Date: 20031216
Citation: 2003 FC 1476
BETWEEN:
MABEL ANA RUSCONI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for Judicial Review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant's application for Convention refugee status in Canada to be abandoned. The decision under review is dated the 29th of November, 2002.
[2] In arriving at the decision under review, the RPD relied upon subsection 168(1) of the Immigration and Refugee Protection Act[1] which reads as follows:
|
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. |
168. (1) Chacune des sections peut prononcer le désistement dans l'affaire don't 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. |
BACKGROUND
[3] The Applicant is a woman in her mid-sixties who is a citizen of Argentina. She neither speaks nor reads an official language of Canada. She bases her claim to Convention refugee status on an allegedly well-founded fear that if she is required to return to Argentina, she will be persecuted by political enemies of her husband, or her husband himself and perhaps by both. Her claim was referred to the Immigration and Refugee Board in October of 2001. Her Personal Information Form was received by the Board in late November of 2001. Since that time, it has been substantially amended.
[4] The Applicant failed to appear before the RPD, for assignment of a hearing date, in mid-February 2002. She did attend a subsequent abandonment hearing and provided an explanation for her earlier failure to appear. The RPD accepted her explanation. Her hearing was scheduled for mid-May, 2002. Shortly before the day fixed for her hearing, the RPD was advised that the Applicant had been involved in an accident that resulted in significant injuries. The Applicant thus sought an adjournment of her substantive hearing. The adjournment was granted and a date in August was set to fix a new substantive hearing date, the August date apparently having been selected to accommodate the Applicant's recuperation period. Once again, the Applicant failed to attend at the time and place fixed to set her new hearing date. Once again, she was invited to a hearing to show cause why her claim should not be determined to have been abandoned. She attended the abandonment hearing and gave the same explanation for her second failure to attend as she gave for the first, that being that she had not received notice of the date and place fixed.
[5] The RPD rejected her explanation. It concluded:
The claimant has not been diligent in pursuing her claim. The panel finds that there has been no breach of natural justice and that the claimant was given ample opportunities to appear for her hearing. Therefore, the Refugee Protection Division determines the claim to be abandoned.[2]
THE ISSUE
[6] In the Application Record filed on behalf of the Applicant, counsel identified the sole issue on this application for judicial review in the following terms:
Was the decision of the Board to declare the applicant's refugee claim abandoned, unreasonable?
ANALYSIS
[7] In Ahamad v. Canada (Minister of Citizenship and Immigration) [3], my colleague Justice Lemieux wrote at paragraphs 27 and 28, in the context of judicial review of an abandonment hearing such as is now before me:
L'Heureux-Dubé J., in Baker,... built upon [the Supreme] Court's decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration),.... . Taking into account the analysis in both of these cases, the lack of a privative clause, the object of the judicial review (question of law vs. fact-finding expertise) and the purpose of the provision leads me to conclude that the appropriate standard of review of the CRDD's decision [that] the applicant had abandoned his refugee claim is one of reasonableness simpliciter. As I see it, the basis upon which the CRDD's decision rests does not involve primarily legal considerations, for example, the interpretation of a statutory provision, nor findings of fact where paragraph 18(4)(d) of the Federal Court Act .... would require greater deference. In this case, the basis of the decision is one of mixed law and fact.
In applying these factors, I stress the nature of the decision being made: it is a determination that a refugee claimant has abandoned his/her claim before the claimant has been heard on the merits for the reason of that person's failure to appear at a scheduled hearing. Bastarache J., in Pushpanathan, .... said in the context of a finding that a refugee claimant was excluded under Article 1F(a) of the Convention ... such determination is "quite profound" for the claimant. This approach was echoed by my colleague, Muldoon J. in Cirahan v. Canada (Minister of Citizenship and Immigration) ..., a case involving a review of a CRDD decision deciding the applicant's claim had been abandoned. Muldoon J. said "[t]he discretion of the CRDD to find proceedings abandoned should be subject to serious scrutiny" [underlining added]. I agree.
[Citations omitted]
[8] Like Justice Lemieux, I agree that the discretion of, what is now the RPD, to find proceedings abandoned should be subject to serious scrutiny.
[9] Under serious scrutiny, was the decision of the RPD to declare the Applicant's refugee claim abandoned unreasonable? I conclude that it was.
[10] The RPD first delivered its decision orally, in the presence of the Applicant who was unrepresented by counsel, at the close of the hearing before it[4]. In so doing, it purported to recite the background facts to its decision. Its recital reflected a serious misunderstanding of the background facts. After this application for judicial review was commenced, the RPD issued written reasons. In those written reasons, it once again purported to recite the background facts. Once again, and in different ways, it again seriously misrepresented the background facts. In both its oral reasons and its written reasons, the RPD then went on to essentially ignore the genuine background facts and based its decision to declare the Applicant's application for Convention refugee status abandoned solely on the rejection of the Applicant's explanation as to why she did not attend the hearing scheduled for the 12th of August, 2002. In rejecting the Applicant's explanation, it did not find the Applicant's testimony before it not to be credible.
[11] I am satisfied that the decision under review cannot withstand "serious scrutiny". Put another way, it is a decision that cannot stand up to a "somewhat probing examination". Notwithstanding that it is beyond question that there is an onus on an applicant for Convention refugee status to diligently pursue his/her application[5], a decision such as that here under review to determine an application for Convention refugee status to be abandoned is a decision with "quite profound" implications for the Applicant. It follows that such a decision must be carefully taken and care in taking it must be clearly reflected on the face of reasons in support of the decision. Such was not the case in this matter.
CONCLUSION
[12] Based upon the foregoing brief analysis, this application for judicial review will be allowed, the decision of the RPD that is under review will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[13] The Respondent will have seven (7) days from the date of these reasons to provide to the Court written submissions on certification of a question, if it concludes that certification of a question is warranted. If a question or questions are put forward for certification on behalf of the Respondent, the Applicant will have seven (7) days in which to respond to the Respondent's submissions. Thereafter, the Respondent will have three (3) days to provide written reply. The Court's order herein will only issue after any submissions on certification of a question have been received by the Court and the Court has had an opportunity to consider them.
J.F.C.
Ottawa, Ontario
December 16, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5461-02
STYLE OF CAUSE: MABEL ANA RUSCONI v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 9, 2003
REASONS FOR [ORDER or JUDGMENT] : Honourable Mr. Justice Gibson
DATED: December 16, 2003
APPEARANCES:
D. Clifford Luyt
For the Applicant
A. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, ON
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
[1] S.C. 2001, c.27.
[2] Tribunal Record, Page 6.
[3] [2000] 3 F.C. 109 (F.C.T.D.).
[4] Tribunal Record, Pages 98-99.
[5] SeeSerrahina v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 622 (F.C.T.D.).