CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Liang v. Canada (Minister of Citizenship and Immigration)
IMM-141-04
2004 FC 989, Beaudry J.
14/7/04
9 pp.
Judicial review of Immigration and Refugee Board's Refugee Protection Division decision declaring applicant's refugee claim abandoned under Refugee Protection Division Rules, s. 58(2)--Issue: whether unreasonable to declare claim abandoned--Applicant arrived by ship August 26, made refugee claim October 15, 2003--Says given Personal Information Form (PIF) to complete on October 22--Form due at Board by November 19--On October 31, Board received letter from applicant's counsel seeking extension of time as recently retained, no answer to documents disclosure request--On November 13, Board wrote denying time extension--On same day Board wrote to Citizenship and Immigration Canada (CIC) indicating "Minister's information" to be filed forthwith--On November 14 counsel again faxed Board seeking time extension until 5 days after receiving CIC information--November 19 Board letter denied request--Lawyer finally received documents on November 27--Board received completed PIF on December 3-- Applicant, counsel appeared at abandonment hearing on December 9--Board ruled claimant failed to provide satisfactory explanation for delay, submission of PIF 6 days before hearing, presence at hearing inadequate to establish claim not abandoned--When counsel wrote November 21 letter, aware of possible consequences--Not going to allow claimants, counsel to set own rules of procedure--Nothing unfair in requiring claimants to state story even if must do so without benefit of CIC materials--S. 58(3) provides Division must, at abandonment hearing, consider explanation given, any other relevant information, including fact claimant ready to start or continue proceedings--Standard of review: reasonableness simpliciter (Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.))-- Chairperson's Guideline 5 says non-receipt of copy of Port of Entry notes not reason to grant time extension to file PIF--Board's reasons not explicitly referring to s. 58(3), though opening sentence alludes to Rule's wording--Relevant information overlooked by Board: Board's reply to second time extension request was dated November 19, date PIF due--Applicant had no time to comply with Board's decision--Incomprehensible how Board could conclude "after the dismissal of the second application there remained several days for the claimant to file his completed PIF within the timeframe but he failed to do so"--In giving negative answer on due date, Board violated basic procedural fairness--That claimant, accompanied by counsel, present at hearing demonstrated readiness to start proceedings--Not a case where claimant had shown no interest in pursuing refugee claim--Counsel had been diligent in pursuing matter-- Application allowed--Refugee Protection Division Rules, SOR/2002-228, rr. 6(1), 58(2),(3).