Kilave v. Canada (Minister of Citizenship and Immigration)

Kilave v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2005-04-27
Neutral citation
2005 FC 564
File numbers
IMM-6893-03
Decision Content
Date: 20050427
Docket: IMM-6893-03
Citation: 2005 FC 564
OTTAWA, Ontario, April 27th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
SELATIA ANULYE KILAVE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated August 13, 2003 in which the Board denied the applicant's motion to re-open her claim for refugee protection. The applicant's claim had previously been declared abandoned because she had failed to submit her personal information form (PIF) on time. The applicant had attended an abandonment hearing before the Board where explanations about her lawyer not filing the PIF were presented to the Board. The Board did not accept these explanations, and declared the refugee claim abandoned.
FACTS
[2] At the outset of the hearing, counsel for the respondent provided the applicant with a decision of Madam Justice Layden-Stevenson released three days before this hearing, Lin v. Minister of Citizenship and Immigration, 2005 FC 512, which thoroughly reviews the applicable jurisprudence that:
1. applications to re-open may only be allowed where a breach of natural justice by the Board can be established at the abandonment hearing which declared the refugee claim abandoned; and
2. arguments that the applicant's counsel was negligent or not diligent is relevant at the abandonment hearing, or on judicial review of the decision from the abandonment hearing, but become irrelevant thereafter. They are not relevant to whether the Board should re-open the claim.
[3] In view of the jurisprudence, counsel for the applicant conceded that the failure of the applicant's original lawyer, Mr. Max Berger, to file the PIF on time, or to obtain an extension, or to attend the abandonment hearing, is not a basis upon which the Court will set aside a Board decision not to re-open a refugee claim. The Court agrees, so this application must be dismissed.
[4] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6893-03
STYLE OF CAUSE: SELATIA ANULYE KILAVE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 20, 2005
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: WEDNESDAY, APRIL 27, 2005
APPEARANCES BY: Ms. A. Emeka Nwoko
For the Applicant
Ms. Marina Stefanovic
For the Respondent
SOLICITORS OF RECORD: A. Emeka Nwoko
Barrister & Solicitor
Toronto, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050427
Docket: IMM-6893-03
BETWEEN:
SELATIA ANULYE KILAVE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER