Date: 20051125
Docket: IMM-3330-05
Citation: 2005 FC 1599
Ottawa, Ontario, November 25, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
NDUKWE CHRISTOPHER MUOTOH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a pre-removal risk assessment (PRRA) rendered by François Laberge (the officer), dated April 28, 2005, which determined that Ndukwe Christopher Muotoh (the applicant) would not be subject to risk if returned to Nigeria.
FACTS
[2] The applicant is a 43 year old citizen of Nigeria. He arrived in Canada in 1999 and claimed refugee status on the grounds of being persecuted for his membership in the Ijaw Youth Movement (IYM).
[3] On February 6, 2001, the applicant submitted an application for permanent resident status with a visa exemption for humanitarian considerations, sponsored by his new wife, a Canadian citizen. The application was rejected in August 2004, because the Immigration Officer was not convinced that there was a conjugal relationship between the two of them.
[4] On February 7, 2001, the Immigration and Refugee Board (the Board) rejected the applicant's claim, concluding that it had no credible basis.
[5] On November 22, 2004, the Federal Court rejected the applicant's request for a judicial review of the decision to reject the visa exemption application. On November 30, 2004, the applicant was given the opportunity to apply for a PRRA and had until December 30, 2004, to provide his written submissions.
[6] On December 15, 2004, the claimant submitted his completed PRRA form, indicating on the cover sheet that the written submissions and new evidence would be forthcoming. When the PRRA was held three months later, no additional written submissions had been provided.
ISSUES
1. Did the officer breach principles of fundamental justice in failing to evaluate the provision of state protection and for failing to consider the risk to the applicant if returned to Nigeria?
2.Did the lawyer's error in failing to provide submissions infringe the applicant's natural justice right to be heard?
ANALYSIS
1. Did the officer breach principles of fundamental justice in failing to evaluate the provision of state protection and for failing to consider the risk to the applicant if returned to Nigeria?
[7] In Figurado v. Canada(Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458, Justice Martineau outlines the criteria to be used when assessing the standard of review for matters relating to PRRA decisions: He states at paragraph 51:
In my opinion, in applying the pragmatic and functional approach, where the impugned PRRA decision is considered globally and as a whole, the applicable standard of review should be reasonabless simpliciter (Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 at para. 13 (F.C.T.D.) (QL); Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274, [2003] F.C.J. No. 1596 (F.C.) (QL) at para. 24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J. No. 30 (F.C.) (QL) at para. 7). That being said, where a particular finding of fact is made by the PRRA officer, the Court should not substitute its decision to that of the PRRA officer unless it is demonstrated by the applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA officer (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended; Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (F.C.A.) (QL) at para. 14).
[8] Justice Martineau, again in Figurado, supra, comments on the nature and the characterization of the PRRA process by stating at paragraph 52:
It is important to underline the fact that the PRRA process is not an appeal of the Board's decision, but rather is intended to be an assessment based on new facts or evidence which demonstrates that the person at issue is now at risk of persecution, risk of torture, risk to life, or risk of cruel and unusual treatment or punishment. In short, the purpose of the PRRA application is not to re-argue the facts which were originally before the Board or to do indirectly what cannot be done directly.
[9] Such sentiments were confirmed by Justice Mactavish in Hausleitner v. Canada(Minister of Citizenship and Immigration), 2005 FC 641, [2005] F.C.J. No. 786, when she said the following at paragraph 30:
However, in this case, the risk to the applicants has already been thoroughly assessed by the Refugee Protection Division of the Immigration and Refugee Board. In my view, it is simply not reasonable, nor would it be consistent with the scheme of the Act as a whole, to require the PRRA officer to start over, from the beginning, with an entirely new risk assessment, given that there has already been a final determination that [...]
Rather, it seems to me that the question for the PRRA officer at this stage in the process should be whether the new evidence supplied by the applicants demonstrates a significant enough change to the conditions within the applicants' home country such that the state protection analysis conducted by the Immigration and Refugee Board is no longer valid.
[10] In the present matter, the officer noted that the applicant did not raise any issues or evidence that had not already been considered by the Board:
As indicated earlier, the claimant did not submit any new evidence that could induce me to review the conclusions of the RPD panel.
[11] However, the officer did assess whether the general country conditions had significantly changed since the Board rejected the claim just to make sure that the applicant would not be put at risk if returned to Nigeria. The officer concluded that:
[...]most of Nigeria's inhabitants live in poverty and some of the country's regions are in stages of armed conflict between rival bands or various ethnic groups. However, these findings are not sufficient to demonstrate that the applicant would be personally at risk, due to his profile, should he return.
(Pre-removal risk assessment, dated April 28, 2005, at page 6)
[12] As there was no supplementary evidence provided to the officer in accordance with section 113 of the Act and considering that an assessment of the country conditions illustrated that the applicant would not be at risk if returned, it was not unreasonable for the officer to reach the same conclusion as the Board; that the applicant is neither a refugee nor a person in need of protection pursuant to the Act. Despite this situation, the applicant contends that the officer failed in his obligation to evaluate if state protection would be provided to the applicant should he need it. In so doing, the applicant claims that the officer's decision is a breach of the principles of natural justice warranting the intervention of this Court.
[13] In its finding that the applicant is not a refugee, nor a person in need of protection, the Board determined that the applicant is not at risk. Further, as previously mentioned, the applicant did not bring new evidence to prove that he would be at risk. Without this new evidence it is unnecessary to determine if state protection would be available. The applicant does not need state protection if he is not at risk. As such, the failure of the officer to evaluate the possibility of state protection does not breach the principles of natural justice.
[14] The applicant claims that the officer failed in his obligation to take into account the specific circumstances of the applicant and the risk he faces being returned to Nigeria as a member of the IYM. Such a failure is a breach of natural justice warranting the intervention of this Court.
[15] As previously mentioned, the PRRA process is to assess new risk developments between the time of the Board's hearing and the anticipated removal date of the applicant from Canada. The Board determined that the applicant's claim of being a member of the IYM was not credible (see pages 3 and 4 of the Board's decision dated February 7, 2001). Further, no new evidence was submitted for the PRRA to refute the Board's finding. As such, the officer was under no obligation to take into account the specific circumstances of the applicant and the risk he faces being returned to Nigeria as a member of the IYM.
2. Did the lawyer's error in failing to provide submissions infringe the applicant's natural justice right to be heard?
[16] The applicant submits that because of his lawyer's error in not providing additional proof or submissions for the PRRA application his natural justice right to be heard, audi alteram partem, was infringed. Further, he suggests that such an infringement warrants the intervention of this Court.
[17] In Moreau-Bérubév. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, the Supreme Court of Canada confirmed at paragraph 35, that the right to be heard is part of an obligation to act fairly, however, the duty of an administrative body to adhere to that right is to be decided on a case by case analysis:
The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to all administrative bodies acting under statutory authority (see [1979] 1 S.C.R. 311">Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653; Baker, supra, at para. 20; Therrien, supra, at para. 81). Within those rules exists the duty to act fairly, which includes affording to the parties the right to be heard, or the audi alteram partem rule. The nature and extent of this duty, in turn, "is eminently variable and its content is to be decided in the specific context of each case" (as per L'Heureux-Dubé J. in Baker, supra, at para. 21)
[18] The applicant puts the blame for failing to submit new evidence and as such, failing to be heard, squarely on his lawyer's inaction in not properly filing submissions for the PRRA. The presumption that a person accepts the consequences of his choice of counsel cannot be overcome merely by demonstrating counsel was incompetent. It must be demonstrated that as a result of counsel's incompetent acts an applicant sustained a substantial prejudice and that such a prejudice would not have occurred had counsel acted accordingly (Robles v. Canada [2003] F.C.J. No. 520, Olia v. Canada (Minister of Citizenship and Immigration), 2005 FC 315, [2005] F.C.J. No. 417).
[19] In Lahocsinszky v. Canada (Minister of Citizenship and Immigration),2004 FC 275, [2004] F.C.J. No. 313, Justice Mactavish comments on how errors on the part of counsel can be grounds for setting a decision aside. She states at paragraph 15:
Incompetence on the part of counsel can certainly be a basis for having a decision set aside. However, the onus is on the applicants to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
[20] The respondent submits that the applicant has not met the onus of establishing that there would be an actual prejudice, but for counsel's unprofessional errors. The respondent justifies this assertion by emphasising that in the applicant's lawyer's affidavit no indication as to the nature of what he wanted to file, as submissions at a later date, was provided. Further, the respondent claims that even if such information had been provided, there exists no reasonable probability that it would have made a difference on the outcome of the PRRA.
[21] The applicant submits in his affidavit that he would be at risk of being harassed, insulted and attacked, if he were to return to Nigeria, because of his membership in the IYM (Tribunal record, page 15, paragraph 9). The PRRA process, as previously mentioned, is not an appeal of the Board's decision, but rather is intended to be an assessment based on new facts or evidence which demonstrates that the person at issue is now at risk. The Board was unconvinced that the applicant was a member of the IYM. Nowhere in the applicant's submissions for this judicial review was it mentioned that the applicant had any new evidence that would prove he was in fact a member of the IYM. Without any new evidence illustrating that the applicant was in fact a member of that organization, I do not see how the applicant could illustrate being at risk if returned to Nigeria.
[22] I find that it was not enough for the applicant merely to say that his right to be heard was infringed simply because his counsel failed to make the proper submissions. The applicant had the onus of proving that an error occurred and that the chances of that error causing a significant prejudice were probable. The applicant succeeded in illustrating his former counsel's incompetence, but he failed to demonstrate the likelihood of that incompetence causing significant prejudice.
[23] I find the officer's decision was not made in a perverse and capricious manner and without regard for the material before him. The officer's PRRA decision was reasonable and did not breach principles of natural justice or procedural fairness.
ORDER
THIS COURT ORDERS that:
- The application for judicial review be dismissed;
- No question for certification.
"Pierre Blais"
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