Anwar v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Mosley, J.
• Citation: 2004 FC 1202,(2004), 260 F.T.R. 261 (FC)
• Date: 31 August 2004
• Subject Matter: IMMIGRATION AND REFUGEE,PRACTICE,ADMINISTRATIVE LAW

Anwar v. Can. (M.C.I.) (2004), 260 F.T.R. 261 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. SE.002

Ashar Anwar (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-7574-03; 2004 FC 1202)

Indexed As: Anwar v. Canada (Minister of Citizenship and Immigration)

Federal Court

Mosley, J.

September 1, 2004.

Summary:

The Immigration and Refugee Board, Refugee Protection Division, declared that the applicant's refugee claim was abandoned. The applicant applied for judicial review.

The Federal Court allowed the application and remitted the matter to a differently constituted Board for redetermination.

Administrative Law - Topic 2451

Natural justice - Procedure - Notice - Effect of lack of notice - [See Aliens - Topic 1327.1 ].

Aliens - Topic 1327.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Abandonment of refugee claim - The applicant made a refugee claim on April 24, 2003 - On the same day, he was given his Personal Information Form (PIF) to fill out - His PIF was due on May 22, 2003, 28 days after he was provided the form - The Immigration and Refugee Board, Refugee Protection Division, received the PIF on May 27, 2003 - By mail, notice was sent to the applicant's and counsel's known addresses, informing them that the applicant was to appear at an abandonment hearing to explain why he did not submit his PIF on time - Neither the applicant nor his counsel appeared at the hearing - The Board declared that the applicant's refugee claim was abandoned - The applicant applied for judicial review, arguing that he had not received notice of the hearing and that the Board had breached the principles of procedural fairness - The Federal Court allowed the application - While a document provided by regular mail was considered to have been received seven days after it was mailed and delivery by mail would normally suffice, there was no evidence that the notice of hearing was actually received by either the applicant or his counsel.

Aliens - Topic 1329.3

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a fair hearing - [See Aliens - Topic 1327.1 ].

Practice - Topic 2508

Service - Personal service of writ, claim or notice - Manner of service - [See Aliens - Topic 1327.1 ].

Cases Noticed:

Mussa v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 2047 (T.D.), refd to. [para. 12].

Reading & Bates Construction Co. v. Baker Energy Resources Co., Baker Marine Co. and Gaz Inter-Cité Québec Inc. (1986), 7 F.T.R. 117 (T.D.), refd to. [para. 15].

Counsel:

Robert Blanshay, for the applicant;

Stephen Jarvis, for the respondent.

Solicitors of Record:

Robert Blanshay, Toronto, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on August 31, 2004, at Toronto, Ontario, before Mosley, J., of the Federal Court, who delivered the following decision on September 1, 2004.