MA9-02480

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / No de dossier de la SPR : MA9-02480 MA9-02481 Private Proceeding Huis clos APPLICATION TO REOPEN Applicant Demandeur XXXX XXX XXXXXXXX XXXXXXX XXXXX XXXX XXXXXXX XXXXX Respondent Intimé Minister of Citizenship and Immigration Date(s) of Hearing Date(s) de l'audience Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision January 6, 2011 Panel Tribunal Me Ruth Delisle Claimant's Counsel Conseil du demandeur d'asile Me Alain Vallières Tribunal Officer Agent du tribunal N/A Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre N/A APPLICATION TO REOPEN [1] The undersigned has received an application to reopen a hearing, in accordance with rule 55 of the Refugee Protection Division Rules,1 concerning claimants XXXX XXX XXXXXXXX XXXXXXX and his wife XXXXX XXXX XXXXXXX XXXXX, following a decision of the Immigration and Refugee Board (IRB) rendered on October 20, 2010, in which Member Phares Pierre determined that their refugee protection claim had been abandoned. [2] On February 16, 2009, the Refugee Protection Division (RPD) of the IRB received the claimants' refugee protection claim. [3] On February 26, 2009, the claimants informed the IRB that their address was XXXX XXXX, XXXX XXXX, in Montréal, Quebec XXXXX. The form to that effect was signed by the female claimant. [4] On March 5, 2009, the claimants made an address change to XXXX XXXX XXXX, XXXX XXXX, in Montréal, Quebec XXXX XXXX. The male claimant's signature is on the bottom of the form they used for this. [5] On March 16, 2009, the claimants signed their Personal Information Forms (PIFs) and submitted them to the IRB. On page 12 of their PIFs, the claimants state that they still live at XXXXXXXXXXXXXXXXXXXX, in Montréal, Quebec XXXX. [6] On August 10, 2010, the claimants were summoned to appear at a hearing scheduled the following October 8. The notice to appear was sent to the last address on file, that is, XXXXXXXXXXXXXXXXXXXXXX, in Montréal, Quebec XXXX. That notice to appear was returned to the IRB on September 30, 2010, with [translation] "moved" indicated on it. [7] On October 1, 2010, Me Alain Vallières, the lawyer on the file, informed the Board that he was no longer able to represent the claimants and that, consequently, he was withdrawing from the file. On October 8, 2010, the hearing date, the claimants did not report to the IRB, and the member assigned to the file began the abandonment procedures; a hearing regarding the failure to appear was scheduled for October 20, 2010, at 1:14 p.m. A notice to appear for this was sent to the claimant on October 8, 2010, to XXXX XXXX, XXXXXX, in Montréal, Quebec XXXXX, the address still indicated on file. [8] On October 20, 2010, the claimants did not appear at their hearing to explain why the RPD should not proceed with the abandonment of their refugee protection claim. Consequently, the panel determined the claimants' refugee protection claim to be abandoned, and a notice to this effect was sent to them on October 22, 2010, to the same address. The notice to appear at the October 20, 2010, hearing was returned to the Board on October 27, 2010, still indicating [translation] "moved." The notice of decision was also returned to the IRB on November 24, 2010. [9] On December 3, 2010, the male claimant completed and signed a notice to the IRB of contact information, in which it is indicated that their address is XXXXXXXXXXXXXXXXXXXXXX, in Montréal, Quebec XXXXX. On December 3, 2010, the claimants also signed and faxed to the IRB the form IMM 5476, Use of a Representative, authorizing Alain Vallières to represent them again. [10] On December 8, 2010, through Alain Vallières, the claimants submitted an application to reopen, in which it is alleged that on June 15, 2010, the female claimant went to the Immigration Canada office and to the IRB office, in order to change her address after she moved. It is alleged that the female claimant filled out the form to that effect, made available to claimants at the IRB. However, the female claimant was allegedly informed that the form had to be signed by her husband, the principal claimant in their file. The female claimant then supposedly went to Alain Vallières's office to inform him of her new address, but his office was closed. A person from Mr. Vallières's office asked a friend of the claimants what became of them. When the message was sent to the claimants through their friend, the claimants allegedly contacted Mr. Vallières immediately. The claimants stated that they were never informed about a hearing being held for their file and that they had always wanted to pursue their refugee protection claim. It is alleged that the communication problems stem partly from the female claimant's difficulties expressing herself in Canada's official languages. Consequently, the claimants alleged that they were not able to be heard, in violation of the principles of natural justice. [11] In her affidavit, which accompanies the application to reopen, the female claimant explained that when she went to the IRB, at the Guy-Favreau Complex, her address change form was not accepted because it had to be signed by her husband. She stated that she went to her lawyer's office to inform him of her change of address, but the office was closed. She added: [translation] "In my mind, the change of address had been made." She stated that her friend went to the same lawyers' office on December 2, and after that, they went to the IRB on December 3, to make their change of address, and then to their lawyer's office to rectify the situation. [12] The RPD's jurisdiction in terms of reopening a hearing is very limited. In fact, once it has rendered its decision, the RPD has discharged its duty (functus officio) and cannot exercise it a second time in the same case, except when there is a violation of the rules of natural justice.2 [13] Firstly, the panel is of the opinion that it is important to cite the rule from the Refugee Protection Division Rules that states the following: (1) The claimant must provide the claimant's contact information in writing to the Division and the Minister. Time limit (2) The claimant's contact information must be received no later than 10 days after the claimant received the Personal Information Form. Change to contact information (3) If the claimant's contact information changes, the claimant must without delay provide the changes in writing to the Division and the Minister. Claimant's counsel (4) A claimant who is represented by counsel must, on obtaining counsel, provide the counsel's contact information in writing to the Division and the Minister. If that information changes, the claimant must without delay provide the changes in writing to the Division and the Minister. [14] To begin, the panel notes that this rule does not state that the address change must be done by the principal claimant in the file. [15] In any case, even if the Registry did provide that information to the female claimant, that is, that the change of address form had to be signed by her husband, the panel wonders why he did not do it. The panel also wonders about the female claimant's statement that, in her mind, the change of address had been made, when her change of address form had not been accepted by the IRB, as she claimed. Given that the female claimant alleged that Mr. Vallières's office was closed when she supposedly went there on June 15, 2010, the panel also cannot explain the reasons why the female claimant and/or her husband did not telephone or return to see their lawyer to inform him of their change of contact information so that he, who also received the notice to appear dated August 10, 2010, could contact them. [16] The fact that the claimants failed to make their change of address with the IRB is not a failure to observe a principle of natural justice. It is instead a fact that is attributable to the claimants themselves and for which they alone are responsible. It is the claimants' responsibility to ensure that their file is ready to proceed when required. As such, it was incumbent upon them to ensure that their contact information was up to date with the IRB and not to simply presume subjectively that their change of address had been made. The claimants failed to do this, with the known consequences. Their negligence cannot be considered to be a violation of the rules of natural justice. [17] A review of the application, the affidavit and the entire file does not allow the panel to come to a conclusion in favour of the claimants. In fact, the member responsible for the file rendered a decision by adhering, throughout the proceedings, to legal procedure and by applying the rules of natural justice.. [18] For these reasons, the application to reopen is dismissed. Ruth Delisle Me Ruth Delisle January 6, 2011 Date IRB translation Original language: French REFUGEE PROTECTION DIVISION / APPLICATION TO REOPEN / RULES / NOTICE TO APPEAR / CHANGE OF ADDRESS / FAILURE TO COMPLY / NATURAL JUSTICE / MALE / SPOUSE / NEGATIVE / MEXICO 1 55(1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned. (2) The application must be made under rule 44. (3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister. (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. 2 Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.). --------------- --------------- --------------- --------------- RPD File No. / No de dossier de la SPR : MA9-02480 MA9-02481 6