Tabaj v. Canada (Minister of Citizenship and Immigration), 2004 FC 90

Date: 20040122

Docket: IMM-463-03

Citation: 2004 FC 90

BETWEEN:

                                                                     MARIA TABAJ,

                                                                                                                                                      Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                 Was Maria Tabaj's designated representative unsuitable and should she have been replaced? Those are the questions to be determined on this application for judicial review. I have concluded that both questions should be answered in the negative.

[2]                 Maria is not yet five years old. She was born in Albania on August 17, 1999, and on January 1, 2001, at the age of 16 ½ months, arrived in Canada and claimed a fear of persecution on the basis of her membership in a particular social group - a family member of democratic party (DP) supporters. Her claim was based on her father's narrative. In its decision dated December 18, 2002, the Refugee Protection Division (RPD) of the Immigration Refugee Board determined that she is not a Convention refugee. The claim was heard and determined under the former Immigration Act, R.S.C. 1985, c. I-2 (the Act).

[3]                 Maria's parents, Arjan and Anilda Tabaj, had previously made a refugee claim in Canada in November, 1998. They abandoned their claims without notification to Citizenship and Immigration Canada (CIC) and reavailed themselves to Albania in May, 1999. They returned to Canada with Maria in January, 2001.

[4]                 The infant applicant alleges that her family came to Canada because the threats and attacks against her father, Arjan, had left him disabled. Arjan was allegedly a supporter and member of the democratic party of Albania and was pursued by Socialist government agents. The basis of Maria's claim is set out in her father's personal information form (PIF) upon which she relies entirely.

[5]                 The RPD held a hearing to designate a representative for Maria, as required by subsection 65(3) of the Act. Maria's mother, Anilda, and counsel appeared at the hearing. The board appointed Anilda Tabaj as Maria's designated representative.

[6]                 At the hearing, the issues were identity, credibility of Maria's claim, the reavailment to Albania and state protection. Maria was not present for most of the hearing. Anilda was the principal witness on her behalf. Arjan also gave evidence.

[7]                 The RPD found that there was no nexus between the harm feared and a Convention ground. It also concluded that the only credible evidence was that there is a high crime rate in Albania and that Arjan had suffered a physical injury in Albania resulting in the loss of his leg. The board did not believe Arjan's story - upon which Maria's claim was based. It found that Maria's parents were not credible witnesses in general and, in particular, that they were not credible with respect to Arjan's association with the DP. It concluded that Arjan was not being persecuted in Albania because of his political connection or belief, with the result that Maria's claim, based on her father's political opinion, was not established.

[8]                 The board noted that Maria's parents were unable to provide any documentation to substantiate the allegations that Arjan was a member of the DP and that he had been hospitalized for approximately eight months. Anilda was unable to recall what the family had done with its documentation and said that her husband was responsible for obtaining and taking care of the documents. The board also noted that Maria's parents had already been involved with the refugee system in Canada and knew they would need documentation for their claim. Additionally, the RPD found it implausible that Arjan would so readily believe it was safe to return to Albania and then resume his political activities immediately upon his return.

[9]                 The written submissions alleged various errors on the part of the RPD regarding the credibility findings. At the hearing, counsel withdrew those arguments and advised that the only issue was that of the designated representative and her impact on the minor applicant's claim.

[10]            Maria's counsel, who was not the counsel representing her at the refugee hearing, relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, wherein the court stated that the principles of the Convention on the Rights of the Child and other international instruments place special importance on protections for children with particular consideration of their needs and rights.

[11]            As I understand the argument, the submission is that Maria's best interests were compromised, not when the RPD appointed Anilda as her designated representative, but when it failed to recognize during the hearing that she was unsuitable and ought to be replaced.

[12]            In support of this position, counsel refers to the guideline issued under subsection 65(3) of the Act entitled "Child Refugee Claimants Procedural and Evidential Issues". The aim of the board's guideline, it is argued, is to specifically address how the board should operate when dealing with minor claimants. Specific reference is made to the mandatory criteria to apply when designating a representative:

-          the person must be over 18 years of age;

-          the person must have an appreciation of the nature of the proceedings;

-          the person must not be in a conflict of interest situation with the child claimant

such that the person must not act at the expense of the child's best interests;

-          the person must be willing and able to fulfill the duties of a representative and to act in the "best interests of the child"

and to the duties of the designated representative:

-          to retain counsel;

-          to instruct counsel or to assist the child in instructing counsel;

-          to make other decisions with respect to the proceedings or to help the child make those decisions;

-          to assist in obtaining evidence in support of the claim;

-          to provide evidence and be a witness in the claim;

-          to act in the best interests of the child. (emphasis is that of counsel)

[13]            Counsel submits that it should have been apparent to the RPD that Anilda was not fulfilling the role of designated representative as she should have been. Since Arjan's health prevented him from taking on the role, an independent third party ought to have been appointed.

[14]            Referring to the comment of the presiding member set out below, counsel alleges that a less than satisfactory process was adopted:

PRESIDING MEMBER:                                                                                            Okay. And to be the designated representative you have to bring forward all the evidence for the kid. You are supposed to instruct counsel on her behalf and those are the duties, okay?

[15]            Counsel does not suggest that in and of itself this is sufficient to nullify the hearing, but contends that it is "part of the cumulative factors that show the proceedings were not satisfactory with respect to the issues of the designated representative".

[16]            The counsel at the refugee hearing specifically referred to the state of Arjan's health:

COUNSEL:                                                                                                                            It is not my intention to call the father because of his psychological condition. I noticed in the office, he's not trying to help, he just tends to mumble. Should that occur during this hearing I would ask that he be removed so that he doesn't taint the credibility of the wife.

[17]            Present counsel emphasizes the significance of that statement in relation to Anilda's statements later in the hearing. When responding to questions regarding why she didn't obtain various documents, she said that she was depending on her husband. Counsel refers to the following exchange as illustrative of her inadequacy as a designated representative:

PRESIDING MEMBER:                                                                                                        Did your child have a birth certificate when you arrived in Canada?

DES. REP.:                                                                                                                               No, we - - -

MS. WOLMAN:                                                                                                                      Do you have her - - -

DES. REP.:                                                                                                                                - - - didn't have any documents.

MS. WOLMAN:                                                                                                                     - - - birth certificate now? Do you have her birth certificate now?

DES. REP.:                                                                                                                               No.

PRESIDING MEMBER:                                                                                                         You didn't ask her birth certificate from Albania to be sent here?

DES. REP.:                                                                                                                               Nobody told us if we needed or not. We thought it was enough to have mine and my husband's certificates and the family certificate.

RCO:                                                                                                                                          It's on the screening form. It was requested ...

[18]            It is submitted that, although the issue of the birth certificate was resolved, this ought to have been a red flag for the board regarding the propriety of Anilda as the designated representative. In response to questions regarding various documents, Anilda testified:

PRESIDING MEMBER:                                                                                                       For instance his Democratic Party membership card?

DES. REP.:                                                                                                                               I don't know. That's how many he was able to get. Because my husband was the one dealing with the documents.

COUNSEL:                                                                                                                               Did you ask your husband if he had gotten or was getting documents?

DES. REP.:                                                                                                                               Yes, I did ask him and we have a tradition. Like, the husband takes care of this and he told me, don't worry, I will take care of it.

COUNSEL:                                                                                                                               And when he didn't provide these documents or he didn't come up with them did you ask him again?

DES. REP.:                                                                                                                               No. He told me, I know everything ...

PRESIDING MEMBER:                                                                                                        Does he have any hospital or medical records showing what happened to him in Albania?

DES. REP.:                                                                                                                               From the hospital, no.

PRESIDING MEMBER:                                                                                                        Why didn't you ask for them? Why didn't the husband ask for the medical records showing what happened to him in Albania?

DES. REP.:                                                                                                                               We thought it would be enough only the way he looks, the way he appears.

[...]

DES. REP.:                                                                                                                               I don't know. As I said before my husband was the one who took over the responsibility of documents.

PRESIDING MEMBER:                                                                                                        All right. And you depended on him to do those things? ...

DES. REP.:                                                                                                                               I'm sorry, yes.

[...]

PRESIDING MEMBER:                                                                                                       So the answer is you don't know whether he got other documents related to his Democratic Party activities? You don't know what those other documents are?

DES. REP.:                                                                                                                               I don't know because my husband took care of it.

[19]            It should have been clear to the RPD during the hearing, says counsel, that the designated representative was not fulfilling her duties and should have been replaced. Moreover, it is apparent that the board was aware of it. In its reasons, it states that Arjan "never wrote, nor did his wife take the initiative to call his friends at the RD to get him the necessary document for the minor claimant's case. That is unreasonable and implausible". Further, it commented, "Many times, the wife said that her husband was supposed to take care of the documents. However, they also presented a psychological report indicating that the claimant's father suffered from depression. He testified he is often in pain and could not remember things. Yet the wife did nothing to procure any document for the claimant's case. That is not reasonable".

[20]            Recognizing that the infant claimant had legal representation, counsel submits that while that is a factor to consider, it is not determinative. The contention is that when a designated representative is not acting reasonably, the designated representative must be replaced. In this matter, an independent designated representative should have been appointed to stress the importance of obtaining the documents. The best interests of the child were not served and Maria cannot be said to have had a fair hearing.

[21]            I am not persuaded by counsel's submissions. When selected extracts from a transcript that includes four sittings are viewed in isolation, deficiencies may appear to exist. However, when the transcript is reviewed in its entirety that is not the case.

[22]            Mr. Justice Teitelbaum determined in Espinoza v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 73 (T.D.) that the board has a duty to assess whether the person to be designated appreciates the nature of the proceedings. This is particularly so in the case of children. It is not enough that persons are represented by counsel. It is the board's responsibility to ensure that the representative understands what it is to be a representative and the consequences of being named a representative.

[23]            Here, at counsel's request, the RPD appointed Anilda, the mother, to be Maria's designated representative. The board referred to its obligation to make "an intelligent choice" and it noted that there was no conflict of interest and that the mother would act in the best interests of the child. It informed Anilda of her duties to bring forward evidence and to instruct counsel. It further noted that should Anilda be deported, a replacement would be necessary. All of this followed counsel's representation to the board that he had discussed with Anilda the "issues regarding designated representative" and that she was content. There was no issue with respect to capacity. Later, the RPD reiterated Anilda's duty to act in the best interests of the child.    After receiving the amendments to the PIF from counsel, it questioned Anilda's understanding of the amended PIF prior to having her confirm its contents.

[24]            The determination of the RPD turned on credibility. Counsel submits that the lack of documentation had a great deal to do with its finding that there was no credible evidence upon which to base the claim. My reading of the decision, having reviewed the transcript in detail, is that the board simply did not believe that some of the documents existed. Ample time was provided to the family to obtain whatever was required. While Anilda testified that her husband was responsible for this task, both Anilda and Arjan stated that no attempt to obtain medical reports was made because Arjan's injury was visible and therefore, medical reports would not be required. Both of them testified that a document evidencing Arjan's membership in the DP required his personal presence and that no other individual could obtain such a document in his absence. This was in spite of the RPD having disclosed that, in its experience, DP supporters had been able to get party documents through contacts.

[25]            Additionally, Anilda vacillated when responding to questions regarding documentation. The newspaper article (that was later found to be fraudulent after an authentication check) was allegedly obtained by her mother-in-law in Albania, taken by her mother-in-law to Greece, sent back to Albania, then forwarded by an Albanian friend to the Tabaj family in Canada. While she testified that her mother-in-law obtained Maria's birth certificate, she also said that both she and her mother-in-law arranged to have Maria added to the passport. She consistently stated that there was no one left in Albania to obtain the documents on her behalf after having previously testified that Arjan's maternal uncle lived in Greece, but travelled back to Albania to collect the rents for the home he owned there.

[26]            Although the issue of the birth certificate was ultimately resolved, Anilda first said that the immigration officials had Maria's birth certificate. Later, she stated that Maria had a birth certificate, but she did not bring it because they thought the parents' birth certificates and the family certificate would be enough. She later confirmed that she did not have Maria's birth certificate on arrival in Canada.

[27]            When it was determined that the newspaper article, submitted in support of Arjan's allegation that his injury was sustained as a result of being shot by the Albanian secret service, was fraudulent, Maria's counsel was provided with an opportunity to make submissions relating to that issue.

[28]            In my view, the finding of the RPD that there was no credible evidence in support of the allegation that Maria had a serious possibility of being persecuted in Albania based on a Convention ground was open to it. The board reached that conclusion, not because of a lack of documentary evidence, but because the witnesses testifying on behalf of Maria were not credible. The board's use of the words "unreasonable" and "implausible" does not lead to the conclusion suggested by counsel. While its words might have been better chosen, the board's reasoning cannot be faulted. The credibility findings are clear and unequivocal. Moreover, they have not been challenged.

[29]            The other significant factor is that Maria was represented by counsel at the refugee hearing. Counsel did not suggest that Anilda should be replaced as the designated representative. No allegation that counsel should have done so has been made. Rather, counsel now suggests that the onus is on the board, on its own initiative, to revoke the designation when it does not appear that the designated representative has put the best possible evidence forward. There are two difficulties with this position. The first is that counsel at the hearing, not having taken any objection to Anilda continuing as the designated representative, cannot be heard now to present such objection as a ground for judicial review. The second is that, as previously stated, the RPD simply did not believe that the purported evidence existed.

[30]            Although decided in relation to a vacation hearing, the following comments of the Federal Court of Appeal in Coomaraswamy v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 501 are apposite:

No doubt, the parents' conduct would have justified the Board in revoking their designation as the children's representatives and in designating someone else to represent the children in connection with the vacation proceeding. However, the fact is that it did not do so, nor was it asked to do so by counsel in his capacity as the children's lawyer. In these circumstances, I do not accept that, on its own initiative, the Board was legally obliged to replace the parents and designate another representative. In stating that the Board "should" remove a person who becomes unsuitable to act as a designated representative, the guideline cannot be said to assume that removal is required in every case, especially when the designated representative is the parent whom the child is accompanying.

In any event, it is difficult to see what else a different designated representative could have done to advance the children's position at the vacation hearing. There was no obvious conflict of interest between the adults and the children ... Any failure by the board to designate a new representative could thus not be said to have prejudiced the children or to have deprived them of a fair hearing.

[31]            Similarly, here there was no conflict of interest between Anilda and Maria. A review of the transcript in its entirety paints a different picture than that presented by counsel in argument. The RPD was not, in the circumstances of this matter, required to designate a new representative. Maria was not deprived of a fair hearing.

[32]            Maria's counsel proposed two questions for certification:

(1)         Does the board have a duty to replace a designated representative where it is apparent that the designated representative is unable to fulfill her role?

Counsel for the respondent opposed the certification of this question on the basis that the case turns on its own unique facts and therefore the question is not one of general importance. I agree with the respondent and the question will not be certified.

(2)         Can a refugee claim succeed on the basis of a well-founded fear of persecution for reason of membership in a particular social group that is a family, if the family member who is the principal target of the persecution is not subject to persecution for a Convention reason?

Counsel for the respondent also opposed the certification of this question on the basis that the question would not be determinative of an appeal. Because the credibility findings of the RPD were not challenged, any consideration of nexus is moot, since nexus must be established with sufficient credible evidence, as with all other components of an applicant's refugee claim. Again, I agree with the respondent's position and the question will not be certified.

[33]            In the result, the application for judicial review is dismissed and an order will so provide. No question will be certified.

                                                            < < Carolyn Layden-Stevenson > >          

                  Judge

Fredericton, New Brunswick

January 22, 2004

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-463-03

STYLE OF CAUSE:                           MARIA TABAJ v. MINISTER OF CITIZENSHIP AND                                                                         IMMIGRATION

DATE OF HEARING:                        January 15, 2004

PLACE OF HEARING:                       Toronto, Ontario.

REASONS FOR ORDER BY:             Madam Justice Layden-Stevenson

DATED:                                                   January 22, 2004

APPEARANCES BY:                        Mr. Jack Martin                                                                                              

                                                                                                                     For the Applicant

                                                                Ms. Matina Karvellas

                                                                                                                   For the Respondent

SOLICITORS OF RECORD:           Mr. Jack Martin           

                                                                 Toronto, Ontario                                                   

                                                                                                                    For the Applicant

                                                                 Ms. Matina Karvellas

                                                                 Department of Justice Ontario Regional Office.

                                                                Toronto, Ontario                                                                                                                     

                                                                                                                   For the Respondent