Date: 20031029
Docket: IMM-4779-03
Toronto, Ontario, October 29th, 2003
Present: Madam Prothonotary Milczynski
BETWEEN:
JOHN ORWOBA MANYANGE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion made in writing dated September 28, 2003 on behalf of the Applicant for an Order to extend the time to serve and file the Applicant's Record in support of his Application for Leave and Judicial Review.
[2] Having read the motion records filed on behalf of the Applicant and Respondent and for the reasons set out below, the motion is dismissed.
[3] The Applicant has not satisfactorily explained the delay in filing his Record in support of his Application for Leave and Judicial Review, has not established an arguable case, and has not proven that there is any serious intention on his part to pursue his claim for convention refugee status. This motion has been brought over one month after the Applicant's Record was due, which Record was in respect of the Applicant's leave application for judicial review of the refusal of the Immigration and Refugee Board - Refugee Protection Division to reopen his claim for convention refugee status that had been declared abandoned.
[4] The chronology of events in respect of the Applicant's claim for refugee status is relevant for the disposition of this motion.
[5] The Applicant arrived in Canada at Pearson International Airport in Toronto on August 11, 2002, and on August 27, 2002, he stated his intention to make a claim for convention refugee status. On August 27, 2002, the Applicant also retained counsel to assist him with his claim.
[6] On October 17, 2002, the Applicant met with an Immigration Officer and was given a Personal Information Form ("PIF") to complete. He was advised that the PIF was required to be filed with the Immigration and Refugee Board within 28 days - due therefore on or before November 14, 2002.
[7] The Applicant's counsel requested and received an extension to file the PIF to November 22, 2002, but the PIF was not filed until December 4, 2002.
[8] On December 6, 2002, the Applicant was served with a Notice to Appear for a hearing scheduled for January 6, 2003 to determine whether he had abandoned his claim to refugee protection, and to explain why the PIF was not completed as required. The Applicant did not attend, and in a Notification of Abandonment dated January 29, 2003, the Applicant's refugee claim was declared to have been abandoned.
[9] Upon receiving this Notification in early February, 2003, the Applicant attempted to re-open his claim for refugee status through March and April, 2003, claiming that he had not received the December 6th Notice to Appear, and that his counsel was unaware that his claim for refugee status had been declared abandoned.
[10] The Applicant's request to reopen was denied on May 30, 2003. Immigration and Refugee Board - Refugee Protection Division file correspondence indicates that the decision and reasons were sent to the Applicant and his counsel on that date. Nonetheless, the Applicant denies receiving written reasons and states that he only received the decision. Further correspondence was then sent by the Refugee Protection Division and was received by the Applicant on July 10, 2003 and on July 17, 2003.
[11] The July 17, 2003 correspondence reproduced the endorsement setting out the reasons for refusing to re-open the Applicant's refugee claim:
The PABA notice was sent to the applicant's last known address....and to his counsel. There is no indication on the applicant's IRB file that the NTA was not delivered to him. Neither the applicant nor counsel attended PABA. No satisfactory information has been provided to explain the late filing of the PIF. The PIF was submitted 12 days after the extended due date of November 12, 2003. In my opinion, there has been no breach of natural justice in declaring the applicant's claim opinion,[sic] there has been no breach of natural justice in declaring the applicant's claim abandoned.
[12] Taking the July 17, 2003 date as the operative date from which time commenced to run for the filing of the Applicant's Record for leave for an application for judicial review of the refusal to reopen the Applicant's refugee claim, the Record was due on August 25, 2003. The Applicant, however, took no steps until September 28, 2003 at which time he states he returned to his counsel's office, came to an agreement with counsel and gave instructions to proceed with the leave application for which the extension of time is now required.
[13] In that regard, no satisfactory explanation is provided for the delay. The Applicant states that he sought but was denied Legal Aid, but does not indicate the time frame for his efforts. The Applicant also states that he eventually returned to his counsel's office and reached an agreement on September 28th, but does not explain his efforts, if any, to reach an agreement before that date, or before the deadline for filing had expired on August 25, 2003.
[14] Taking into account the test to be applied on a motion for extension of time, the Applicant has also failed to show any serious intent to pursue his refugee claim diligently, or that his claim indicates that he has an arguable case.
ORDER
THIS COURT ORDERS that the motion is hereby dismissed.
"Martha Milczynski"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4779-03
STYLE OF CAUSE: JOHN ORWOBA MANYANGE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER BY: MILCZYNSKI P.
DATED: OCTOBER 29, 2003
WRITTEN REPRESENTATIONS BY:
|
Geraldine MacDonald
|
FOR THE APPLICANT |
|
Tamrat Gebeyehu |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
ROBERT GERTLER and ASSOCIATES Toronto, Ontario |
FOR THE APPLICANT |
|
Morris Rosenberg Deputy Attorney General of Canada |
FOR THE RESPONDENT |
FEDERAL COURT
Date: 20031029
Docket: IMM-4779-03
BETWEEN:
JOHN ORWOBA MANYANGE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
_