims of Shams Afroz and his family had been abandoned because they failed to file Personal Information Forms (or 'PIFs') within the 28-day time period provided for in the Refugee Protection Division Rules. Mr. Afroz now seeks judicial review of that decision, asserting that the Board made a dramatic change to its policy regarding the stringency with which the PIF deadline was to be enforced. According to Mr. Afroz, this change was made without adequate notice to refugee claimants and their counsel, resulting in a breach of natural justice.
[2] Mr. Afroz further submits that the Board should have had regard to the Board's own delay in producing copies of his port of entry notes.
[3] Finally, Mr. Afroz argues that the Board erred by failing to consider the compelling nature of his claim in deciding whether the claim should be allowed to proceed, notwithstanding the late filing of his PIF.
Chronology of Events
[4] Mr. Afroz and his family arrived in Canada on March 11, 2003. Originally from Pakistan, the family resided in the United States for almost two years before coming to Canada. An application for refugee protection was made on arrival, and the family was provided with PIFs for completion. In accordance with the Refugee Protection Division Rules, the completed PIFs were to be filed with the Board by April 8, 2003.
[5] The family did not look for a lawyer to assist them with their refugee claims for several weeks after arriving in Canada. According to Mr. Afroz's wife, one of their children was ill, and the family was preoccupied with things like finding a place to live and figuring out how to buy food.
[6] Ultimately, the family retained the services of Max Berger to assist them with respect to their claims. By letter dated April 3, 2003, Mr. Berger requested that the family be afforded a three-week extension in which to file their PIFs. The reason cited for this request was a delay in securing legal aid.
[7] In this letter, Mr. Berger also sought disclosure of the port of entry notes.
[8] An extension of time was granted, with the PIFs now being due on or before April 29, 2003. No PIFs were filed by that date, however, nor was a further extension of time requested. As a result, the Board scheduled an abandonment hearing for May 26, 2003. On May 23, 2003, the family's completed PIFs were filed with the Board.
The Board'sDecision
[9] An abandonment hearing was held on May 26, 2003. After it came to light that the Board had failed to appoint a designated representative for the family's children, a de novo hearing was scheduled for October 23, 2003.
[10] Mr. Afroz and his wife attended the October 23, 2003 hearing with Mr. Berger. After what Mr. Berger subsequently described as a "very full, fair and detailed opportunity to show cause", the Board found that the family had failed to demonstrate that they were pursuing their claims with the seriousness and diligence required under the circumstances.
[11] The Board observed that the family's circumstances were not exceptional. Indeed, unlike many refugee claimants, they were familiar with the North American lifestyle, having lived in the United States since May of 2003. Further, both Mr. Afroz and his wife were reasonably proficient in the English language.
[12] The Board also noted that it had taken 73 days for the family to submit their PIFs. Even though the family had asked for, and been granted, an extension of time, they had still failed to file the forms in a timely fashion. As a result, the Board concluded that their refugee claims had been abandoned.
[13] With respect to the alleged change in Board policy regarding the late filing of PIFs, the Board adopted the reasoning in an earlier Board decision in X.V.Z. (Re) [2003] R.P.D.D. No. 44, RPD, TA3-03499. Mr. Berger was also counsel of record in that case. In X.V.Z. (Re), the Board rejected counsel's submissions that a sudden change to Board policy, without sufficient notice, resulted in a breach of natural justice. The Board found that refugee applicants and their counsel were always told of the requirements that PIFs be filed within the 28-day period prescribed in the Board's Rules. This message was reinforced through the publication of notices in LexChange (a case management bulletin published by the Toronto Region of the Board), and through an information session put on by the Board for members of the immigration Bar in March of 2003.
[14] In X.V.Z. (Re), the Board specifically addressed the claim that there had been a sudden change in the Board's policy with respect to the enforcement of the time limit. According to the Board, there had never been a policy that the abandonment process would be suspended as long as a completed PIF form was filed prior to the abandonment hearing. Rather, the presiding member would examine all of the circumstances of the case before him or her, and determine whether cause existed for the claim not to be found to have been abandoned.
[15] Similarly, in Mr. Afroz's case, the Board rejected the argument that there had been a sudden change in Board policy in May of 2003, when the Board centralized the abandonment function into a single 'Central Processing Unit'. According to the Board, the policy of strict adherence to the 28-day time limit for filing PIFs was adopted at the time that the new Immigration and Refugee Protection Act came into force in June of 2002.
Standard of Review
[16] The central issue in this case is one of natural justice or procedural fairness. Such questions are reviewed against a standard of correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174.
Analysis
[17] Although he does not actually use the term, Mr. Afroz's procedural fairness argument essentially invokes the doctrine of legitimate expectation.
[18] The past practice of an administrative decision-maker can give rise to the legitimate expectation that this practice will be followed in a specific case. As such, the doctrine of legitimate expectation is recognized as a category of interest protected by the duty of fairness: See D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998), at p.7-41and following.
[19] However, for the doctrine of legitimate expectation to apply, the conduct giving rise to the expectation must be clear, unambiguous and unqualified. (Brown and Evans, at p.7-43).
[20] With this in mind, it is necessary to closely examine the evidence that was before the Board with respect to what Mr. Afroz says was the past practice of the Board to suspend the abandonment process as long as a completed PIF form was filed prior to the abandonment hearing.
[21] The only real evidence before the Board on this point was an affidavit from Lani Gozlan. Ms. Gozlan was not counsel before the Board, but is representing Mr. Afroz in this Court. This puts Ms. Gozlan in the position of arguing on the basis of her own evidence, contrary to Rule 82 of the Federal Court Rules. However, no objection has been made to this, and I have considered the affidavit in my deliberations.
[22] Ms. Gozlan's affidavit is based on information obtained from Mr. Berger. Ms. Gozlan deposes that in the 14 years that Mr. Berger has practised immigration law, he has had several hundred files sent for abandonment hearings. In over 95% of these cases, refugee claimants were able to show cause why the claims should not be found to have been abandoned.
[23] Ms. Gozlan goes on to say that although the Board has repeatedly publicized its intention to strictly adhere to the 28-day filing requirements for PIFs, it only began to do so in practice in May of 2003.
[24] Before the Board, Mr. Berger argued that although the Board had repeatedly stated that the 28-day period would be strictly adhered to, his experience was that, in reality, the practice of the Board in at least 95% of cases was to suspend the abandonment process, as long as the claimant's completed PIF was filed at or before the abandonment hearing.
[25] The Board then put Mr. Berger on notice that it intended to use its own specialized knowledge regarding Board practice with respect to the abandonment of refugee claims. According to the presiding member, the Board's Centralized Processing Unit was established in the Spring of 2003 in order to ensure that claims were treated in a consistent manner. The creation of the Unit did not, however, coincide with any change to the Board's policy with respect to the enforcement of the 28-day time limit.
[26] On the application for judicial review, the respondent filed an affidavit from Joyce Budnark in an attempt to clarify the practice of the Board in this regard. Ms. Budnark is the Registrar of the Toronto region of the Immigration and Refugee Board.
[27] According to Ms. Budnark, neither the Refugee Protection Division nor its predecessor, the Convention Refugee Determination Division, ever had a policy whereby the late filing of a PIF prior to or at the abandonment hearing was sufficient, in and of itself, to avoid the claim being declared to have been abandoned. Ms. Budnark deposes that the practice is, and has always been, that the panel must consider all of the circumstances of the individual case at an abandonment hearing, to decide if the exercise of discretion is merited so as to allow the case to continue.
[28] While acknowledging that in the past, relatively few cases were held to have been abandoned solely because the PIF was filed late, Ms. Budnark expressly denies that there was ever a policy that a claim would not be held to have been abandoned as long as the PIF was filed with the Board at or before the abandonment hearing.
[29] Ms. Budnark also reviews in her affidavit all of the various times that Mr. Afroz was reminded of the need to file his PIF within the 28-day period provided for in the Rules.
[30] Ms. Budnark also outlines the various steps taken by the Board to ensure that counsel were fully aware of the need to comply with the time lines set out in the Rules. In addition to the LexChange publication previously referred to, Ms. Budnark deposes that the Board held three different information sessions in March, May and July of 2003, to which counsel regularly appearing before the Board were invited. At each session, Board personnel reiterated the need for refugee claimants to comply with the time lines in the Rules.
[31] Finally, Ms. Budnark addresses the current practice before the Board, stating that there is no policy or practice now in effect whereby the late filing of a PIF will automatically result in refugee claims being declared to have been abandoned. The Board's practice continues to be that at an abandonment hearing, the panel must examine the circumstances of each individual case in accordance with the criteria set out in Rule 58 (3) of the Rules, in order to decide whether to exercise their discretion, and admit the PIF late.
[32] In support of this contention, Ms. Budnark has provided statistical information from the Board which demonstrates that, during the period in which Mr. Afroz's abandonment hearing took place, only 4% of cases where the PIF was filed late were declared to have been abandoned solely on this basis.
[33] As noted at the outset of this analysis, in order for the doctrine of legitimate expectation to apply, the party claiming the benefit of the doctrine must demonstrate the existence of a clear, unambiguous and unqualified past practice on the part of the administrative decision-maker in question. In my view, Mr. Afroz has failed to do so here.
[34] Mr. Berger and Ms. Gozlan contend that in the past, in over 95% of the cases where a PIF was filed out of time, the case would be allowed to continue, as long as the completed form was filed with the Board at or before the abandonment hearing. This, of course, suggests that in approximately 5% of cases, claims were found to have been abandoned, notwithstanding the fact that a completed PIF had since been filed.
[35] In my view, if the Board had a policy such as that suggested by Mr. Afroz's counsel, one would expect to see 100% of cases allowed to continue, notwithstanding the late filing of a PIF, as long as the PIF was filed with the Board at or before the abandonment hearing.
[36] The fact that cases were not automatically allowed to continue in such circumstances tends to confirm Ms. Budnark's understanding that there was no firm policy in place in this regard, and that each case had to be examined by the panel at an abandonment hearing on its own merits, in accordance with the Board's Rules.
[37] Further, the statistical evidence before me does not bear out Mr. Afroz's claim that there has been a fundamental change in policy on the part of the Board.
[38] It will be recalled that Ms. Budnark deposes that in the period between September and December of 2003, only 4% of claims were found to have been abandoned solely because the claimant had failed to file his or her PIF within the time prescribed in the Rules.
[39] Mr. Berger's own experience with the past practice of the Board was that the number of cases that were found by the Board to have been abandoned notwithstanding the late filing of a PIF was something less than 5%.
[40] I have no way of knowing why the claims referred to by Mr. Berger were found to have been abandoned, notwithstanding the fact that a claimant had filed his or her PIF out of time. As a result, I cannot safely compare Mr. Berger's 5% figure to Ms. Budnark's 4% number and conclude from that that the percentage of claims declared to have been abandoned by the Board has not changed appreciably over time.
[41] That said, in order to establish that he had a legitimate expectation that it would be sufficient for him to file his PIF at or before his abandonment hearing in order to preserve his rights, the burden is on Mr. Afroz to establish the past policy practice of the Board clearly, unambiguously and unqualifiedly. He has not done so here.
[42] As a result, on the basis of the record before me in this case, I am not persuaded that there has been a denial of procedural fairness in the way that Mr. Afroz's refugee claim was handled.
The Failure of the Board to Consider the Merits of Mr. Afroz's Refugee Claim
[43] Mr. Afroz also submits that the Board erred in failing to have regard to the merits of his refugee claim. According to Mr. Afroz, the compelling nature of his claim should have persuaded the Board to exercise its discretion in his favour.
[44] The respondent says that this is not a proper consideration at an abandonment hearing. According to the respondent, the proper test is whether the refugee claimant has demonstrated an ongoing intent to pursue his or her claim.
[45] I do not need to decide this issue here. Even if I were to accept that I should have regard to the merits of Mr. Afroz's refugee claim, there is nothing before me that would assist in demonstrating how he proposes to overcome the fact that he lived in the United States for almost two years before coming to Canada, without seeking asylum in that country.
Port of EntryNotes
[46] Finally, Mr. Afroz asserts that the Board should also have taken into account the Board's own delay in disclosing the notes taken of his interview at the port of entry. I do not accept this submission.
[47] The law is clear that a claimant cannot delay filing his PIF simply because he or she has not yet obtained the port of entry notes. Further, counsel for Mr. Afroz never mentioned any concern with respect to the production of the port of entry notes at the second abandonment hearing. Instead, the delay in filing Mr. Afroz's PIF was attributed solely to difficulties in securing Legal Aid.
[48] Given that the timeliness of the disclosure of the port of entry notes was not raised before the Board, the Board can hardly be faulted for not taking this issue into account in its decision.
Conclusion
[49] For these reasons, the application is dismissed.
Certification
[50] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious questionof general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-10407-03
STYLE OF CAUSE: SHAMS AFROZ v. MCI
DATE OF HEARING: December 2, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER AND ORDER: Honourable Madam Justice Mactavish
DATED: December 10, 2004
APPEARANCES BY: Ms. Lani Gozlan
For the Applicant
Ms. Patricia McPhee
For the Respondent
SOLICITORS OF RECORD: Ms. Lani Gozlan
Barrister & Solicitor
1033 Bay Street
Suite 207
Toronto, Ontario.
M5S 3A5.
For the Applicant
Ms. Patricia McPhee
Solicitor General of Canada
For the Respondent