Tuesday, September 25, 2012

Dindo—Application to reopen, change of address

Dindo v. Canada (Citizenship and Immigration), 2012 FC 1040 (CanLII)

Judge: Justice Zinn; Date heard: August 30, 2012; Date decided: August 30, 2012; Counsel for Dindo: Robert I. Blanshay; Counsel for Minister: Christina Dragaitis; Place of Hearing:Toronto, Ontario.

The applicants were a family who had made a refugee claim. They were sent a Notice to Appear for a Scheduling Conference on May 12, 2011. When they did not appear at the conference (nor was the notice returned as mailed to the wrong address), the RPD sent the applicants a Notice to Appear for an Abandonment of a Claim on June 8, 2011. Again, the Notice was not returned but neither did the applicants appear. The RPD declared the claim abandoned, and sent a notice to the effect on July 5, 2011, while was likewise not returned.

The applicants had used a consultant to prepare their PIFs, and the notices had been sent to the address indicated on the PIF, including apartment number 901. However, before the Federal Court, the applicants presented evidence that the PIFs had not been translated back to them.

The applicants retained new counsel on March 28, 2011, but this new counsel did not inform the RPD (in writing) until August 16, 2011, after the decision was made. He asserted to the Federal Court that he had provided oral notice earlier, but Rule 4(4) of the RPD required such notice to be in writing.

Before the RPD, when the applicants applied to the RPD to reopen their claim, they simply asserted that they had not received the notice and that the oral notice of change of counsel was sufficient. Justice Zinn rejected these arguments.

However, before the Federal Court, Counsel for the Minister brought to the Court’s attention that the Notification of Contact Information filed by the applicants themselves, prior to filing the PIF, indicated apartment number 321. This apartment number is corroborated by their complaint to the Canadian Society of Immigration Consultants about their first counsel.

As it would appear that the applicants did not receive their notices due to an error by their first counsel, the refusal was overturned and the RPD was to rehear the Application to Re-Open.

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