Citation: 2004 FC 1689
Toronto, Ontario, December 2nd, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
IYOHA, PRECIOUS TAIWO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Refugee Protection Division of the Immigration and Refugee Board found that Precious Taiwo Iyoha's refugee claim had been abandoned because of her failure to file a Personal Information Form (or 'PIF') withing the 28-day time period provided for in the Refugee Protection Division Rules.
[2] Ms. Iyoha did not attend at the abandonment hearing. Her motion to have her claim re-opened was subsequently dismissed by the Board, which found that there had been no breach of natural justice in relation to the abandonment proceedings.
[3] Ms. Iyoha now seeks judicial review of the Board's refusal to re-open her refugee claim, asserting that she never intended to abandon her refugee claim. Ms. Iyoha says that she had no notice of the abandonment proceedings, resulting in a breach of natural justice.
Chronology of Events
[4] It is very difficult to get a clear picture of the history of this matter, as Ms. Iyoha's affidavits are confusing, and, on some points, clearly inaccurate. Further, the affidavits are also somewhat vague and non-specific, and occasionally internally inconsistent.
[5] In setting out the chronology of events, I have had regard to Ms. Iyoha's affidavits. In addition, I have also closely examined the certified tribunal record.
[6] Ms. Iyoha is a citizen of Nigeria. On March 28th, 2003, she left Nigeria, fleeing what she says was an abusive relationship with her husband. Ms. Iyoha deposes that she arrived in Canada on April 11th, 2003, although her PIF indicates her date of arrival as April 1st, 2003.
[7] Ms. Iyoha applied for refugee status on April 11, 2003. She was given a PIF to complete and return to the Board on or before May 9th, 2003.
[8] Here, Ms. Iyoha's evidence becomes very unclear. In the affidavit that Ms. Iyoha swore in support of her application for judicial review, she says that on April 11, 2003, she took the PIF to Christian Chijindu, who was then representing her. However, in the affidavit that she swore in support of her motion to re-open her refugee claim, Ms. Iyoha deposes that she took the PIF form to Gladys Aghimien on April 11, 2003. Ms. Iyoha identifies Ms. Aghimien as the counsel that she retained to replace Mr. Chijindu.
[9] In the affidavit that Ms. Iyoha swore in support of her motion to re-open her refugee claim, she goes on to say that Ms. Aghimien was unable to prepare her PIF in time, due to difficulties with Legal Aid. Ms. Iyoha then says that she attended at Ms. Aghimiem's office "on May 2003", to sign the PIF. Ms. Iyoha gives no indication in either affidavit when in May it was that she signed her PIF.
[10] Ms. Iyoha deposes that when she attended at Ms. Aghimien's office to sign the PIF, she was told that the PIF had already been filed. She goes on to say "Then I have to sign another copy on June 2, 2003." No explanation is provided as to why she was asked to sign another PIF, and her affidavits are unclear as to whether or not she was aware that her PIF had not been filed within time.
[11] Further confusing the matter is a letter in the certified tribunal record from Mr. Chijindu dated May 22, 2003. This letter indicates that Mr. Chijindu had just been retained, and asked for an extension of time in which to file Ms. Iyoha's PIF. The PIF was approximately two weeks late at this point. Mr. Chijindu justifies the request for an extension, saying that he needed additional time to interview Ms. Iyoha and prepare the document.
[12] Neither of Ms. Iyoha's affidavits address this letter, which seemingly flies in the face of her claim that she had discharged Mr. Chijindu and hired Ms. Aghimien several weeks earlier.
[13] Ms. Iyoha says that she never received notice that an abandonment hearing had been scheduled in relation to her refugee claim from the Board. According to the tribunal record, notice of the abandonment hearing was sent to Ms. Iyoha at a Queen Street address on May 13, 2003.
[14] Ms. Iyoha deposes that she has always resided on Finch Avenue, and that her address never changed. However, a review of the tribunal record discloses that over the time that her claim was before the Board, Ms. Iyoha provided the Board with at least three different addresses.
[15] Every notice sent by the Board, including the notice of the abandonment hearing, was sent to the most recent address provided by Ms. Iyoha. Indeed, the Queen Street address was given to the Board by Ms. Iyoha on April 17, 2003, less than a month before notice of the abandonment hearing was sent to her.
[16] Ms. Iyoha also deposes that neither Mr. Chijindu nor Ms. Aghimien received notice of the abandonment hearing. This is not surprising, given that neither counsel was on record as representing Ms. Iyoha when notice of the abandonment hearing was served on Ms. Iyoha by mail on May 13, 2003.
[17] On June 9, 2003, Ms. Iyoha's refugee claim was found by the Board to have been abandoned. By letter dated September 30, 2003, Ms. Iyoha was notified that she was the subject of a removal order. She deposes that this was the first time that she became aware that there had been an abandonment hearing in her case, and that her refugee claim had been declared to have been abandoned.
[18] On October 14, 2003, Ms. Iyoha moved to have her claim re-opened. This application was refused by the Board.
The Board'sDecision
[19] The Board found that Ms. Iyoha had failed to exhibit sufficient diligence in making the Board aware of changes to her address. In this regard, the Board noted that there was no change of address information recorded on the Board's file, and that notices forwarded to Ms. Iyoha had been returned as undeliverable.
[20] According to the Board, Mr. Chijindu was advised that a request for an extension of time in which to file a PIF would have to be dealt with at the abandonment hearing. From this the Board concluded that "I have no reason to believe, therefore, that both counsel and applicant ought to have been awar[e] o[f] the show cause (PABA) hearing on June 9, 2003." (sic)
[21] Although it actually says the opposite, when read in context, I understand the Board to be saying that it was of the view that Ms. Iyoha and her counsel ought to have been aware of the abandonment hearing on June 9, 2003.
[22] The Board also did not accept the explanation offered by Ms. Iyoha for the delay in filing her PIF, which related to difficulties she encountered in getting legal aid.
[23] Finally, having concluded that there was no breach of natural justice in relation to the abandonment hearing, the Board dismissed Ms. Iyoha's application to re-open her claim.
Issue
[24] Was there a breach of natural justice in relation to Ms. Iyoha's abandonment hearing?
Analysis
[25] The burden is on Ms. Iyoha to demonstrate that the Board erred in its conclusion that her refugee claim should not be re-opened. Given the wholly inadequate state of the record before me, I find that Ms. Iyoha has failed to do so here.
[26] Ms. Iyoha submits that she is an innocent victim, and that she was badly let down by both Mr. Chijindu and Ms. Aghimien.
[27] It is, however, unclear from the record before me precisely who was acting for Ms. Iyoha at any given time, or when counsel was retained. Neither counsel has submitted an affidavit, and as noted above, Ms. Iyoha's own affidavits are replete with errors, omissions and inconsistencies. Further, the affidavits do not accord with documents in the tribunalrecord, including documents originating with Ms. Iyoha herself.
[28] Rule 4 (3) of the Refugee Protection Division Rules impose an obligation on refugee claimants to keep the Board apprised of their whereabouts. In this regard I adopt the comments of Justice Kelen in Serrahina v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 622, where he noted that the Board cannot be expected to keep track of the whereabouts of claimants. (See also Rule 55 (4) of the Refugee Protection DivisionRules, SOR/2002-228.)
[29] If I accept Ms. Iyoha's affidavit at face value, it seems that she was living on Finch Avenue in May of 2003. However, she did not provide that address to the Board until her PIF was filed on June 2, 2003 - more than two weeks after notice of the abandonment hearing had been sent to her.
[30] While maintaining that Mr. Chijindu was not in fact representing her in May of 2003, Ms. Iyoha submits that at the very least, once the Board received Mr. Chijindu's May 22, 2003 letter, it should have gone back through its files, and ensured that all relevant documentation was forwarded to counsel.
[31] It should first be noted that no request was made by Mr. Chijindu for copies of the documents in Ms. Iyoha's Board file. Further, there is nothing in the Refugee Protection Division Rules that requires the Board to do this.
[32] For these reasons, this application is dismissed.
Certification
[33] Counsel for the respondent proposed a question for certification relating to whether there is a duty on the Board to provide new counsel with documents previously sent to a refugee claimant.
[34] Even if I were to conclude that this is could be an appropriate question for certification, given the unsatisfactory state of the record here, I decline to certify the question in this case.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is dismissed.
2. No serious questionof general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9014-03
STYLE OF CAUSE: IYOHA, PRECIOUS TAIWO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: DECEMBER 1, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: DECEMBER 2, 2004
APPEARANCES BY:
Ms. Mercy Dadepo For the Applicant
Ms. Mary Matthews For the Respondent
SOLICITORS OF RECORD:
Mercy Dadepo
Barrister & Solicitor
Toronto, Ontario For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20041202
Docket: IMM-9014-03
BETWEEN:
IYOHA, PRECIOUS TAIWO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER