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Stubbornly sticking to procedure can endanger lives - Metro US

Stubbornly sticking to procedure can endanger lives

Does the Immigration and Refugee Board (IRB) really believe that its refugee protection role is about saving lives?

If so, why did it refuse to reopen the refugee claim of Jean Claude Kabende Emani after he had found out that his refugee claim had been declared “abandoned” by the board?

Emani applied for refugee protection two days after his arrival here from Cameroon in September 2007. After his lawyer submitted the details of Emani’s claim to the IRB in a Personal Information Form (PIF), Emani waited for his refugee hearing to be scheduled.

When he moved, he sent his lawyer an e-mail containing his new address so his lawyer could notify the board.

He also informed Citizenship and Immigration Canada (CIC) about his change of address when he applied for a work permit in December of 2007.

He continued to wait until September of 2008, when he received a letter saying that there was an enforceable removal order against him.

His lawyer immediately investigated, discovering that the IRB had declared his client’s refugee claim abandoned after it had tried unsuccessfully to notify his client of the hearing date.

It turns out that the board was unable to reach the lawyer or his client since the lawyer failed to list himself as counsel in the PIF. Emani’s lawyer also failed to advise the Board of his client’s new address, since Emani’s e-mail had been intercepted by a spam filter.

Counsel tried to have the refugee hearing reopened, but the Board denied the request. It held that the claimant was responsible his actions, as well as those of his counsel. The board did not consider it a denial of natural justice to deny Emani an opportunity to explain his fear of persecution in Cameroon.

Emani appealed to the Federal Court, which recently found that the board failed to consider that the central consideration in such cases is whether the refugee claimant’s conduct disclosed an intention to diligently advance his claim. However, the court reminded the parties that generally “a party must suffer the consequences of his or her counsel.”

Although the board acknowledges on its website that “all IRB decisions have an impact on the lives and security of the individuals” appearing before it, on occasion it nonetheless prefers to expose claimants to the risk of persecution than to excuse a procedural breach.

In this case, the IRB may have been right to declare the claim abandoned when it couldn’t reach the claimant. However, it violated clear legal principles when it refused to reopen the claim once Emani had been located wielding a reasonable explanation.

In this case, had the board checked with CIC, its sister agency, it would have easily found Emani’s current address.

Most are not aware that a single immigration case can often involve the IRB, CIC, CBSA and a visa post overseas who all maintain separate records. When a change of address occurs, each agency must be notified separately, preferably in writing or online. It is imperative that written confirmation of the receipt of the notice be retained. Lawyers and consultants sometimes leave this task to secretaries and assistants who may easily overlook one or more of these notices.

Arrest, detention, deportation, denial of protection, loss of status, and the refusal of a permanent residence application can often be the consequence of a failure to give proper notice of a change of address.

The IRB often likes to take credit for how many cases it has “finalized” in a particular year. This approach, however, is not the way to reach those numbers.

Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at metro@migrationlaw.com.

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