Date: 20030326
Docket: IMM-2532-02
Neutral citation: 2003 FCT 349
Toronto, Ontario, Wednesday the 26th day of March, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
GODFREY JEFFREY
DAWN PATRICK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Mr. Godfrey Jeffrey and Ms. Dawn Patrick (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated May 22, 2002. In its decision, the Board refused the Applicants' motion to reinstate their claims for Convention refugee status.
[2] The Applicants, who have been in Canada for several years, filed their claims for Convention refugee status on May 31, 2000. Their Personal Information Forms ("PIFs") were received by the Board on November 6, 2000. The hearing of the claims was scheduled for September 18, 2000 but upon the Board's initiative, the hearing was rescheduled for October 1, 2001.
[3] The Applicants did not appear at the hearing and the Hearing Information Sheet for October 1, 2001 bears the following notation:
Counsel called RCO to say claimant is withdrawing. But no withdrawal form received. Scheduled for show cause.
[4] On October 18, 2001, the Board issued a notification confirming withdrawal of the Applicants' Convention refugee claims. This notification refers to receipt of a written withdrawal on October 11, 2001.
[5] On April 23, 2002, the Board received a notice of motion on behalf of the Applicants seeking reinstatement of their claims. The Board issued its decision on May 22, 2002 and denied the motion.
[6] In my opinion, the present application should be allowed. The reasons of the Board do not show that the Board applied the correct test as set out in Rule 34 of the former Convention Refugee Determination Division Rules, SOR/93-45 (the "Rules"). Rule 34 provides as follows:
| 34. (1) A party who has withdrawn a claim or application may, by motion made pursuant to subrules 28(2) to (8), apply to the Refugee Division for reinstatement of the claim or application. (2) The application for reinstatement shall be served on the Minister even where the Minister is not a party. (3) The Refugee Division may grant the application for reinstatement of a claim or application if it is satisfied that there are sufficient reasons why the claim or application should be reinstated and that it is in the interests of justice to do so. |
|
34. (1) La partie qui a renoncé à une revendication ou qui a retiré une demande peut en demander le rétablissement à la section du statut par voie de requête conformément aux paragraphes 28(2) à (8). (2) La demande de rétablissement est signifiée au ministre même dans le cas où il n'est pas une partie. (3) La section du statut peut faire droit à la demande de rétablissement si elle est convaincue qu'il y a des motifs suffisants d'agir ainsi et que l'intérêt de la justice le justifie. |
[7] The reasons do not show that consideration was given to the "interests of justice" in determining the outcome of the motion to reinstate. In my opinion, this constitutes a reviewable error by the Board. Although the outcome of the motion may still be the same, having regard to the evidence before the Board, the failure to demonstrate consideration of the applicable legal test justifies intervention by this Court.
[8] The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Refugee Protection Division for reconsideration.
[9] Although counsel for the Applicants submitted three questions for certification, I am not persuaded that this case gives rise to any serious question of general importance. No question will be certified.
[10] Finally, I note that costs were requested by the Applicants. The Respondent opposes this relief on the basis that there are no special reasons to justify such an order, having regard to the Federal Court Immigration and Refugee Protection Rules, SOR/2002-232.
[11] I agree with the submissions of the Respondent. There will be no order of costs.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Refugee Protection Division for reconsideration. There is no question for certification. There is no order of costs.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2532-02
STYLE OF CAUSE: GODFREY JEFFREY AND DAWN PATRICK
Applicants
- and -
The Minister of Citizenship and Immigration
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MARCH 25, 2003
REASONS FOR ORDER AND
ORDER: HENEGHAN J.
DATED: WEDNESDAY, MARCH 26, 2003
APPEARANCES BY: Osborne G. Barnwell
For the Applicants
Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Osborne G. Barnwell
Barrister and Solicitor
277 Richmond St. W.
Toronto, ON M5V 1X1
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030326
Docket: IMM-2532-02
BETWEEN:
GODFREY JEFFREY AND DAWN PATRICK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER