CITIZENSHIP AND IMMIGRATION
Immigration Practice
Judicial review of Refugee Protection Division (RPD) decision denying reopening of Convention refugee claim declared abandoned—Applicant, Peruvian citizen, arrived October 25, 2003 at age 19, immediately indicated intention to make refugee claim—Under detention, wrote in native language explanation supporting claim—Notified of duty to provide RPD Canadian address, personal information form (PIF) within limited time—Deadline passed without information being furnished—Refugee claim declared abandoned November 27, 2003 with no notice to applicant— Gave RPD address December 24, 2003; on January 8, 2004 presented PIF for filing and it was accepted—Later that month, applicant retained lawyer, who advised RPD that retained—RPD never informed applicant, directly or through counsel, claim declared abandoned—Minister only advised applicant claim abandoned when sought work permit—Under Refugee Protection Division Rules, s. 58(1), claim can be declared abandoned without affording claimant opportunity to explain why claim should not be declared abandoned for failure to supply PIF, contact information within 28 days after claimant received form and if Minister, claimant’s counsel, if any, do not have contact information—RPD could not have notified applicant of abandonment decision (requirement of Rules, s. 61(1)) on date decision made as had no address for him, but notice requirement never met herein—Decision not to reopen based on absence of denial of natural justice— Under Rules, s. 55(4), RPD must allow reopening if failure to observe natural justice principle established—Reviewable error committed by RPD—Fact RPD unable to comply with Rules, s. 61(1) on date abandonment decision made not fully relieving it of obligation under Rule—Such decisions can have fatal implications for one in applicant’s situation—Given age, other circumstances, Court prepared to assume applicant vulnerable, disoriented yet managed to advise of address within month of impugned decision—In effect, RPD denied applicant, in his special circumstances, opportunity to try to convince RPD claim should not have been declared abandoned or, alternatively, denied opportunity to seek judicial review of decision—Right to notice of decision substantially affecting rights at heart of right to be heard—On particular facts of this matter, RPD failed to fulfill Rules, s. 55(4) obligation due to natural justice breach—Failure to give notice might not constitute natural justice breach in fact situation less sympathetic than that at bar—Refugee Protection Division Rules, SOR/2002‑228, rr. 55, 58, 61.
Gutierrez v. Canada (Minister of Citizenship and Immigration) (IMM‑5302‑04, 2005 FC 841, Gibson J., order dated 15/6/05, 9 pp.)