Digests

Williams v. Canada (Minister of Citizenship and Immigration)

IMM-5847-01

2002 FCT 1306, Beaudry J.

23/12/02

12 pp.

Judicial review of Immigration Appeal Division (IAD) of Immigration and Refugee Board (IRB) decision denying applicant's motion to reopen appeal--Effect of decision to permit respondent to deport applicant to Grenada--Whether IAD failed to exercise jurisdiction properly by failing to consider relevant evidence in deciding whether or not to reopen appeal--Applicant has extensive criminal record in Canada including offences for theft, robbery, break and enter, possession of narcotics--On March 6, 2000, notice to appear (notice) sent by IAD to applicant--Notice commanded applicant to attend at IAD in order to set date for appeal-- Applicant failed to report to IAD--Consequently IAD declared appeal abandoned--On November 16, 2001, applicant served and filed motion seeking order reopening appeal--Motion dismissed by IAD on December 7, 2001-- Factors to consider in deciding application to reopen appeal set out in Plummer v. Canada (Minister of Employment and Immigration) (1993), 26 Imm. L.R. (2d) 58 (I.A.D.); Watson v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D. No. 1271 (QL)--IAD should consider (i) whether applicant knew date of hearing; (ii) whether applicant knew consequences of deportation order; (iii) whether applicant had valid reason for not attending hearing; (iv) whether applicant acted quickly and with due dispatch in seeking to reopen appeal; and (v) whether applicant had been denied natural justice or fairness in dealings with IRB or IAD--Applicant denied having received notice--To impose on IAD duty to effect personal service on every claimant appearing before IAD simply to prevent claimant from denying reception of notice would be impractical--IAD cannot therefore be faulted for method of service--Applicant clearly knew consequences of deportation order--Affidavit filed by applicant in support of motion to reopen appeal clearly establishing applicant fully aware of effects of deportation order--Applicant admitted not attending hearing because in state of confusion due to drug addiction--Explanation understandably garnered no sympathy from Court--In present case, applicant unable to satisfy member of IAD regarding valid reason for not attending hearing--Clear applicant did not act quickly, with due dispatch in seeking to reopen appeal--Appeal declared abandoned on April 14, 2000--Applicant did not take steps to challenge decision until June 2001--Applicant unable to justify delay in responding to declaration regarding abandon of claim--Analysis of granting of application to reopen therefore fails on element of test set out in Plummer--As to procedural fairness, applicant did not fully enjoy procedural fairness due entirely to circumstances within applicant's control-- Regarding failure to consider subsequent circumstances (wedding, birth of child), these two new elements were before panel prior to December 2001 decision--Court cannot conclude panel ignored evidence--Even though evidence not mentioned, not fatal to panel's decision--Application dismissed.