Federal Court Decisions

 

 

 

Date: 20060908

Docket: IMM-7142-05

Citation: 2006 FC 1078

Ottawa, Ontario, September 8, 2006

PRESENT:     The Honourable Mr. Justice Phelan

 

 

BETWEEN:

GARNIK OHANYAN

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

I.          Introduction

[1]               This is a judicial review of an Immigration and Refugee Board (Board) decision which refused to reinstate a refugee claim which had been abandoned.

 

II.         Facts

[2]               The Applicant is a 29 year old citizen of Armenia who claimed refugee protection on September 13, 2004. Shortly thereafter he withdrew his claim because his wife informed him that government agents had stopped looking for him and it was safe to return.

 

[3]               A few weeks later his wife advised him that the government agents had returned to his house looking for him. The Applicant brought a motion under Rule 53 of the Refugee Protection Division Rules to reinstate his refugee claim.

 

[4]               The Board denied his application. The Applicant says that he never received reasons for the decision although the Board says that it mailed out a letter with an endorsement attached which contained the reasons for the refusal to reinstate.

 

[5]               This endorsement referred to as Appendix A to the Board’s letter makes the following findings:

·                    the Applicant had the same counsel on the motion to reinstate as appeared in the application for refugee protection;

·                    there was no breach of natural justice as the Applicant withdrew his application after consulting counsel;

·                    there was no breach of natural justice as the absence of a hearing did not constitute a denial of natural justice because the merits of the case are not being tested; and

·                    there was no substantial defect such that it taints the entire proceedings and therefore it is not in the interests of justice to reopen.

 

III.       Analysis

[6]               I adopt the conclusion of Justice Kelen in Sathasivam v. Canada (Minister of Citizenship and Immigration), 2004 FC 438, [2004] F.C.J. No. 541 (QL) that the standard of review in these circumstances is reasonableness simpliciter.

 

[7]               The particular rule in question is Rule 53.

 

[8]               In my view, there is no breach of natural justice because a hearing was unnecessary.  Neither the Applicant’s credibility nor any of the relevant facts were in issue. The Applicant was able to make all of his representations in writing.

 

[9]               There was no breach of natural justice for failure to give reasons. While the reasons contained in the endorsement may not have been received concurrent with the decision, there were reasons and they were sufficiently fulsome for the Applicant to know why his motion to reinstate was dismissed. No prejudice for late delivery of the reasons was established.

 

[10]           With respect to whether to allow reinstatement is in “the interests of justice”, the Applicant has made no substantial submissions on this point. At most, the Applicant says it is unfair to him and that the hearing of his case would not inconvenience the Board.

 

[11]           The Applicant has taken Justice von Finckenstein’s decision in Ahmad v. Canada (Minister of Citizenship and Immigration), 2005 FC 279, [2005] F.C.J. No. 359 (QL) to have established a more restrictive meaning of “interests of justice”.

 

[12]           As I understand that decision, Justice von Finckenstein simply held that on the facts in that case – where that applicant was contending that the Board applied a wrong legal test – such an argument does not constitute grounds of “otherwise in the interests of justice”. Nor do I take his decision to be an exhaustive conclusion as to what the words “otherwise in the interests of justice” may mean under Rule 53.

 

[13]           The term “otherwise in the interests of justice” are broad words giving the Board a wide discretion to reinstate but which requires the Board to weigh all the circumstances of a case – not just from the vantage point of an applicant’s interests. Reinstatement is an exception to the norm and must be interpreted and applied in that context.

 

[14]           In the current circumstances, the Applicant had counsel and the decision to withdraw his application was informed, not made under mistake or duress. The Applicant made a strategic decision which apparently did not work to his advantage. The Rule is not designed to protect applicants from the consequences of their freely chosen course of conduct even where they have made a decision or taken a step which did not work out as they may have hoped.

 

[15]           Therefore, I can find no good reason for this Court to intervene in this matter. The application for judicial review will be dismissed.

 

 

JUDGMENT

            IT IS ORDERED THAT this application for judicial review is dismissed.

 

 

 

“Michael L. Phelan”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-7142-05

 

STYLE OF CAUSE:                          GARNIK OHANYAN

 

                                                            and

 

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      September 6, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Phelan J.

 

DATED:                                             September 8, 2006

 

 

 

APPEARANCES:

 

Mr. David Yerzy	FOR THE APPLICANT
Mr. Robert Bafaro	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

MR. DAVID YERZY Barrister & Solicitor Toronto, Ontario	FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT