Date: 20061127
Docket: IMM-964-06
Citation: 2006 FC 1432
BETWEEN:
SHANDA
FONTENELLE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 22nd of November, 2006, at
Toronto, of an application for judicial review of a decision of the Refugee
Protection Division (the “RPD”) of the Immigration and Refugee Board wherein
the RPD found the Applicant not to be a Convention refugee or a person in need
of like protection in Canada. The decision under review is dated the
31st of January, 2006.
BACKGROUND
[2]
The
Applicant is a female citizen of Saint Lucia. She attested to an
extensive experience of domestic abuse at the hands of her former partner and
at the hands of others after she separated from her partner. She sought police
protection and, in fact, in 1999, her partner was charged, convicted and
sentenced in the alternative to a fine or imprisonment. The Applicant was
awarded monetary damages for the assault perpetrated against her.
[3]
On
two occasions in 2002, the Applicant left Saint Lucia and
sojourned in Martinique. On each occasion she returned to Saint Lucia.
[4]
In
February of 2003, the Applicant once again left Saint Lucia, on this
occasion, for a holiday in Canada. She found employment here in Canada and decided
to stay. She did not file a claim for Convention refugee protection or like
protection until August of 2005. She provided little documentary
corroboration to support her claim.
THE DECISION UNDER
REVIEW
[5]
On
the basis of an analysis of the documentary evidence on state protection for
abused women in Saint Lucia, together with the evidence regarding the
Applicant’s re-availment on two occasions, of her delay in fleeing Saint Lucia to Canada
and of her delay in seeking protection in Canada, the RPD
dismissed the Applicant’s claim.
[6]
In
the introduction to its reasons for decision, the RPD wrote:
As the claimant was not
represented by counsel, the panel ensured that the following procedural
safeguards were in place. She was given ample time before the commencement of
the hearing to confer with a Refugee Protection Officer …, who explained to her
the procedures at the hearing and what onus she had to meet. The Convention
grounds and the meaning of the consolidated grounds were explained to her. She
was given an opportunity to review her Personal Information Form…and to make
the panel aware of any amendments before swearing to the accuracy of the PIF.
She indicated that she was confident in proceeding without the help of counsel
and affirmed that she understood the explanations and instructions provided by
the RPO.
[7]
The
substance of the quoted paragraph is highly inaccurate. The Applicant appeared
for her hearing with counsel. Counsel requested a postponement. That request
was denied. In the face of the denial, counsel nonetheless concluded that he
would represent the Applicant at the hearing. Following questioning of the
Applicant by the Refugee Protection Officer and the presiding member, counsel questioned
the Applicant at some length. Finally, counsel presented submissions.
THE ISSUES
[8]
Counsel
for the Applicant urged that the RPD breached principles of fairness and
natural justice in that, on the basis of the earlier quoted paragraph from the
reasons for decision, it should be assumed that the presiding member ignored
questions posed to the Applicant by counsel at the hearing, as well as the
Applicant’s answers to those questions, and further ignored counsel’s
submissions at hearing.
[9]
Counsel
for the Respondent acknowledged that the quoted paragraph represents a glaring
error in the reasons, and justifies a determination of a breach of natural
justice or procedural fairness, but nonetheless urged that a careful reading of
the reasons for decision and the transcript, including counsel’s questioning of
the Applicant and her responses, as well as counsel’s submissions, demonstrates
that the RPD fully understood the totality of the evidence before it and
properly applied the principles of law applicable to the Applicant’s claim. In
the result, counsel urged, notwithstanding any finding of breach of natural
justice or procedural fairness, it would be futile to set aside the decision
under review and refer the Applicant’s claim back for rehearing and re-determination
as the result would inevitably be a further determination against the Applicant.
ANALYSIS
Standard of Review
[10]
A
pragmatic and functional analysis is not required where the issue before the
Court is denial of natural justice or breach of fairness. Rather, if the
appropriate degree of procedural fairness or natural justice has been accorded,
no deference is owed and the decision must be set aside.
Denial of Natural
Justice or Breach of Fairness
[11]
The
inclusion of the paragraph quoted earlier in these reasons, from the reasons
for decision of the RPD, is unconscionable. I am prepared to imply from its
inclusion that a breach of natural justice or procedural fairness here occurred
and that the presiding member ignored the questions posed to the Applicant by
her counsel, her responses to those questions, and counsel’s submissions.
[12]
In Sarfraz
Hussain et al v. Canada (Minister of
Citizenship and Immigration), my colleague Justice MacTavish wrote at paragraphs 20 and 25 of her reasons:
The inadvertent failure
of a Board to consider submissions made on behalf of a party can result in the
denial of procedural fairness sufficient to warrant the Board’s decision being
set aside:…
…
The failure of the Board
to consider the submissions of one party, albeit inadvertently, is a breach of
procedural fairness. In all of the circumstances, I cannot say with any degree
of certainty that the applicants’ final submissions would not have had any
effect on the outcome of the case. As a consequence, the decision of the Board
should be set aside, and the matter remitted to a differently constituted
panel for
reconsideration on the basis of a complete record.
[citation
omitted]
[13]
I
adopt the quoted paragraphs as my own.
Futility of Quashing the
Decision under Review and referring the Applicant’s claim back for rehearing
and re-determination
[14]
In
Lahocsinszky v. Canada (Minister of
Citizenship and Immigration), once again, my
colleague Justice MacTavish, wrote at paragraph 13 of her reasons:
Not every breach of
natural justice will, however, result in a decision being set aside. A
reviewing court will not set aside a decision where the Court is satisfied that
the breach could not have affected the result: Mobil Oil Canada Ltd. v.
Canada–Newfoundland Offshore Petroleum Board…cited in Yassine v. Canada (Minister of
Employment and Immigration)…
[citations
omitted]
[15]
I
have thoroughly reviewed the reasons for decision of the RPD, read without the
offending paragraph, the transcript of the hearing before the RPD including
counsel’s questions to the Applicant and the Applicant’s responses thereto, and
counsel’s submissions, and the documentary evidence relating to country
conditions in Saint
Lucia
that was before the RPD. Based on that review, I am satisfied that the breach
of natural justice or procedural fairness that here occurred could not have
affected the result. Not only was the result arrived at by the RPD reasonably
open to it, it was inevitable. Based upon the Applicant’s own conduct and
experience in particular, and, more generally, the documentary evidence
regarding state protection available to victims of spousal or other equivalent
abuse in Saint Lucia, I am satisfied that the Applicant’s claim to Convention
refugee protection or like protection could not possibly succeed.
CONCLUSION
[16]
For
the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A
QUESTION
[17]
At
the close of the hearing before the Court, counsel were advised that this
application for judicial review would be dismissed. They were consulted
regarding certification of a question. Neither counsel recommended
certification. The Court itself is satisfied that no serious question of
general importance arises on this matter that would be dispositive of an appeal
from my decision herein. No question will be certified.
“Frederick
E. Gibson”
Ottawa,
Ontario.
November
27, 2006
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