Ottawa, Ontario, September 20, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Don Bedural Abrazaldo is a citizen of the Philippines who claims status in Canada as a Convention refugee and a person in need of protection. Unfortunately, he did not attend his refugee hearing on August 10, 2004. Instead, his immigration consultant appeared before the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "Board") with a note from Mr. Abrazaldo that, in its entirety, stated:
I can't come for the hearing because I am sick.
I apologize for the inconvenience.
[2] On August 10, 2004, the RPD set a show cause hearing for the morning of September 16, 2004, at which time Mr. Abrazaldo was to show cause why his claim for refugee protection should not be declared to be abandoned. The presiding member advised Mr. Abrazaldo's consultant that a proper medical explanation would have to be provided on September 16, 2004.
[3] Neither Mr. Abrazaldo nor his consultant attended this second hearing. Instead, Mr. Abrazaldo faxed a second letter to the Board on September 15, 2004 that stated, again in its entirety:
I am unable to go for the hearing because I am sick. I apologize for the inconvenience.
[4] Accompanying the letter was a second note, handwritten on a doctor's prescription form, that said:
Unable to work for medical reasons. September 14-19, 2004
[5] On the afternoon of September 16, 2004, the RPD declared Mr. Abrazaldo's claim to be abandoned. In so finding, the Board noted the absence of any correspondence after the hearing on August 10, 2004, the failure of Mr. Abrazaldo's consultant to notify the Board, the vagueness of the note Mr. Abrazaldo provided on September 15, 2004, and Mr. Abrazaldo's failure to show cause why his claim should not be abandoned.
[6] Mr. Abrazaldo brings this application for judicial review of that decision.
[7] At the outset, I adopt the reasoning of my colleague, Mr. Justice Lemieux, in Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.) to conclude that the applicable standard of review to be applied to a decision of the RPD declaring a refugee claim to be abandoned is reasonableness simpliciter. This means that the Court is not to decide whether it agrees with the decision of the RPD. The Court must not interfere with the decision of the RPD unless Mr. Abrazaldo shows that the decision was unreasonable.
[8] As to what is an unreasonable decision, an unreasonable decision is one that, for the most part, is not supported by any reasons that can stand up to a "somewhat probing examination", see: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56. If any of the reasons sufficient to support the decision of the RPD are tenable, then the decision is not unreasonable. Put simply, the Court is required to assess whether the reasons, taken as a whole, are adequate to support a reasoned decision.
[9] To assess the adequacy of the RPD's reasons, one must have regard to the legislative provisions that guide the RPD. Subsection 168(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") allows the divisions of the Immigration and Refugee Board, including the RPD, to find a proceeding to be abandoned if of the opinion that an applicant is in default, including default by failing to appear for a hearing. The factors to be considered by the RPD are set out in Rule 58(3) of the Refugee Protection Division Rules, SOR/2002-228 ("Rules"). They are the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings. Subsection 168(1) of the Act and Rule 58 of the Rules are set out in the appendix to these reasons.
[10] Applying these principles to the decision of the RPD, the Board considered the explanations provided by Mr. Abrazaldo in his note and doctors note, and explained why it found them to be insufficient. It correctly noted the failure of Mr. Abrazaldo or his consultant to attend on September 16, so that no effort had been made to show cause why the claim should not be declared abandoned. Mr. Abrazaldo has not shown any error on the part of the RPD or how its reasons are inadequate to support its decision that his claim should be declared to be abandoned.
[11] In Mr. Abrazaldo's written submissions he argued that: he had a reasonable explanation for not attending the hearing; he had, and has, a continuing intention to pursue his claim; his claim has merit; and the Minister will suffer no prejudice if Mr. Abrazaldo's claim is reopened. Those are arguments that should have been addressed to the RPD. They do not establish reviewable error on the part of the RPD.
[12] In oral argument, Mr. Abrazaldo sought to blame his consultant, arguing that he did not know that his consultant would not attend the September hearing and that he was not informed by his consultant that the September hearing was an abandonment hearing. He said he had been mistaken in putting his trust in his consultant.
[13] Allegations of misconduct on the part of a consultant are easily made. When, however, Mr. Abrazaldo applied to the RPD to reopen his claim he made no complaint about his consultant's conduct, nor was the issue raised in Mr. Abrazaldo's affidavit filed in support of this application. This conduct is inconsistent with any concern on Mr. Abrazaldo's part as to his consultant's conduct. In any event, the argument based on errors and omissions on the part of the consultant is not supported by any evidence before the Court.
[14] As to Mr. Abrazaldo's knowledge about the purpose of the September hearing, the notice to appear, sent directly to Mr. Abrazaldo, was entitled "Notice to Appear Abandonment of a Claim for Refugee Protection". The first paragraph of the accompanying instructions stated, in the first paragraph, "[i]f you fail to appear at that time and place to explain why your claim should not be determined abandoned, the Refugee Protection Division (RPD) may determine your claim to have been abandoned. This means that you would lose the right to have your claim heard by the RPD". This notice to Mr. Abrazaldo contradicts his submission that he did not know the purpose of the September hearing.
[15] For these reasons, the application for judicial review will be dismissed.
[16] Mr. Abrazaldo did not point to any significant question of law of general importance raised in this proceeding, and counsel for the Minister submitted that no such question was raised on this record. I agree, and no question is certified.
ORDER
[17] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
Judge
APPENDIX
Subsection 168(1) of the Act and Rule 58 of the Rules are set out below:
| 168(1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
[...]
58(1) A claim may be declared abandoned, without giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
58(2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity (a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or (b) in any other case, by way of a special hearing after notifying the claimant in writing. 58(3) The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.
58(4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay.
|
168(1) Chacune des sections peut prononcer le désistement dans l'affaire dont elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication.
[..]
58(1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé si, à la fois : a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire; b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées.
58(2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité : a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire; b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit. 58(3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire. 58(4) Si la Section décide de ne pas prononcer le désistement, elle commence ou poursuit l'affaire sans délai.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8774-04
STYLE OF CAUSE: DON BEDURAL ABRAZALDO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 8, 2005
APPEARANCES:
SELF-REPRESENTED FOR THE APPLICANT
A. LEENA JAAKKIMAINEN FOR THE RESPONDENT
SOLICITORS OF RECORD:
SELF-REPRESENTED FOR THE APPLICANT
AGINCOURT, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA