Date: 20061214
Docket: IMM-1740-06
Citation: 2006
FC 1494
Vancouver, British
Columbia,
December 14, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
IRAJ GHAHREMANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Iraj
Ghahremani seeks judicial review of the decision of the officer who assessed
his application for a Pre-Removal Risk Assessment (PRRA).
[2]
Although
Mr. Ghahremani raised three distinct issues in his written representations, his
counsel made it clear at the hearing that the Court should only focus on one
point. The applicant argues that there was a breach of natural justice
resulting from the incompetence of the two immigration consultants who assisted
him in this process.
[3]
For the
reasons explained below, the Court has concluded that the applicant has failed
to establish his allegation of incompetence and has not provided satisfactory
evidence that there is a reasonable possibility that he suffered a prejudice as
a result of the acts and omissions of which he now complains.
[4]
The
applicant is a 69-year old citizen of Iran,
who has lived in North Vancouver since he came to Canada in April 1999. His claim for refugee
status was rejected in 2000. He was then represented by legal counsel.
[5]
With
respect to the PRRA application, he was assisted by an immigration consultant
who allegedly misrepresented himself as a lawyer.
[6]
Although
in January 2005 the said consultant prepared quite detailed submissions
describing the alleged risks facing the applicant, Mr. Ghahremani now says that
he failed to include two letters which indicate that in 2003 he was suffering
from severe depression and was taking Prozac. In the applicant’s view, these
letters were important to demonstrate the subjective element of his claim
pursuant to s. 96 of the Immigration and Refugee Protection Act S.C.
2001, c. 27 (IRPA). According to him, they would also have helped
explain his lack of concentration during the interview he later attended in
November 2005.
[7]
Finally, according
to Mr. Ghahremani, despite his request, his consultant did not accompany him to
the interview. Instead Mr. Ghahremani went with a friend. He argues that this friend
did not know his file and thus could not provide him appropriate support at the
interview.
[8]
There
is no need to proceed to a functional and pragmatic analysis to determine the
standard of review applicable to this issue. In effect, it is clear that if
there was a breach of natural justice, the Court should intervene to set aside
the decision (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister
of Labour), [2003] 1 S.C.R. 539 at para. 100; GRK Fasteners
v. Leland Industries Inc. 2006 FCA 118 at
para. 6).
[9]
The law is
clear that the incompetence of counsel or of an immigration consultant may, in
some particular cases, be so significant as to constitute a breach of natural
justice. However, courts generally have exercised much caution as it is too
easy to say that one lost because of the fault of one’s counsel or consultant. Thus,
to reach such a conclusion, there must be clear and convincing evidence of
incompetence on the part of the counsel or consultant and there must be a
precise factual foundation to show that prejudice resulted from such
incompetence (Sheikh v. Canada [1990] 3 F.C. 238 (C.A.)).
[10]
This makes
good sense since the Supreme Court of Canada confirmed that a claimant must,
even in the context of criminal cases, establish that the impugned acts and
omissions of counsel are not simply the result of a reasonable professional
judgment, and that a miscarriage of justice resulted therefrom. The Court also
noted that the wisdom of hindsight has no place in this assessment (R. v. G.D.B.,
[2000] 1 S.C.R. 520 at paras. 26-27.)
[11]
This Court
has also shown reluctance to entertain assertions of incompetence without
proper notice of the allegations being given to the former legal counsel and to
the law society to which he belongs, or, in the case of an immigration
consultant, to the consultant and to the Canadian Society of Immigration
Consultants (Shirvan v. Canada (Minister of Citizenship and Immigration),
2005 FC 1509; Bader v. Canada (Minister of Citizenship and Immigration), 2002 FCT 304; Nduwimana
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1387; Nunez
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 555 (QL).
[12]
In this
particular case, there is absolutely no evidence or indication that the
applicant has advised his former immigration consultants of the allegations of
incompetence he raises in this application. There is no indication that he complained
to the Law Society of British Columbia in respect of the fact that his first
consultant was allegedly passing himself off as a lawyer, or that he contacted the
Canadian Society of Immigration Consultants in respect of the matter raised
here.
[13]
Moreover,
the applicant does not explain how the immigration consultant represented
himself as a lawyer to him. The applicant is not illiterate. He worked as a
legal secretary in Iran for several years before
coming to Canada. The letterhead used by his consultant
in his communications with the PRRA officer clearly identified him as an “immigration
consultant”. In any event, given that immigration consultants are duly
authorized to represent clients such as the applicant in respect of PRRA
applications, it is not clear how such a misrepresentation would have prejudiced
the applicant’s case.
[14]
Mr.
Ghahremani states that his immigration consultant had discussed with him his
reasons for not including the two letters in his submissions. In the consultant’s
view, they were not really relevant to the case. Such a decision appears to be
in the nature of professional judgment rather any sort of negligent act or
omission.
[15]
The first
letter is dated January 9, 2003. The author is the doctor who had been treating
the applicant since 1999. He indicates that the applicant suffered from severe
depression and often had occurrences of nightmares. These nightmares “replay
disturbing events from the past including flashbacks of occasions before Mr.
Ghahremani fled from the Iranian border.” Although he says that the applicant
had been taking Prozac for some years, he does not indicate the strength of the
medication or what the effect of it could be on the applicant’s ability to
function properly in an interview or other such context.
[16]
The second
letter is dated January 23, 2003. It is from a psychologist who was first
contacted by the applicant a few weeks before that date. He states that he
believes the applicant is suffering from severe depression and anxiety and
therefore requires more comprehensive psychological counselling and treatment.
This letter refers to current stressful events in the applicant’s life, more
particularly, the health conditions of his Canadian wife and of his father who then
lived in Vancouver. It concludes with a recommendation that appropriate
agencies cover the cost of further counselling sessions.
[17]
In my
view, it was not unreasonable for the immigration consultant to conclude that
the value of this correspondence was limited.
[18]
In his
decision, the PRRA officer concluded, after reviewing the whole file and having
interviewed the applicant, that there was no more than a mere possibility that
Mr. Ghahremani would be at risk if he were to return to Iran. This conclusion was mainly based on the
fact that he had failed to produce credible oral or documentary evidence to
support his claim that he had seen a member of a rogue Iranian intelligence
group leave the house of a murdered Iranian dissident. It was further based on
Mr. Ghahremani’s failure to produce credible evidence that the Iranian
authorities had issued a warrant for his arrest or convicted him in absentia
for spying on the Islamic Republic of Iran. The decision maker also found that
the documentary evidence produced, such as the letters allegedly written by the
applicant’s ex-wife and daughter who still live in Iran, lacked credibility because they were
not dated and lacked details. Moreover, the officer found the behaviour of the
security personnel described by the ex-wife was not believable. The officer further
noted that, in light of the IRB documentation on file indicating that in
absentia judgments are common in Iran
and are required to be published in newspapers, the applicant had failed to
adduce proper evidence that such judgment had been issued against him.
[19]
It is
difficult to see how the two medical letters referred to in paragraphs 13 and
14 above could have had any impact on these findings.
[20]
At the
interview, the applicant advised the immigration officer that he was on
medication which affected his concentration. He also said that he had been
taking it for several years because of his nightmares of “torture and prison.”
[21]
It is
clear from the officer’s notes that he considered this information in his
assessment. Once again, the Court is not satisfied that there is a reasonable
possibility that the letters would have added anything. In fact, the letter of
January 9, 2003, could even have hurt the applicant’s credibility as his doctor
says that he was taking this medication because of what actually “happened” to
him before he left Iran. There is no indication
whatsoever that Mr. Ghahremani was ever tortured or imprisoned.
[22]
With
respect to the fact that the immigration consultant did not accompany the
applicant to his interview, once again there is no indication as to why this
happened. Surely, the immigration consultant must have given some reason for
not accompanying his client. Was it because Mr. Ghahremani did not pay his fee,
or because he had another appointment and the applicant did not want to
postpone the interview? Without a precise factual background, the Court cannot
conclude that there was negligence or incompetence.
[23]
Mr.
Ghahremani did not go to the interview alone. As mentioned in his affidavit, he
was accompanied by a friend. What he does not say in his affidavit is that this
friend was another duly registered immigration consultant. The Court finds it
disturbing that the applicant failed to mention this fact. His counsel had to
acknowledge it at the hearing because the friend’s actual status, including his
consultant registration number, is mentioned in the affidavit of the
immigration officer. The applicant could not have been unaware of this
situation and his affidavit evidence is, in my view, therefore misleading at
least in part.
[24]
That being
said, the Court notes that the applicant now says that this second immigration
consultant did not know his file properly and thus could not help him.
[25]
The Court
has carefully reviewed the questions and answers given by the applicant during
this interview. There is no indication in the evidence before me that the
applicant has any other relevant information that could have been provided in
respect of issues raised by the officer, particularly in respect of the letters
of his ex-wife and daughter
[26]
In view of
the foregoing, the Court finds that the applicant has simply not met his heavy burden
of proof in this case.
[27]
Neither
party submitted any question for certification and the Court is satisfied that
this case turns on its own facts. The application is dismissed.
ORDER
THIS COURT ORDERS that the application is dismissed.
“Johanne
Gauthier”
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