Date: 19990401
Docket: IMM-723-98
Between :
VITALI KOULKOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
These are the Reasons filed, pursuant to section 51
of the Federal Court Act, in support of the Order
I pronounced in Open Court, at the end of the hearing
| of this matter, on March 23, 1999 |
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated January 26, 1998, in which the Board declared his claim to have been abandoned on January 5, 1998.
[2] On January 5, 1998, the applicant and his counsel attended an abandonment hearing at the Board. Following the abandonment hearing, by way of a Notice dated January 26, 1998, the Board declared that the applicant did not appear at his scheduled hearing and was deemed to have abandoned his refugee claim. This decision was received by the applicant on February 6, 1998. Following the reception of this clearly erroneous letter, the applicant began an application for leave and for judicial review of this decision on February 20, 1998. The applicant stated in his application for leave that the Board erred in deciding he had not attended his hearing when he was indeed present.
[3] On February 27, 1998, a week after the Minister was served with the application for leave and for judicial review, the Board issued a second "modified" decision whereby the Board concluded that the applicant and his counsel were indeed present at his hearing but that they had failed to convince the Board why the application should not be deemed abandoned. It is to be noted that this modified decision also bears the date of January 26, 1998.
[4] In M.E.I. v. Restrepo (1989), 8 Imm.L.R. (2d) 161, the Federal Court of Appeal dealt with a situation where the Immigration Appeal Board rendered a decision on April 7, 1987 which appeared to have been written and recorded. The unsuccessful party filed an application for permission to appeal the decision. Before permission was granted, in response to a request from the unsuccessful party, the Immigration Appeal Board issued written reasons and the Registrar of the Board signed an "amended" decision substantially differing from the original decision. Mr. Justice Pratte wrote as follows at page 163:
| We feel certain that the latter appeal is well founded. On September 1, 1987, the Board had no further jurisdiction over this matter on which it had already ruled on April 7 by rendering a decision that it could no longer amend. It would have been otherwise, of course, if the decision of September 1 had merely been intended to correct a material error in the decision of April 7. But such was not the case. The second decision is substantially different from the first one, and there is nothing in the Board's reasons that indicates that the error that was to be corrected was only a material error. The appeal brought against the second decision shall therefore be allowed and the decision set aside. |
| (My emphasis.) |
[5] In the case at bar, the first decision is obviously not well founded as it indicates the applicant did not attend at the hearing on January 5, 1998. The applicant and his counsel, Me Michael Dorey, did in fact attend this hearing, and the transcript, which is part of the tribunal record (pages 143 to 162), indicates that they tried to show why the claim for refugee status should not be abandoned. Indeed, as it appears at pages 161 and 162 of the transcript, the presiding member of the Board stated that the panel was ready to render the decision and indicated the reasons why the Board concluded that the applicant's claim was abandoned:
| BY PRESIDING MEMBER |
| - The panel is ready to render the decision. |
| After the discussion with my colleague, we decided to conclude the abandonment procedure. We are concluding that the claim is abandoned for the following reasons: |
| We consider that the claimant was negligent in two (2) areas. First of all, when he came to Canada he was handed a package explaining to him all the procedures, including the necessity of the informing the Refugee Board of the any change of the address. The claimant failed to advise the Board about the change of his address. |
| He told us that he met his lawyer at the beginning of ... that he moved to the new address on Walkley at the beginning of November 1997. He told us that he met his lawyer at the beginning of December when he learned from his lawyer that the hearing was scheduled for December 15. Nevertheless, he changed his address with the Refugee Board only on December 19th. |
| Well, from what the claimant testified, he told us that he knew about his hearing on the 15 of December from his lawyer. Nevertheless, he did not show up at the hearing on that date. He was called for 8:30. The hearing had started at 9:00. So half an hour later. |
| At that date, his counsel, Mr. Michael Dorey, informed us that he did not hear from his client for the last three (3) weeks, which is in contradiction with what the claimant told us, indicating that he met his lawyer at the beginning of December. |
| We cannot accept the explanation of the claimant that he went to bed late, that he was nervous and therefore he did not wake up on time. We consider it is serious negligence on his part to appear at the hearing which should be, in our understanding, something the most important for the claimant because his security, as he claims, depends on that. |
| Considering what I just said, we decided, my colleague and I, that the claim of Mr. Vitali Koulkov is abandoned. |
[6] It is clear, therefore, that the first decision was sent out by mere administrative error and did not reflect the intentions of the Board. I fail to understand why counsel for the applicant, before me, complained of some kind of manipulation against his client, when both of them were present at the hearing when the Board stated the real reasons in support of its decision to declare the applicant's claim to have been abandoned.
[7] Furthermore, contrary to the situation in Restrepo, supra, the application for leave and for judicial review, which was filed one week before the modified decision was sent out and which was never amended, was brought only against the first decision, not the second or amended decision.
[8] Consequently, even though the first decision was clearly wrong, I find that it was duly amended by a valid second decision. The applicant, therefore, cannot obtain any useful remedy in these proceedings and his application must be dismissed.
JUDGE
OTTAWA, ONTARIO
April 1, 1999