Date: 20100211
Docket: IMM-3883-09
Citation: 2010 FC 131
Ottawa, Ontario, February 11,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ESTEFANIA LOPEZ DIAZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
[1]
Estefania
Lopez Diaz came to Canada from Mexico as a teenager. She
sought Canada’s protection
because her mother’s lover blamed her for their break-up. He beat her and
threatened to kill her.
[2]
At
her hearing before the Refugee Protection Division she was not only represented
by counsel, but also by a designated representative, as she was still under the
age of 18.
[3]
One
of the documents she proffered in evidence was a police report of her complaint.
The Panel harboured suspicions as to the provenance of this document, and obtained
consent to verify its authenticity. Reports came back from Mexico, including
one from the officer who allegedly took the complaint, to the effect that the
authorities had no such record thereof.
[4]
This
fact was brought to the attention of Ms. Lopez Diaz’s lawyer and
representative. They chose not to bother her with this information. Without
seeking instructions, the lawyer took the position that the document had been
manufactured by Ms. Lopez Diaz’s mother in Mexico, did not reflect upon Ms.
Lopez Diaz herself and that she was entitled to Canada’s
protection.
[5]
The
Panel dismissed the claim on the grounds of lack of credibility, essentially
tied in with what it had determined to be a false report.
[6]
The
application for leave to seek judicial review of that decision was dismissed.
[7]
Thereafter,
Ms. Lopez Diaz retained new counsel who obtained another report from the same
police officer which appears to confirm that he had indeed received Ms. Lopez
Diaz’s original complaint. Counsel then applied to have the hearing reopened,
but was refused.
[8]
This
is a judicial review of that decision.
[9]
The
reopening of a claim or application is subject to Rule 55 of the Refugee
Protection Division Rules. Subsections 1 and 4 thereof provide:
|
(1) A claimant or the Minister may make an
application to the Division to reopen a claim for refugee protection that has
been decided or abandoned.
[…]
(4) The Division must allow the application if it is
established that there was a failure to observe a principle of natural
justice.
|
(1) Le demandeur d’asile ou le ministre peut
demander à la Section de rouvrir toute demande d’asile qui a fait l’objet
d’une décision ou d’un désistement.
[…]
(4) La Section accueille la demande
sur preuve du manquement à un principe de justice naturelle.
|
[10]
The
reasons behind the decision to dismiss the motion to reopen the claim are very
short. They read:
The IRB jurisdiction with respect to
reopening the hearing is very limited; in fact, once it has rendered his
decision, the IRB has fulfilled his function and is considered functus
officio. It can return to it a second time in limited circumstances, only
when there has been a violation of the rules of natural justice. In the case at
bar, following the review of the application, the supporting documents and
listening to the tapes of the hearing and all elements contained therein, the
undersigned finds that the member responsible of the claim for the RPD rendered
a proper decision that fully adhered to legal procedures and the rules of
natural justice. The claimant was duly convoked to a hearing, was represented
by counsel land a designed representative. A post hearing verification of a
document was conducted. The claimant was informed and counsel had the
opportunity to respond. The tribunal member therefore pronounced judgement on
the basis of the evidence at her disposal. Further, the argument presented by
the applicant does not justify the reopening under rule 55 of the Rules of
Practice because they deal with an interpretation of the facts and law of the
case. These arguments are more appropriate for an Application for Judicial
review. These are not questions of natural justice.
[11]
The
case law of this Court clearly establishes that an application to reopen can
only be, and must be, allowed if there was a failure to observe a principle of
natural justice. The decision of Mr. Justice Mosley in Ali v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1153, 258 F.T.R. 226, 44 Imm.
L.R. (3d) 4, has been followed time and time again. Many of the cases were set
out by Madam Justice Layden-Stevenson, as she then was, in Lakhani v. Canada
(Minister of Citizenship and Immigration), 2006 FC 612. This point of view
has been endorsed, albeit in obiter, by the Federal Court of Appeal in Nazifpour
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 35, [2007] 4 F.C.R. 515, 60 Imm.
L.R. (3d) 159, which dealt with Section 71 of the Immigration and Refugee
Protection Act, the language of which differs somewhat from Rule 55.
[12]
What
we have here is a new fact. Subsequent to the decision of the Refugee
Protection Division, the police officer appears to have recanted. However, it
is not enough simply to have new facts, unlike the reopening procedure under
other statutes. There must be a lack of natural justice.
[13]
Counsel
for the Minister emphasizes that the original decision of the Refugee
Protection Division was unquestionably fair. It was; of that there can be no
doubt. Ms. Lopez Diaz was let down by her former counsel and designated
representative. Had they told her about the information received by the Refugee
Protection Division from Mexico, she would have reiterated that she was
personally present before the police officer. This may well have led to further
inquiries. Certainly the lawyer had no mandate to admit that the original
police report was fabricated. Based on the latest information, it may not have
been.
[14]
Although
the Minister characterizes the decision of the lawyer and the designated
representative not to discuss this matter with their client as tactical, it
appears to me that this failure should be characterized as nonfeasance, rather
than malfeasance (Medawatte v. Canada (Minister
for Public Safety and Emergency Preparedness), 2005 FC 1374, 52 Imm.
L.R. (3d) 109).
[15]
A
case directly on point is Mr. Justice Lemieux’s decision in Bouguettaya v. Canada (Minister of
Citizenship and Immigration), [2001] 1 F.C. 3 (T.D.). The gloss thereon
by Mr. Justice Mosley in Parshottam v. Canada (Minister of
Citizenship and Immigration), 2008 FC 51, 68 Imm. L.R. (3d) 288, is
applicable. He said at para. 22:
The cases cited by the applicant as supporting his claim that
reception of the evidence is necessary in the interests of justice are not
directly on point. In Ou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 235, 48
Imm. L.R. (2d) 131, the Court allowed fresh and highly relevant evidence from a
witness who had inadvertently conveyed incorrect information to the Board prior
to an abandonment hearing. Similarly, in Bouguettaya v. Canada (Minister of
Citizenship and Immigration), [2001] 1 F.C. 3 , [2000] F.C.J. No. 992, the
tribunal had erred in not finding that a breach of natural justice resulted
from reliance on factually incorrect information when it was brought to their
attention on a motion to reopen the hearing.
[16]
So
it is in this case. The Panel had every reason to consider the original police
report to be forged. Had it had information that it was not forged, Ms. Lopez
Diaz may or may not have been found to be credible. It is not for this Court to
say (Cardinal v. Kent Institution, [1985] 2
S.C.R. 643). If she had been found credible, then the Panel would have been
obliged to consider state protection, and perhaps the internal flight
alternative.
[17]
The
Minister submits that the application to reopen is an abuse of process in that
an application for leave and for judicial review of the Panel’s original
decision was dismissed. Reference was made to my decision in Skandrovski v. Canada (Minister of
Citizenship and Immigration), 2005 FC 341, 29 Admin. L.R. (4th) 70.
However, reliance thereon is misplaced. I said it would not do to have the
Board unwittingly and unknowingly in effect review a decision of this Court not
to grant leave. That is not what happened in this case. The “new facts” which
were put before the Panel on the application to reopen were not before the
Court in the application for leave. As I said in para. 16 of Skandrovski:
That is not to say that there is no room
for an application to reopen a claim if leave were denied by this Court. New
facts could come to light. […]
That is exactly what happened in this case;
new facts which were brought to the attention of the Board. The decision under
review is wrong in law. These are issues of natural justice.
CERTIFIED QUESTION
[18]
My
reasons for order as originally issued comprised the foregoing paragraphs. At
the hearing I gave each party a delay in which to propose a question for
certification, and a further delay for each to respond to the other. As no
questions crossed my desk, I assumed neither party had suggested a question,
and as I did not see the need to certify a question myself, I granted the
application for judicial review without certification.
[19]
Regrettably,
through a series of internal mishaps, it only came to my attention the day
after I issued the order that the Minister had, in fact, proposed a question
for certification, and that Ms. Lopez Diaz’s counsel had replied. I
immediately issued a direction that as the order had been based on an
incomplete record I would reconsider in accordance with Rule 397 and following
of the Federal Courts Rules.
[20]
The
Minister proposed the following question:
Is a document that is obtained after a
decision of the IRB dismissing an asylum claim, the content of which
contradicts the evidence relied upon in the primary conclusion of the IRB, a
sufficient basis upon which it can be demonstrated that there has been a
violation of the rules of natural justice within the meaning of section 55 of
the Refugee Protection Division Rules? Is the appropriate recourse in
such circumstances a Pre-Removal Risk Assessment as opposed to a motion to
reopen before the IRB?
[21]
Without
a certified question, my decision is final. An appeal to the Federal Court may
only be made in accordance with s. 74 of IRPA if “…the judge certifies
that a serious question of general importance is involved and states the
question.” According to the Federal Court of Appeal, the question:
a. must be
determinative or dispositive of the appeal. (Zozai v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, 318 N.R.
365, 36 Imm. L.R. (3d) 167 and Varela v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 145, 80 Imm.
L.R. (3d) 1 at para. 28);
b. must transcend
the immediate interests of the parties to the litigation. (Canada (Minister of
Citizenship and Immigration) c. Liyanagamage (1994), 176
N.R. 4, Boni v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 68, 357 N.R.
326, 57 Imm. L.R. (3d) 4 and Kunkel v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 347); and
c. must
contemplate issues of broad significance or general application. (Canada (Minister of
Citizenship and Immigration) c. Liyanagamage, above).
[22]
The
Minister submits that there are two schools of thought within this Court as to
new facts giving rise to a breach of natural justice which would support an
application to reopen a refugee hearing. In support of that proposition, a number
of cases were cited including Hurtado v. Canada (Minister of
Citizenship and Immigration), 2008 FC 270, 324
F.T.R. 192, 70 Imm. L.R. (3d) 142 at paras. 46 to 50 and Enahoro v. Canada (Minister of
Citizenship and Immigration), 2006 FC 430 at paras.
19-20 and 26-27.
[23]
In
my opinion those cases turn on their own facts and are not authority for the
proposition that there are two schools of thought as to the circumstances in
which a refusal to reopen a hearing on the grounds of “new facts” constitutes a
breach of natural justice.
[24]
The
original evidence, obviously hearsay in nature, was sought, obtained and filed
by the RPD itself through the auspices of its Research Directorate and the
Tribunal Officer. This is similar to Bouguettaya, above, where the incorrect
information was provided by the Board itself, in its National Documentation
Package on Algeria, current at the time. The unreliable information in the
present case was obtained and introduced by the Tribunal itself.
[25]
In
the recent decision of Kunkel, above, in referring to Boni,
above, Madam Justice Layden-Stevenson, speaking for the Federal Court of
Appeal, said at para. 10:
Accordingly,
by answering the certified question, our Court could only rule on the standard
applicable to the decision of the visa officer in this case. It is trite law
that a question that does not transcend the decision in which it arose should
not be certified, and in such a case the Court of Appeal should not answer it
(see Wong v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1049; Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637, (1994) 176 N.R. 4 at paragraph 4).
[26]
That
is my own assessment of this case, and so no question shall be certified.
[27]
I
am further of the opinion that a Pre-Removal Risk Assessment is not an ample
substitute for a reopened hearing. The issue before a PRRA Officer is that of “new
facts”, not natural justice, and there is no guarantee of a right of audience.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted.
2.
The
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board dated July 7, 2009, is quashed.
3.
The
application to reopen the applicant’s refugee claim is referred back to another
board member for re-determination.
4.
There
is no serious question of general importance to certify.
“Sean Harrington”
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