CITIZENSHIP AND IMMIGRATION
Immigration Practice
On application for judicial review of Refugee Protection Division (RPD) decision declaring applicant’s claim abandoned, Minister bringing motion for consent order setting aside RPD’s decision, returning hearing to differently constituted panel for redetermination—Applicant opposing motion, insisting on hearing of judicial review application— Motion allowed—Applicant failed to attend refugee hearing because of medical emergency, notified lawyer, but RPD not notified prior to start of hearing—RPD indicating applicant’s claim would be sent into abandonment stream—Lawyer unable to attend abandonment hearing due to family emergency; after short hearing, applicant’s claim declared abandoned—In context of public law applications, parties required to provide cogent reasons, other than consent, for setting aside tribunal decision—Minister conceding number of errors in RPD’s decision—Although RPD’s conduct not such as to constitute malice, bad faith or bias, falling well short of standard required of body entrusted with responsibility for making quasi-judicial decisions that may profoundly affect lives of individuals— Minister therefore appropriately consenting to decision being set aside—As to whether appropriate case to direct particular outcome from RPD, Ali v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 73 (T.D.) applied—In view of Immigration and Refugee Protection Act, s. 168(1), Refugee Protection Division Rules, r. 58(3), no objective test against which applicant’s evidence to be measured—During abandonment hearing, RPD required to consider various factors, including evidence, explanations, then reach decision as to whether, in its opinion, applicant in default—Assessment of evidence, information, exercise of some discretion required—Therefore, determination best left to RPD—Not appropriate case to direct particular outcome; no direction will be issued—No special reasons for Court to award costs herein (Federal Court Immigration and Refugee Protection Rules, r. 22)—Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 168(1)—Refugee Protection Division Rules, SOR/2002-228, r. 58(3)—Federal Court Immigration and Refugee Protection Rules, SOR/93-22, rr. 1 (as am. by SOR/2002-232, s. 1), 22 (as am. idem, s. 11).
Johnson v. Canada (Minister of Citizenship and Immigration) (IMM-8446-04, 2005 FC 1262, Dawson J., order dated 14/9/05, 11 pp.)