CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Anjum v. Canada (Minister of Citizenship and Immigration)
IMM-5314-03
2004 FC 496, Phelan J.
2/4/04
9 pp.
Judicial review of decision of Immigration and Refugee Board (IRB) declaring applicants' claim abandoned despite filing of Personal Information Forms (PIFs) well in advance of abandonment hearing--Core of IRB's jurisdiction to make abandonment determination found in Immigration and Refugee Protection Act (Act), s. 168(1): proceeding abandoned if applicant in default in proceedings, including failing to appear, to provide information required or to communicate with Division--Phrase "default in the proceedings" appears in context of other phrases indicating legislative intent to deal with disregard of IRB's process, deliberate or negligent-- Simple late filing, per se, not connoting such element of disregard--No evidence of disregard--Request for legal aid promptly filed, PIFs filed at earliest opportunity after counsel authorized to act-- Applicants proceeded as diligently as possible--Refugee Protection Division Rules further circumscribing IRB's discretion in abandonment proceedings by requiring Division to consider fact claimant ready to start or continue proceedings--IRB referred to evidence being insufficient for purposes of extension--IRB's inquiry must be directed at true intention and actions of claimant in order to conclude claim abandoned--IRB never directed attention to question of whether applicants ready to proceed with claim as evidenced by failure to mark off internal document, endorsement form, which posed that relevant question--IRB failed to properly address legal criteria under which abandonment cases must be considered--Applicants entitled to have abandonment issue determined on proper legal grounds --Application allowed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 168(1)--Refugee Protection Division Rules, SOR/2002-228, r. 58(3).