Digests

Ali v. Canada (Minister of Citizenship and Immigration)

IMM-6708-03

2004 FC 1153, Mosley J.

19/8/04

13 pp.

Judicial review of Immigration and Refugee Board, Refugee Protection Division's dismissal of application to reopen refugee protection claim pursuant to Refugee Protection Division Rules (RPD Rules), r. 55--Applicant 23-year-old citizen of Pakistan--Came to Canada in August 1999 on visitor's visa, obtained student visa in February 2000--In late February 2003 initiated refugee claim and deemed eligible to proceed with claim on March 5, 2003--Personal Information Form not submitted on time--Board not accepting applicant's explanation as demonstrating clear intention to pursue refugee claim--Declaring refugee claim abandoned by notice dated May 20, 2003--Request to reopen refugee claim subsequently denied--Whether reasons required for this decision under Immigration and Refugee Protection Act (Act), s. 169, and if so, whether reasons provided adequate--Whether Board erred in failing to consider applicant's intent to pursue refugee claim in determining whether Board should reopen refugee claim--Respondent submitting Board not required, pursuant to either Act or RPD Rules, to provide reasons for decision to refuse application to reopen refugee claim--Relying on Faghihi v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 249 (T.D.); affd (2001), 274 N.R. 358 (F.C.A.) in support of argument decision under review interlocutory, therefore duty to provide reasons under s. 169 not arising--Faghihi providing guidance with regard to question of whether decision made on application under RPD Rules, r. 55(1) interlocutory or final--In Faghihi, Evans J. (as he then was) stating "motion to reopen decision interlocutory matter because if granted, it will not be a final disposition of the case"--Accordingly, Act, s. 169 not coming into play and RPD Rules, r. 61 not applicable--Although decided under different statutory scheme, no cogent reason to depart from Faghihi reasoning--But, procedural fairness requiring some form of reasons given importance of decision to applicant-- Applicant received reasons in form of Registrar's response to Court's request for reasons under Federal Court Immigration and Refugee Protection Rules, r. 9--Such reasons sufficient as setting out Board member's actual reasons for decision, giving applicant understanding of why application to reopen rejected--Under RPD Rules, r. 55, applications to reopen may only be allowed where breach of natural justice can be established--R. 55 intended to codify case law establishing Board having inherent jurisdiction to reopen refugee claim only where principle of natural justice breached--No reviewable error in decision--Application dismissed-- Refugee Protection Division Rules, SOR/2002-228, rr. 55, 61--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 169--Federal Court Immigration and Refugee Protection Rules, SOR/93-22 (as am. by SOR/2002-232, s. 1), r. 9.