VB5-03601

RPD File No. / N° de dossier de la SPR : VB5-03601 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Application to Reinstate Claimant(s) XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing N/A Date(s) de l'audience Place of Hearing In Chambers Lieu de l'audience Date of Decision February 16, 2016 Date de la décision and reasons et des motifs Panel Daniel Tucci Tribunal Counsel for the Claimant(s) Judith Boer Barrister and Solicitor Conseil(s) du (de la/des) demandeur(e)(s) d'asile Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Garett Toporowski Conseil du (de la) ministre REASONS FOR DECISION [1] These are the reasons for the decision in an application made by counsel for the claimant to reinstate the refugee claim of XXXX XXXX (the "claimant"). [2] Counsel for the claimant by way of letter January 18, 2016 requested that the Refugee Protection Division ("RPD") reconsider the decision to accept the claimant's withdrawal of his refugee claim. Although counsel for the claimant does not make specific reference to Refugee Protection Division Rule 60 (the "RPD Rules"),1 the panel accepts the January 18, 2016 correspondence as an application to reinstate a withdrawn claim. [3] In coming to this decision, the RPD has considered the correspondence from the claimant's counsel dated January 18, 2016, the Minister's response dated January 25, 2016 opposing the application to reinstate as well as the previous decision from the RPD dated January 7, 2016 as well as the submissions received from the claimant's counsel on December 24, 2015 as well as the claimant's affidavit and the Minister's submissions received on December 24, 2015. THE FACTS [4] The Canada Border Services Agency ("CBSA") forwarded the claimant's duly signed Notice of Withdrawal on December 4, 2015. Counsel for the claimant by way of letter dated December 14, 2014 informed the RPD that the claimant no longer wished to withdraw his refugee claim. [5] Once the Notice to withdraw the claim is filed with the RPD, the claim is considered withdrawn and no decision is required by the RPD. In this particular case, the claimant's counsel wrote to the RPD asking that the Notice of withdrawal not be accepted by the RPD as the claimant had changed his mind. At the time of counsel's letter, the processing of the withdrawal had not been completed by IRB staff. In light of this, the RPD requested submissions from the claimant's counsel and the Minister's counsel with respect to the Notice of withdrawal and whether the RPD should accept it. [6] Counsel for the claimant and counsel for the Minister provided the RPD with submissions on December 24, 2015. The RPD provided a response to the parties on January 7, 2016 whereby the RPD accepted the withdrawal. The RPD provided in that letter the reasons for accepting the withdrawal. [7] As noted previously, counsel for the claimant has asked the RPD to reinstate the withdrawn claim. Minister's counsel provided submissions dated January 25, 2016 opposing the reinstatement. [8] The RPD in reaching this decision is guided by sections 60(3) and 60(4) of the RPD Rules.2 The RPD must assess whether there was a failure to observe a principle of natural justice in accepting the withdrawal or if it is otherwise in the interests of justice to allow the application to reinstate. [9] The RPD is also guided by the case law3 in deciding this application. The RPD must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay.4 [10] The RPD acknowledges that the assessment of the application is twofold as outlined in section 60(3) of the RPD Rules. The RPD must assess first of all whether there was a failure to observe a principle of natural justice in this case and secondly, the RPD must decide if it is in the interests of justice to allow the application. NATURAL JUSTICE [11] The RPD finds that there was no failure to observe a principle of natural justice in this case. The claimant was detained by the CBSA on November 18, 2015 at the time that he made his refugee claim. The CBSA detained the claimant because the Minister was not satisfied with respect to his identity. The claimant was brought before the Immigration Division within 48 hours of his detention. He was provided with Duty Counsel, Mr. Warren Puddicombe at his detention review of November 20, 2015. The claimant was brought before the Immigration Division for his 7 day detention review on November 27, 2015. Once again, the claimant was afforded the opportunity to meet with Duty Counsel to discuss his detention and his refugee claim. Duty Counsel, Linda Mack was present at his detention review hearing. The claimant's detention was continued by the Immigration Division. [12] On that same day, the claimant indicated to the CBSA that he wished to withdraw his claim as he was uncertain how he would obtain identification documents under the name XXXX XXXX and he also indicated that he feared he could be detained indefinitely. [13] The CBSA did not accept nor did it seek to have the claimant complete a withdrawal form of his refugee claim at that time. Arrangements were made to bring the claimant from the detention facility to the CBSA Office in downtown Vancouver on November 30, 2015, which was the same day that his wife was required to report to the CBSA. The objective was to have the claimant speak to his wife prior to allowing him to complete the withdrawal form of his refugee claim. The claimant was hospitalized following a medical issue on the XXXX XXXX, 2015 and he was not able to speak to his wife on that day. [14] The claimant was then brought in to the CBSA office on December 4, 2015. The CBSA facilitated a phone call between the claimant and his wife. Following that conversation, the claimant once again indicated his desire to withdraw his refugee claim. [15] The CBSA prior to having the claimant complete the withdrawal form, put him in contact with Legal Aid Counsel, Chris Ghirardi. The claimant following his conversation with counsel Ghirardi informed the CBSA that he still wished to withdraw his claim. Following this, the CBSA facilitated a call between the claimant and his wife for a second time. Following the second call with his wife, the claimant indicated that he still wanted to withdraw his claim. The claimant was provided with a Punjabi interpreter and completed the Notice of Withdrawal of a Claim for Refugee Protection which the CBSA forwarded it to the RPD on December 4, 2015. [16] Counsel in the letter dated January 18, 2016 states that the RPD did not give sufficient consideration to the fact that the claimant was in detention during the entire time he has been in Canada and that the CBSA is an adverse party in the refugee proceeding. Counsel also states that the claimant's separation from his family and his psychological state were dismissed by the RPD in accepting his withdrawal. [17] The RPD finds that there has been no failure to observe a principle of natural justice in this case. As noted previously, the claimant was given access to legal counsel at various stages of the process. The claimant had access to Duty Counsel at his 48 hour and 7 day detention review. It would have been clear to the Duty Counsel representing him before the Immigration Division that he had made a refugee claim in Canada. Furthermore, there is no indication that he was prevented from discussing his detention and refugee claim with those counsels. [18] More importantly, the CBSA did not simply get the claimant to complete the withdrawal form as soon as he indicated his desire to do so. They facilitated a meeting between the claimant and his wife that was to take place on November 30, 2015. Unfortunately, this meeting did not take place as a result of a medical issue for the claimant. The CBSA facilitated a phone call between the claimant and his wife on December 4, 2015, approximately one week after his last detention review where he had been represented by Duty Counsel. Following the call with his wife, the claimant indicated that he still wanted to withdraw his claim. [19] The CBSA did not get the claimant to complete the withdrawal form following the call with his wife. The CBSA instead facilitated a phone call between the claimant and Legal Aid Counsel Ghirardi. The CBSA indicates in their December 23, 2015 letter to the RPD that the purpose of the call to Counsel Ghirardi was for the claimant to fully understand the implications related to the withdrawal of his claim. The claimant continued to indicate his desire to withdraw his claim following his call with Counsel Ghirardi. [20] Following this, the CBSA facilitated a second call between the claimant and his wife. The claimant indicated to the CBSA following this second call to his wife that he still wanted to withdraw his refugee claim. Only after taking all these steps did the CBSA provide the claimant with the withdrawal form that he duly signed. [21] Counsel for the claimant provided an affidavit from the claimant dated December 23, 2015. In the affidavit, the claimant states that he did not fully realize what he was signing or its consequences. He further adds that he has health problems and that he was taken to the hospital twice and he believed that he was dying and he was upset. [22] Counsel argues that the claimant's mental state should be considered when deciding this application. The panel finds that the claimant was aware of the consequences of his decision to withdraw his claim. He had access to counsel throughout his time in detention. He had counsel present for his detention review hearings and he was given the opportunity to speak to Duty Counsel about the implications of his decision with Counsel Ghirardi. He was also given the opportunity to speak to his wife twice prior to withdrawing his claim. [23] Although the claimant had an ongoing medical condition at the time, the RPD has not been presented with evidence showing that the claimant's psychological state at the time that he withdrew his claim was such that he was incapable of appreciating the nature of the decision he made. The panel therefore finds that the claimant has not established that there was a failure to observe a principle of natural justice in his case. On the contrary, the RPD finds that the CBSA took several reasonable steps to allow the claimant to make a reasoned decision prior to getting him to complete the withdrawal form. THE INTERESTS OF JUSTICE [24] The second consideration for the RPD under section 60(3) is whether it is in the interests of justice to allow the application. As noted in the case law, the interests of justice is a broad concept that goes beyond the principle of natural justice. The RPD finds that given the specific facts of this case, it would not be in the interests of justice to allow the application. [25] The RPD acknowledges that the application for reconsideration was made in a timely manner. Counsel for the claimant informed the RPD on December 14, 2015 that the claimant no longer wished to withdraw his refugee claim. Following the RPD's decision to accept the withdrawal, counsel for the claimant filed the application to reinstate the claim. Although the application has been made in a timely manner, the panel must consider what happened prior to the application to reinstate. As noted previously, the claimant was not the victim of a failure on the part of the CBSA or the RPD to observe a principle of natural justice. The claimant's decision was done with the advice of counsel and in consultation with his wife. Although the application was filed in a timely manner, the timeliness not sufficient to overcome the fact that the claimant had time to consult with counsel and his wife before completing the withdrawal form and that he freely chose to withdraw knowing what the consequences of that decision would be. [26] The RPD also takes into consideration that his wife and child are pursuing their refugee claims. This could be an important factor if the evidence before the RPD showed that the claimant was not in contact with his wife prior to making the decision to withdraw his claim. In this case, the claimant spoke to his wife on two occasions on December 4, 2015 and the purpose of the call was to discuss his withdrawal. One call was made before he consulted with legal counsel and a second call was made after his consultation with legal counsel. The RPD finds that the claimant made the decision to withdraw his refugee claim knowing that his wife and child would pursue their claim. [27] The RPD has also considered the claimant's health problems. The evidence before the RPD indicates that the claimant received medical attention in Canada at least twice. It appears that the claimant is suffering from a heart ailment. The RPD accepts that the claimant was upset and distressed with his medical condition. That being said, the RPD finds that the claimant's medical condition was not sufficient to impact the decision he made to withdraw his claim. The RPD finds that the claimant freely and knowingly made the decision to withdraw his refugee claim despite his medical condition. The RPD has not been presented with any medical reports stating that the claimant's medical condition impaired his ability to understand his actions. [28] As noted in the case law, RPD Rule 60 is exceptional and is not designed to protect applicants from the consequences of their freely chosen course of conduct even where they have made the decision or taken steps which did not work out as they may have hoped.5 [29] The RPD finds that the claimant made the decision to withdraw his refugee claim freely and that there was no failure to observe a principle of natural justice in his case. The RPD further finds that the claimant has not established that it would be interests of justice to allow the application to reinstate his claim. [30] The RPD therefore dismisses the application to reinstate the claim of XXXX XXXX. (signed) "Daniel Tucci" Daniel Tucci February 16, 2016 Date 1 Refugee Protection Division Rules ("RPD Rules"), SOR/2012-256. 2 Sections 60(3) and (4) of the RPD Rules: 60(3) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice or it is otherwise in the interests of justice to allow the application. (4) In deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay. 3 Ohanyan v. Canada (Minister of Citizenship and Immigration), 2006 FC 1078, as well as Peixoto v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 CanLII 79325 (CA IRB). 4 Section 60(4) of the RPD Rules. 5 Ohanyan at paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : VB5-03601 RPD File No. / N° de dossier de la SPR : VB5-03601