Federal Court Decisions

Date: 20070529

Docket: IMM-2122-06

Citation: 2007 FC 561

Ottawa, Ontario, May 29, 2007

PRESENT:     The Honourable Mr. Justice O'Reilly

BETWEEN:

TERRENCE CLAUDIUS JOHNSON

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Mr. Terrence Johnson’s refugee claim got lost in the system. He originally applied for refugee status in 1988, after arriving in Canada from Trinidad. He checked on the progress of his application several times but was told there was a long backlog and he would simply have to wait. In the meantime, he was given a work permit and a social insurance number.

[2]               No further developments occurred until 2003 when, after a traffic violation, Mr. Johnson was informed that he had no status in Canada. In order not to be removed, he made a second refugee claim. In due course, that claim was heard and decided in 2006 by a panel of the Immigration and Refugee Board. At his hearing, Mr. Johnson argued that the Board had lost jurisdiction over his claim due to the passage of time. He also submitted that he continues to be at risk of political persecution in Trinidad. The Board decided that it had jurisdiction to entertain Mr. Johnson’s claim and found that he was no longer at risk of persecution.

[3]               Mr. Johnson argues that the Board erred in its finding that it continued to have jurisdiction over his claim. I cannot conclude that the Board erred and must, therefore, dismiss this application for judicial review.

I.  Issue

[4]               Did the Board have jurisdiction to deal with Mr. Johnson’s refugee claim?

II. Analysis

[5]               Courts have acknowledged, in the context of immigration matters, the possibility that an unreasonable delay by a decision-maker may result in a claimant being treated unfairly. However, the claimant must show that he or she was somehow prejudiced by the delay: Qazi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1667, [2005] F.C.J. No. 2069 (T.D.) (QL); Rana v. Canada (Minister of Citizenship and Immigration), 2005 FC 974, [2005] F.C.J. No. 1215 (T.D.) (QL); Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.). As Justice James Hugessen noted in Akthar, sometimes claimants actually benefit from a delay – some may be granted amnesty; others may be able to reinforce their cases with further evidence or more compelling arguments; and some may be able to lively safely in Canada while the turbulent circumstances in their countries of origin subside.

[6]               Mr. Johnson’s case seems to fit into this last category. When he arrived in Canada, he alleged political persecution by the party then in power – the United Labour Front. The party he actively supported, the People’s National Movement, is now in power. In the meantime, Mr. Johnson has lived and worked peacefully and safely in Canada, and has founded a successful business here. He suggests that, if his claim had been heard on a timely basis, he would have succeeded to establish a credible basis for his claim, had the benefit of automatic humanitarian and compassionate considerations and long since achieved permanent status in Canada. Perhaps. On the other hand, he will now have the benefit of a full review on humanitarian and compassionate grounds on the basis of having established himself in Canada successfully over a long term. In a sense, then, the long delay in dealing with his refugee claim may end up being to his benefit.

[7]               As the respondent has conceded, the handling of Mr. Johnson’s refugee claim was an “administrative disaster”. His file was merged with that of another claimant with the same name. It took years to straighten this out. These circumstances, and the corresponding hardships endured by Mr. Johnson, will no doubt be taken into account by the officer considering his application for humanitarian and compassionate relief.

[8]               I can find no basis, however, for overturning the Board’s decision on Mr. Johnson’s refugee claim. I must, therefore, dismiss this application for judicial review. Counsel asked for an opportunity to make submissions regarding a question for certification. I will entertain any submissions received within ten days of this judgment.

JUDGMENT

THIS COURT’S JUDGMENT IS THAT:

1. The application for judicial review is dismissed;
   
   
2. The Court will consider any submissions regarding a certified question that are filed within ten (10) days of the issuance of these reasons.

“James W. O’Reilly”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-2122-06

STYLE OF CAUSE:                          TERRENCE CLAUDIUS JOHNSON v. THE MINSITER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      May 22, 2007

REASONS FOR JUDGMENT

AND JUDGMENT:                          O’REILLY J.

DATED:                                             May 29, 2007

APPEARANCES:

SOLICITORS OF RECORD: