Date: 20030416
Docket: IMM-1343-02
Citation: 2003 FCT 477
Toronto, Ontario, Wednesday, the 16th day of April, 2003
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JOSE ALEJANDRO SERRAHINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Refugee Division"), dated March 1, 2002, denying the applicant's motion to reopen his refugee claim.
[2] The applicant arrived in Canada from Argentina in April 2001 and indicated he wished to claim refugee status. The applicant was sent a package including a blank Personal Information Form
("PIF") which he was directed to complete and return to the Refugee Division by July 18, 2001. The applicant did not file his PIF and a notice was sent to him on August 13, 2001 advising him that an abandonment hearing had been scheduled for September 5, 2001. The applicant did not appear at the hearing and his claim was declared abandoned.
[3] The applicant filed his PIF on September 18, 2001 and applied to have his claim reopened. The applicant claims he intended to file his PIF by July 18, 2001 and filed for a Legal Aid certificate on July 3, 2001. The certificate was received by his lawyer about July 12, 2001, but the applicant was then unable to attend his lawyer's office due to illness. He was then able to meet with his lawyer in early August 2001 but his lawyer was on vacation until the end of August. The applicant also claims he did not receive notice of the abandonment hearing before September 5, 2001. While he acknowledges having changed his address without informing the Refugee Division, he claims that he had a friend collect his mail from his old address during that period in time. The applicant's friend informed him that the letter was received sometime during the week of September 17-21.
[4] The applicant's motion to reopen was denied by the Refugee Division on March 1, 2002. No reasons were given.
[5] There is no express statutory authority that allows the Refugee Division to reopen a hearing. In the absence of express statutory authority, a tribunal cannot generally set aside its own decisions unless there has been a breach of natural justice, see Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 at pp. 293-294 (C.A.). The sole issue in this application is whether there was a breach of natural justice that justified the re-opening of the applicant's claim.
[6] The Court has determined that none of the rules of natural justice were breached in this case. The respondent has provided an affidavit from Karen Miranda, a legal assistant with the Department of Justice in Toronto. Attached as exhibits are copies of the notice of the abandonment hearing and of a statement of service dated August 13, 2001 showing the notice was sent to the applicant's old address by pre-paid regular mail. In contrast, the applicant has not provided the Court with an affidavit from, or even the name of, his friend who allegedly checked at his old address for mail. On the balance of probabilities, the Court finds the notice of the abandonment hearing was sent to and received at the applicant's old address on time.
[7] Furthermore, it was the responsibility of the applicant to inform the Refugee Division about his change of address and to keep in contact with the Refugee Division regarding the status of his case, see Mussa v. Canada (Immigration Refugee Board), [1994] F.C.J. No. 2047 (T.D.) (QL). The Refugee Division cannot be expected to keep track of the whereabouts of all refugee claimants. As Madame Justice Reid said in Capelos v. Canada (Minister of Employment & Immigration) (1991) 43 F.T.R. 280 at page 2:
...An individual has a responsibility to take initiatives and actively pursue the claims being made. It is not sufficient to place oneself in a position where communication is difficult or non-existent and then plead lack of knowledge of what occurred, as a grounds for seeking an extension of the time limits.
[8] Finally, the applicant's explanation of why he did not submit his PIF on time is not convincing. The applicant claims it was partly due to illness. Yet his affidavit is vague on this point and no additional evidence (i.e. a medical certificate) was submitted to corroborate his claim. The claim that his lawyer was on vacation is simply not a sufficient basis upon which to reopen a hearing. It was the applicant's responsibility to ensure his PIF was filed on time. Regardless of whether he had notice of the abandonment hearing, the applicant knew his PIF was overdue and should have either filed it immediately or at the very least, informed the Refugee Division of why it had not been filed. Immigration matters are proceedings to be carried on with dispatch, and reasonable diligence.
[9] Neither party has proposed a question for certification. The Court declines to certify a question.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1343-02
STYLE OF CAUSE: JOSE ALEJANDRO SERRAHINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 15, 2003
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: WEDNESDAY, APRIL 16, 2003
APPEARANCES BY: Mr. Marc Boissonneault
For the Applicant
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD: Marc Boissonneault
Barrister and Solicitor
Canada Trust Tower
480 University Avenue
Suite 601
Toronto, Ontario
M5G 1V2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030416
Docket: IMM-1343-02
BETWEEN:
JOSE ALEJANDRO SERRAHINA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER