Ottawa, Ontario, March 10, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of a pre-removal risk assessment officer (Officer) dated May 26, 2005 (Decision), wherein the Officer declared the Applicant's PRRA application abandoned because of his failure to appear for two separately scheduled hearings.
BACKGROUND
[2] The Applicant, Mahmoud Chatri, is a 33-year-old citizen of Iran. He arrived in Canada on November 20, 2001, and filed a refugee claim upon his arrival at the Vancouver airport.
[3] In his claim, the Applicant alleged that he had participated in the July 2001 student demonstrations at Tehran University, and that his participation came to the attention of the Iranian authorities who issued an arrest warrant against him. Upon return to Iran, the Applicant fears being arrested and detained.
[4] The Applicant's refugee claim was rejected by the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB) on November 26, 2002. In its reasons, the CRDD found that there was insufficient evidence to conclude that the Applicant's allegation that the Iranian authorities were actively seeking him was credible.
[5] The Applicant filed a PRRA application in April 2003, adducing new evidence, including an arrest warrant and a summons for an appearance before the Revolutionary Court.
[6] This application was dismissed by a PRRA officer, on May 10, 2004. In her reasons, that officer found that the arrest warrant and court summons were forgeries, and gave them "no weight." She dismissed the application on the basis that the Applicant had not demonstrated that he faced risks on any of the grounds laid out in sections 96 or 97 of the Act.
[7] The Applicant submitted a second PRRA application in June, 2004. He adduced expert evidence attesting to the authenticity of the arrest warrant and court summons. This second PRRA application was dismissed on July 16, 2004 by a PRRA officer, who found inconsistencies in the Applicant's statements and determined that it was unlikely that his family could have obtained a copy of the arrest warrant. The officer concluded that the arrest warrant and court summons were fabrications, without directly addressing the expert evidence.
[8] The Applicant sought judicial review of the second PRRA decision. A stay of removal was granted on August 30, 2004, and in February 2005, the Respondent consented to an order directing that the Applicant's PRRA application be considered by a different officer.
[9] As part of the Officer's research into the alleged risks the Applicant was facing, she sent copies of the arrest warrant and court summons to the Canadian embassy in Tehran for analysis. The Embassy's legal counsel found that the two documents were fraudulent.
[10] The Officer sought to notify the Applicant of the Embassy lawyer's opinion, and sent him a letter on April 14, 2005 to which she attached her correspondence with the Embassy. The Officer invited the Applicant to submit any comments he might have regarding these documents by April 29, 2005.
[11] The Respondent filed two affidavits sworn by the Officer before this Court. In the first affidavit, dated September 2, 2005, the Officer states that her letter was sent to the Applicant by regular mail, and that a copy was faxed to Mr. Bediako Buahene, his counsel of record at the time. In her second affidavit, dated September 6, 2005, she states that her earlier statement was an error, and that she had sent the letter to the Applicant by registered mail. She attached the envelope and registration to her second affidavit.
[12] The Officer received no reply or comments from the Applicant in response to her letter.
[13] On April 26, 2005, the Officer wrote to the Applicant and his counsel to inform them that she required a hearing, which she scheduled for May 11, 2005. She sent this letter to the Applicant by registered mail, with a copy of the letter to Mr. Buahene by fax.
[14] On May 2, 2005, the Officer received a fax from Ms. Fiona Begg (who is now the Applicant's counsel), informing her that Mr. Buahene was out of the country, and should no longer be considered the Applicant's counsel of record. Ms. Begg also stated that she had been unable to contact the Applicant and had therefore been unable to notify him of the deadlines set by the Officer.
[15] Neither the Applicant nor his counsel appeared for the May 11, 2005 hearing. On May 12, 2005, the Officer consulted the Canada Post web site and concluded that an attempt had been made to deliver her letter of April 26, 2005 on April 28, 2005.
[16] Also on May 12, 2005, the Officer sent the Applicant a second notice for a hearing for May 26, 2005 by registered mail, and faxed a copy of her letter to Mr. Buahene.
[17] Neither the Applicant nor his counsel appeared for the May 26, 2005 hearing. Later that day, the Officer consulted the Canada Post web site and concluded that an attempt had been made to deliver her letter of May 12, 2005 on May 16, 2005.
[18] The Officer declared the Applicant's PRRA application abandoned on May 26, 2005 because of his failure to attend either of the hearings.
[19] The Applicant's mailing address of record was the residence of his aunt and uncle in Burnaby, British Columbia. The Applicant submitted an affidavit sworn by his aunt, Tahereh Khoddami, in which she states that she was out of the country between April 11, 2005 and May 21, 2005, but that she had instructed her husband and her children to notify the Applicant immediately if any mail came for him. She adds that only one delivery notification card was received on or around June 3, 2005, and that she notified the Applicant immediately.
[20] The Applicant also submitted an affidavit sworn by his uncle, Iraj Maleki, in which the uncle states that he did not receive any delivery notification card addressed to the Applicant between April 11 and May 21, 2005.
[21] The Applicant also submitted a sworn affidavit in which he states that the only delivery notice he received was on June 3, 2005, and that he was dismayed to learn that his application had been declared abandoned. He states that he wishes to challenge the conclusions of the Canadian embassy's lawyer.
PERTINENT LEGISLATION
[22] The relevant provision of the Immigration and Refugee Protection Regulations, SOR 2002-227 (Regulations) read as follows:
| 160. (1) Subject to subsection (2) and for the purposes of subsection 112(1) of the Act, a person may apply for protection after they are given notification to that effect by the Department.
(4) Notification is given
(a) when the person is given the application for protection form by hand; or
(b) if the application for protection form is sent by mail, seven days after the day on which it was sent to the person at the last address provided by them to the Department.
...
168. A hearing is subject to the following provisions:
(a) notice shall be provided to the applicant of the time and place of the hearing and the issues of fact that will be raised at the hearing;
(b) the hearing is restricted to matters relating to the issues of fact stated in the notice, unless the officer conducting the hearing considers that other issues of fact have been raised by statements made by the applicant during the hearing;
(c) the applicant must respond to the questions posed by the officer and may be assisted for that purpose, at their own expense, by a barrister or solicitor or other counsel; and
(d) any evidence of a person other than the applicant must be in writing and the officer may question the person for the purpose of verifying the evidence provided.
169. An application for protection is declared abandoned
(a) in the case of an applicant who fails to appear at a hearing, if the applicant is given notice of a subsequent hearing and fails to appear at that hearing; and
(b) in the case of an applicant who voluntarily departs Canada, when the applicant's removal order is enforced under section 240 or the applicant otherwise departs Canada. |
160. (1) Sous réserve du paragraphe (2), pour l'application du paragraphe 112(1) de la Loi, toute personne peut faire une demande de protection après avoir reçu du ministère un avis à cet effet.
(4) L'avis est donné :
a) soit sur remise en personne du formulaire de demande de protection;
b) soit à l'expiration d'un délai de sept jours suivant l'envoi par courrier du formulaire de demande de protection à la dernière adresse fournie au ministère par la personne.
[...]
168. Si une audience est requise, les règles suivantes s'appliquent :
a) un avis qui indique les date, heure et lieu de l'audience et mentionne les questions de fait qui y seront soulevées est envoyé au demandeur;
b) l'audience ne porte que sur les points relatifs aux questions de fait mentionnées dans l'avis, à moins que l'agent qui tient l'audience n'estime que les déclarations du demandeur faites à l'audience soulèvent d'autres questions de fait;
c) le demandeur doit répondre aux questions posées par l'agent et peut, à cette fin, être assisté, à ses frais, par un avocat ou un autre conseil;
d) la déposition d'un tiers doit être produite par écrit et l'agent peut interroger ce dernier pour vérifier l'information fournie.
169. Le désistement d'une demande de protection est prononcé :
a) dans le cas où le demandeur omet de se présenter à une audience, lorsqu'il omet de se présenter à une audience ultérieure dont il a reçu avis;
b) dans le cas où le demandeur quitte volontairement le Canada, lorsque la mesure de renvoi est exécutée en application de l'article 240 ou lorsqu'il quitte autrement le Canada. |
[23] Section 7 of the Canadian Charter of Rights and Freedoms (Charter) reads as follows:
| 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. |
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale. |
ISSUES
[24] The Applicant raises the following issues:
1. What is the standard of procedural fairness required of the Respondent before declaring a PRRA application to be abandoned?
2. Did the Officer commit a breach of natural justice by sending the Notices of Hearing by registered mail?
ARGUMENTS
1. What is the standard of procedural fairness required of the Respondent before declaring a PRRA application to be abandoned?
The Applicant
[25] The Applicant submits that the consequences in this case are extremely serious for him, particularly given that he has already applied twice to the Federal Court to overturn negative PRRA decisions, and has also borne the cost of having an expert report prepared. As such, the Applicant argues that the standard of procedural fairness to be applied to this case is high.
[26] Citing Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1, [2002] 1 S.C.R. 3, the Applicant urges that this is a case where he should not be deprived of the right to life, liberty and security of the person under section 7 of the Charter except in accordance with the principles of fundamental justice, which he says cannot stand or fall on the failed delivery of registered mail.
[27] The Applicant argues that, as there is no opportunity under the Act to re-open the application once it has been declared abandoned, a declaration of abandonment amounts to a rejection of the application without consideration of the merits. The Applicant contends that this is not in accordance with the principles of fairness set out in Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[28] The Applicant further notes that he can make another application under section 165 of the Regulations, but such an application would not result in a stay of removal, and as such would expose him to the risk of removal, which should only occur in accordance with a standard of procedural fairness that conforms with section 7 of the Charter.
The Respondent
[29] The Respondent makes no specific written submissions regarding the first issue.
2. Did the Officer commit a breach of procedural fairness by sending the Notices of Hearing by registered mail?
The Applicant
[30] The Applicant submits that the Notices of Hearing were sent to him by a method unauthorized by the Act, namely registered mail, and that this method merely allowed the Respondent to confirm, but not to ensure, delivery to the Applicant.
[31] The Applicant argues that the Respondent failed to deliver the Notices of Hearing to him, which amounts to a breach of natural justice by the Respondent.
[32] Although the Act is silent with regard to the means of notification for the purposes of hearings, the Applicant states that he was not "given notice" of a subsequent hearing as required by section 169 of the Regulations, and as such his application should not have been declared abandoned.
[33] The Applicant contends that the Respondent confirmed that the first notice was not picked up and so was not received by the Applicant, but then used the same method of delivery for the second notice.
[34] The Applicant points out that he received the second notice on June 3, after the hearing date of May 26 had passed, at which point he contacted counsel immediately.
The Respondent
[35] The Respondent submits that, because section 168 of the Regulations is silent with regard to the method of notification for hearings, the method employed was a discretionary decision for the Officer, and that the use of registered mail for notification constitutes a reasonable exercise of that discretion.
[36] The Respondent argues that the Applicant was given notice of both hearings by registered mail, and that the evidence from Canada Post shows that delivery notification cards were left at his address with regard to both notification letters. There is no dispute with regard to the Applicant's address, and the Respondent submits that "his evidence suggests that he was not always living at that address on a day to day basis."
[37] The Respondent contends that evidence from Canada Post should be preferred to the affidavits submitted by the Applicant because it comes from a disinterested source that is not a party to this litigation.
[38] The Respondent further submits that counsel attempted to contact the Applicant to advise him of the hearings prior to May 2, as demonstrated by exhibit "F" to the affidavit of the Officer.
[39] Citing Ali v. Canada(Minister of Citizenship and Immigration), 2005 FC 908, [2005] F.C.J. No. 1150 (QL) the Respondent argues that refugee claimants have an obligation to keep in touch with their counsel, and that the Applicant had the same duty in the context of the PRRA process.
[40] As such, the Respondent contends that the Officer did not breach procedural fairness in deeming the Applicant's application abandoned under section 169 of the Regulations.
ANALYSIS
[41] By letter of May 26, 2005 the Applicant was advised that his PRRA application had been rejected because, after failing to appear for a hearing, he was told to report for a subsequent hearing for which he also failed to appear. Consequently, his PRRA application was declared abandoned.
[42] Regulation 169(a) provides that an application is declared abandoned in the case of an applicant who fails to appear at a hearing if the applicant is given notice of a subsequent hearing and fails to appear at that hearing.
[43] The Applicant failed to appear at a hearing scheduled for May 11, 2005. Purported notice of that hearing was contained in the Officer's letter of April 26, 2005 that was faxed to the Applicant's lawyer, Mr. Buahene, on April 27, 2005, and was sent to the Applicant by registered mail.
[44] The Officer says that she checked the Canada Post web-site on May 12, 2005 to confirm the status of her April 26, letter. She says the print-out indicates that Canada Post had attempted to deliver the letter on April 28, 2005 and that a delivery notification card had been left for the Applicant when the letter could not be delivered.
[45] The Officer says she registered her April 26, 2005 letter on April 27, 2005 and the registration form refers to item 78 651 632 572.
[46] The Canada-Post web-site print out provided by the Officer in her affidavit dated May 12, 2005 for item 78 651 632 572 shows the item was out for delivery on April 28, 2005, in New Westminster where there was an attempted delivery and a delivery notification card was left with pick-up details. When the item was received at the Post Office for pick-up as a carded item the location given is Burnaby.
[47] So all this print out shows is that attempted delivery of the item took place in New Westminster. It does not tell us that delivery was attempted at the Applicant's address, which at the material time was 6865 Sperling Avenue, Burnaby, B.C., V5E 2V8. No explanation is provided by the Respondent concerning New Westminster as the location where delivery was attempted.
[48] The Officer sent her second notice for a hearing on May 12, 2005. A copy was faxed to Mr. Buahene on May 12, 2005. This notice was also sent by registered mail to the Applicant as item 78 651 632 609, and was accepted by Canada Post on May 13, 2005.
[49] The Canada Post print out for item 78 651 632 609 dated may 26, 2005, shows that the item was accepted on May 13, 2005 in Vancouver and that delivery was attempted on May 16, 2005 in New Westminster. Once again, the print out is clear that the item was received at the Post Office for pick-up as a carded item in Burnaby, B.C., but all it tells us about attempted delivery is that it took place in New Westminster and that a delivery notification card was left with pick-up details in New Westminster.
[50] Once again, no explanation is provided by the Respondent concerning the New Westminster location for attempted delivery and the notification card.
[51] Also, on May 2, 2005, Ms. Fiona Begg (the Applicant's present legal counsel) informed the Officer via fax that Mr. Buahene was out of the country and should not be considered counsel of record as of that time. So it is difficult to understand why the Officer faxed the second notice of hearing to Mr. Buahene on May 12, 2005. And, in doing so, she must have known that this was not a viable way of informing the Applicant about the meeting scheduled for May 26, 2005.
[52] When the Officer checked the Canada Post print-out for both notices, she had to be aware that the attempted delivery location was New Westminster and not Burnaby. Yet, there appears to have been no attempt to investigate this discrepancy to find out whether delivery had been attempted at the Applicant's address in Burnaby and/or whether the delivery notification card had been left at the Applicant's address in Burnaby or somewhere in New Westminster as the print-out indicates.
[53] In other words, the Respondent has not provided the Court with any evidence that notice of hearing was given at the Applicant's address in Burnaby. The Canada Post print-out says it was New Westminster.
[54] The Applicant says that the only notice he received was on or about June 3, 2005 to go and pick up a registered letter at Middlegate Hall. He says that he did so and was given the Respondent's letter of April 14, 2005 regarding Disclosure of Information and the Notice for the Second Hearing dated May 12, 2005.
[55] He also says that for the entire period during April and May 2005 when his aunt was in Iran he continued to receive regular mail "including correspondence from CCRA."
[56] There is no evidence that anyone at the Applicant's address ever received a delivery notification card for the two Notices of Hearing that the Canada Post print-out indicates were left in New Westminsteron April 28, 2005 and May 16, 2005.
[57] The Applicant's affidavit is ambivalent concerning how and when he received the notice to pick up registered mail on or about June 3, 2005. He says his aunt gave him the card but he doesn't say when she received it. He also makes the following point:
It makes no sense for me to rush to pick up some letters and not others, since when I received the cards from Canada Post, they did not indicate what the letters were about.
[58] The Applicant's aunt says in her affidavit that between April 11, 2005 and May 21, 2005, she was away in Iran. However, she also says that, before she left, she instructed her children and her husband that if any mail came for the Applicant when he was not at home they should call him immediately.
[59] She then says that when she got home from Iranshe received a notification card from Canada Post that there was mail for the Applicant. She says the card arrived on or about June 3, 2005 and she immediately gave the notice to the Applicant.
[60] The Respondent chose not to cross-examine the Applicant and the aunt on their affidavits.
[61] So the Court is left with contradictory accounts of how and when notice of the scheduled hearings was given.
[62] The Respondent says that the notices of hearing were sent to the correct address and that the "Canada Post tracking print-outs confirm that for the hearing notification letters, delivery notification cards were left at his mailing address." But the print-outs show New Westminster as the location where delivery was attempted and the notification card was left.
[63] On September 6, 2005, the Officer says she again checked the Canada Post web-site for all three registered letters that she sent to the Applicant and she provides a print-out history for all of them. Once again, the print-out designates New Westminster as the location of attempted delivery and deposit of the notification card.
[64] There may be a simple explanation for these discrepancies, but it has not been provided to the Court. The Respondent says that the Canada Post evidence should be preferred to the Respondent's evidence because it comes from a disinterested source that is not a party to the litigation. The problem with this assertion is that the Canada Post evidence is, at best, confusing. And if it is to be trusted, as the Respondent says, it shows New Westminster as the location for attempted delivery and deposit of the notification cards.
[65] On these facts, the Court has no clear evidence that refutes what the Applicant and his aunt say about receipt of notice.
[66] It is noteworthy that when the Officer communicated with the Applicant to advise him to attend on June 28, 2005 to receive the Decision, she sent the notice by regular mail and there was no problem.
[67] Section 168(a) of the Regulations is mandatory that notice of a hearing "shall be provided to the applicant of the time and place of the hearing and the issues of fact that will be raised at the hearing." Section 169 provides that an application can only be declared abandoned in the case of an applicant who fails to appear at a hearing "if the applicant is given notice of a subsequent hearing and fails to appear at that hearing."
[68] In the present case, the Applicant says he never received notice of either hearing at a time that would have allowed him to attend. The Respondent has not provided the Court with sufficient evidence to refute this assertion.
[69] To allow the abandonment Decision to stand under these circumstances would be extremely unsafe, particularly given what is at stake if the Applicant loses the protection of the stay of removal imposed by Justice Paul Rouleau.
[70] There are several ways to characterize what I believe is the appropriate conclusion in this review. On the one hand, the Court finds that the Applicant did not receive notice of hearing in accordance with Regulation 168 so that the Decision was not made in accordance with Regulation 169 and is wrong in law for that reason. On the other hand, it is also the case that natural justice and procedural fairness were lacking in this case because the Applicant was not provided with notice of the relevant meetings and was not given the opportunity to attend and state his case.
[71] It has to be made clear, however, that these conclusions are the result of the peculiar facts of this case and the confusions in the evidence provided to the Court. The Court says nothing about the method of notification that should be used for Notices of Hearing. On the facts of this case, the Court just cannot conclude that the Applicant was given notice.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed, the Decision is quashed and the matter is referred back for reconsideration to another officer.
2. There is no question for certification.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4162-05
STYLE OF CAUSE: MAHMOUD CHATRI v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: December 15, 2005
APPEARANCES:
| Ms. Fiona Begg
|
|
| Mr. Peter Bell
|
SOLICITORS OF RECORD:
| Ms. Fiona Beg Vancouver, B.C.
|
|
| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Vancouver Regional Office
|