Huseen et al. v. Canada (Minister of Citizenship and Immigration), 2015 FC 845

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Diner, J.
• Citation: 2015 FC 845,[2015] F.T.R. TBEd. AU.037
• Date: 19 May 2016
• Subject Matter: IMMIGRATION AND REFUGEE

Huseen v. Can. (M.C.I.), [2015] F.T.R. TBEd. AU.037

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. AU.037

Swha Huseen, Batol Mohammad, Hamza Mohammad and Huzaifa Mohammad (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1704-14; 2015 FC 845)

Indexed As: Huseen et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Diner, J.

July 9, 2015.

Summary:

The applicants' refugee claim was declared abandoned after the applicants failed to submit certain forms and appear at an abandonment hearing. The Refugee Protection Division (RPD) denied the applicants' application to reopen their refugee claim. The applicants applied for judicial review of the RPD's decision.

The Federal Court allowed the application. The matter was referred back to the RPD for reconsideration by a differently constituted panel.

Aliens - Topic 1326.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Reasons - [See Aliens - Topic 1329.2 ].

Aliens - Topic 1327.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Abandonment of refugee claim - [See Aliens - Topic 1329.2 ].

Aliens - Topic 1329

Admission - Refugee protection, Convention refugees and persons in need of protection - Right to a hearing - [See Aliens - Topic 1329.2 ].

Aliens - Topic 1329.2

Admission - Refugee Protection - Convention refugees and persons in need of protection - Hearing - Reopening of - The applicants' refugee claim was declared abandoned after the applicants failed to submit certain forms and appear at an abandonment hearing - The Refugee Protection Division (RPD) applied the legal maxim "ignorance of the law is no defence" in denying the applicants' request to reopen their refugee claim - The applicants applied for judicial review of the RPD's decision - The Federal Court allowed the application - Rule 62(6) of the Refugee Protection Division Rules permitted the RPD to reopen a claim where there had been a denial of natural justice or procedural unfairness - Rule 62(7) set out factors that the RPD had to consider - While the timeliness of submitting a claim was a factor to be considered, it was not the only one - The RDP's sole focus on the missed deadlines inhibited analysis of the second portion of rule 62(7)(a): the justification for any delay - The RPD concluded that no violation of natural justice occurred in this case - Absent from that conclusion and reasons was any rationale that took into account the applicants' personal circumstances surrounding the missed deadline - Simply relying on the principle "ignorance of the law is no excuse" constituted unreasonable reasons, because there was no consideration of the other significant factors in play in this case - The court had held on numerous occasions that refugee applications might be allowed to proceed, despite procedural defects, to ensure that the requirements of natural justice were fulfilled - Natural justice encompassed the overarching right to be heard and that should not be denied unreasonably.

Cases Noticed:

Martinez Garduno et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 854; 2009 FC 1306, refd to. [para 12].

Emani v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 328; 2009 FC 520, refd to. [para. 12].

Gurgus v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 3; 2014 FC 9, refd to. [para. 13].

Yan v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 840; 2010 FC 1270, refd to. [para. 13].

Febles v. Canada (Minister of Citizenship and Immigration), [2014] 3 S.C.R. 431; 464 N.R. 7; 2014 SCC 68, refd to. [para. 16].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (2004), 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 22].

Cervenakova v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 358; 2012 FC 525, refd to. [para. 30].

Andreoli et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 611; 2004 FC 1111, refd to. [para. 31].

Matondo v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 260; 2005 FC 416, refd to. [para. 31].

Albarracin v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 800; 2008 FC 1143 , refd to. [para. 31].

Mendoza Garcia v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 560; 2011 FC 924, refd to. [para. 33].

Minister of National Revenue v. Garber et al. (2008), 375 N.R. 94; 2008 FCA 53, refd to. [para. 36].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Refugee Protection Division Rules, SOR/2012-256, rule 62(6) [para. 14]; rule 62(7) [para. 21].

Refugee Protection Division Rules - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Bjorn Harsanyi and Raj Sharma, for the applicants;

Galina Bining, for the respondent.

Solicitors of Record:

Stewart Sharma Harsanyi, Calgary, Alberta, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Edmonton, Alberta, for the respondent.

This application was heard on May 19, 2016, at Calgary, Alberta, before Diner, J., of the Federal Court, who delivered the following decision on July 9, 2015.