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                                                                    Date: 20020925

                                                                Docket: IMM-280-02

                                                  Neutral Citation: 2002 FCT 991

Between:

                 SAAD TAHER, domiciled and residing at

                      2851 Baycrest Drive, apt 104

                    Ottawa, Ontario H1V 8V7 - Canada

                                                                Applicant

                                 - and -

                      THE MINISTER OF CITIZENSHIP

                             AND IMMIGRATION

            C/o Department of Justice, Complex Guy-Favreau

             200 René-Lévesque West, East Tower, 5th floor

                   Montreal (Quebec) H2Z 1X4, Canada

                                                               Respondent

                          REASONS FOR ORDER

PINARD J.:

   This application is for judicial review, under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") of a decision of the Convention Refugee Determination Division of the Immigration and Refuge Board (the "Board") dated January 7, 2002, in which the Board denied the applicant's motion to have his refugee claim reopened. The Board had previously determined that the applicant's refugee claim had been abandoned due to his failure to file his Personal Information Form ("PIF"), his failure to provide an address, phone number or name of counsel as well as his failure to appear at a hearing to consider the abandonment of his claim. The Board concluded as follows:


In summary, I have already found that the Board did not breach the rules of natural justice in declaring the Applicant's claim to be abandoned. I find as well, on the evidence canvassed above, that no breach of the rules of natural justice arises in relation to the conduct or competency of counsel for the Applicant.

   Upon hearing counsel for the parties and reviewing the evidence, I cannot agree there had been no breach of natural justice. There was clear and uncontradicted evidence before the Board showing that the applicant, who did not speak or understand any of our Canadian official languages, had retained an experienced attorney within a reasonable time. It is through the unique fault of his counsel that the applicant's PIF was not filed and his address, phone number and name of counsel were not provided. The applicant was therefore not negligent.

   As a result, even though the Board could not be blamed for not giving the applicant a reasonable opportunity to be heard pursuant to subsection 69.1(6) of the Act before declaring the claim to have been abandoned, the applicant was nonetheless denied natural justice and deprived, through no fault of his own, of a fair opportunity to be heard before his claim was declared abandoned.

   Given these extraordinary circumstances and the serious effect of the impugned decision, which is to prevent the reestablishment of the applicant's refugee claim, I am of the view that the fault of counsel is sufficient to give rise to a natural justice issue. In my opinion, the following statement by Rothstein J. (as he then was) in Drummond v. Canada (M.C.I.) (1996), 112 F.T.R. 33 at 35, fully applies to the case at bar:

. . . However, in extraordinary cases, competency of counsel may give rise to a natural justice issue. In such cases, the facts must be specific and clearly proven; see Sheikh v. M.E.I. (1990), 71 D.L.R. (4th) 604 (F.C.A.); Huynh v. M.E.I. (1993), 21 Imm.L.R. (2d) 18 (F.C.T.D.); and Shirwa v. M.E.I. (1993), 23 Imm.L.R. (2d) 123 (F.C.T.D.).


   For all the above reasons, I find that the applicant's motion to reopen should have been granted by the Board. Accordingly, the application for judicial review is allowed and the matter is remitted to a differently constituted Board for redetermination in accordance with these Reasons.

                                                                         

       JUDGE

OTTAWA, ONTARIO

September 25, 2002


                              FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

                    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-280-02

STYLE OF CAUSE:                       SAAD TAHER v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Montréal, Quebec

DATE OF HEARING:              August 13, 2002

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                          September 25, 2002

APPEARANCES:

Me Joyce Yedid                        FOR THE APPLICANT

Me Daniel Latulippe                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Joyce Yedid                          FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                      FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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