CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Osagie v. Canada (Minister of Citizenship and Immigration)
IMM-6640-03
2004 FC 1368, Mactavish J.
6/10/04
10 pp.
Judicial review of Immigration and Refugee Board's refusal to reopen applicant's refugee claim--Applicant citizen of Nigeria, arrived in Canada on March 15, 2003--Received Personal Information Form (PIF) from Board on April 2-- Deadline for filing completed form April 30, 2003--Through inadvertence on part of lawyer's employee, applicant's PIF not filed with Board until May 2, 2003--Claim declared abandoned--Board denied applicant's request to reopen claim--Refugee Protection Division must allow motion to reopen claim for refugee protection terminated following abandonment hearing if failure to observe principle of natural justice: Refugee Protection Division Rules, r. 55(4)--Counsel for applicant submitting Board failed to provide applicant with sufficient notice with respect to scheduling of abandonment hearing, thus committing breach of natural justice--Board entitled to weigh evidence before it--No basis for interfering with Board's decision notice received in sufficient time-- Board entitled to weigh explanation provided for failure to appear for abandonment hearing--No basis to interfere with Board's finding alternate arrangements could have been made --But negligent, incompetent actions of solicitor may result in party being denied fair hearing--Negligence on part of counsel may result in breach of natural justice sufficient to require reopening of abandoned refugee claim--Applicant provided direct evidence as to state of awareness regarding progress of refugee claim--Evidence before Board clear: applicant never made aware date set for abandonment hearing in relation to refugee claim, thus had no opportunity to appear, be heard--Applicant always had ongoing intention to pursue refugee claim--Effect of various errors committed by counsel, employees to deny applicant natural justice in relation to abandonment hearing--Request to reopen claim should have been granted--Application allowed--Refugee Protection Division Rules, SOR/2002-228, r. 55(4).