CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Arndorfer v. Canada (Minister of Citizenship and Immigration)
IMM-3861-00
2002 FCT 2007, Beaudry J.
26/11/02
21 pp.
Judicial review of Immigration and Refugee Board (IRB) decision applicants withdrew Convention refugee claims-- Applicants retained Peter Ivanyi as counsel--Applicants met with Ivanyi on June 26, 2000, to prepare for hearing--Ivanyi asked applicants to sign form--Applicants have difficulty reading English--Ivanyi informed applicants documents signed simply formality--Documents consisting of Notice of Withdrawal of Convention Refugee Claim--Applicants contended circumstances related to submission of Notice of Withdrawal giving rise to a non est factum finding--Supreme Court of Canada held in Marvco Color Research Ltd. v. Harris et al., [1982] 2 S.C.R. 774 that anyone careless in signing document precluded from invoking non est factum against those relying on document in good faith--Non est factum described as state of mind not following hand at time of execution of documents--Carelessness precluding party from claiming mind did not follow hand--In present case, allowing non est factum would essentially have effect of shifting to innocent third party harm or loss--IRB and respondent must be able to rely on documents communicated by claimants--If IRB and respondent had to impose waiting period before acting on Notice of Withdrawal, or impose extra steps to ensure statement of claimant indeed final answer, refugee claims process would be encumbered and would worsen already critical backlog in refugee claims system-- Affidavit evidence indicating adult applicants aware of consequences of executing Notification of Withdrawal forms--Applicants failed to establish entitlement to plead non est factum--CRDD committed no factual error in notifying respondent of withdrawal--Regarding allegation of violation of procedural fairness, 1993 CRDD Rules, r. 33 not violating rights of applicants to procedural fairness--Applicants chose to bring premature end to proceedings in exercising right to withdraw claims--In case of withdrawal, applicant making own decision and exercising right to put end to claim--No violation of procedural fairness--Regarding if refugee claim of minor applicant withdrawn, child's claim intended to be withdrawn--Child's claim signed by step-father and natural mother--Adult applicants only ones acting on behalf of child--Court therefore concluded IRB did not commit reviewable error--Application for judicial review dismissed-- Convention Refugee Determination Division Rules, SOR/93-45, r. 33.