Date: 20100218
Docket: IMM-3030-09
Citation: 2010 FC 167
Ottawa, Ontario, February 18,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
MARGARITA HERRERA ACEVEDO,
HUGO EFRAIN CANALES MUNGUIA,
NOE MAURICIO CANALES MUNGUIA
AND BRALLAN
EFRAIN CANALES HERRERA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated May 12, 2009, wherein the Board determined that the Applicants were
neither convention refugees nor persons in need of protection under sections 96
and 97 of the Immigration and Refugee Protection Act, R.S. 2001, c. 27 (IRPA).
[2]
Based
on the reasons below, the application is dismissed.
I. Background
[3]
There
are four Applicants in this matter. The adult Applicants, Margarita Herrera
Acevedo, Hugo Efrain Canales Munguia, and Noe Mauricio Canales Munguia, are
citizens of Honduras. Margarita
and Hugo are married and Noe is Hugo’s brother. The minor Applicant, Brallan
Efrain Canales Herrera, is the son of Margarita and Hugo. Brallan is a citizen
of the United
States.
[4]
The
adult Applicants claim a fear of persecution at the hands of persons who killed
the two male Applicants’ father. The family made a denunciation after the
killing and the killers were charged and placed in custody. The killers escaped
before they were convicted or sentenced. Subsequent to the escape, the family
began to receive threats. The three adult Applicants then went to the United
States
and worked without status. Brallan was born at that time. The Applicants stated
they did not apply for protection in the United States as they had
heard that many Honduran applicants were rejected. The family came to Canada and applied
for protection in 2005.
[5]
The
Applicants’ refugee hearing was held on April 10, 2007. The Applicants were
represented by different Counsel at the hearing. Their former Counsel swore an
affidavit stating that after the hearing she had an “off the record” conservation
with the presiding Board member. During this conversation, the former Counsel
was advised that the Board was satisfied and prepared to render a positive
decision subject to the Applicants not having status in the United
States.
[6]
After
the hearing, the former Counsel made several requests with United
States
authorities to confirm that the adult Applicants had no status in America. The former
Counsel forwarded these communications to the Board and inquired about a
decision, but received no response.
[7]
The
Board’s decision was released on May 2, 2009, and no explanation for the delay
was provided. The Board rejected the claims.
[8]
As
set out in the reasons, the determinative issue was state protection. The Board
determined that the corruption of police is not so persuasive that the Applicants
would not have had their complaints addressed. The Board also determined that
the adult claimants had not taken all reasonable steps to continue to seek
state protection in Honduras. The Board made this determination based on the
fact that the adult Applicants had not asked for state protection when they
received the threats, and therefore they had not discharged their onus of showing
“clear and convincing” proof of the state’s inability or unwillingness to
protect them.
[9]
With
regard to the minor’s application, the Applicants did not make a claim that he
was in fear of persecution in the United States. In its decision, the
Board determined that there was no evidence that the minor child would be
persecuted in the United States.
II. Standard
of Review
[10]
The
issues raised in this matter which relate to state protection or a question of
fact will be assessed on a reasonableness standard (see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1
S.C.R. 339). Issues of procedural fairness and abuse of process will be
addressed on a standard of correctness.
[11]
As
set out in Dunsmuir, above, and Khosa, above, reasonableness
requires the existence of justification, transparency, and intelligibility in
the decision-making process. It is also concerned with whether the decision
falls within a range of acceptable outcomes that are defensible in respect of
the facts and law.
III. Issues
[12]
The
Applicants raised the following issues:
(a) Did
the Board’s delay in issuing the decision prejudice the Applicants?
(b) Did
the Board provide insufficient reasons?
[13]
Prior
to addressing these issues, it is important to discuss the effect of the “off
the record” conversation.
[14]
In
this case, the former Counsel did not take contemporaneous notes of the “off
the record” conversation, submit a letter to the Board outlining the conversation,
or move to reopen the hearing based on a breach of natural justice under rule
55 of the Refugee Protection Division Rules, SOR/2002-228 (see below).
[15]
In
Dini v. Canada (Minister of Citizenship and Immigration), 1999 Can
LII 8339 (F.C.), the Court accepted
counsel’s affidavit evidence of an off the record conversation. However, at
paragraph 4, Justice Barbra Reed cautioned that relying on submissions that are
made to a Board member that are not formally recorded as part of the record is
not an appropriate way of proceeding.
[16]
The
former Counsel did provide an affidavit setting out the “off the record”
conversation and was cross-examined on that affidavit. I accept that the
conversation took place.
[17]
However,
the existence of the conversation does not give rise to a breach of procedural
fairness. I agree with the Respondent that the Applicants cannot rely on
the post hearing “off the record” conversation to create a legitimate
expectation of a substantive result (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; [1999] S.C.J. No.
39).
[18]
In
this case, the Applicants could have applied for the hearing to be reopened
under rule 55 of the Refugee Protection Division Rules, which mandates
that the Refugee Protection Division must allow the application if it is
established that there was a failure to observe a principle of natural justice.
Rule 55 is set out thus:
|
Application to reopen a claim
55. (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.
Form of application
(2) The application must be
made under rule 44.
Claimant’s application
(3) A claimant who makes an
application must include the claimant’s contact information in the
application and provide a copy of the application to the Minister.
Factor
(4) The Division must allow
the application if it is established that there was a failure to observe a
principle of natural justice.
|
Demande de réouverture d’une demande
d’asile
55. (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.
Forme de la demande
(2) La demande est faite
selon la règle 44.
Contenu de la demande faite par le
demandeur d’asile
(3) Si la demande est faite
par le demandeur d’asile, celui-ci y indique ses coordonnées et en transmet
une copie au ministre.
Élément à considérer
(4) La Section accueille la
demande sur preuve du manquement à un principe de justice naturelle.
|
[19]
As
set out in paragraph 6 of their Memorandum of Fact and Law, the Applicants’
former Counsel relied on this “off the record” conversation with regard to the
outcome and did not submit any further updated information to the Board. As set
out by Justice Reed in Dini, above, this is not an appropriate way of
proceeding. The “off the record” conversation did not create substantive rights
that could have been relied on.
A. Did
the Board’s Delay in Issuing the Decision Prejudice the Applicants?
[20]
The
Applicants argue that the delay of approximately two years between the hearing
and receiving the decision prejudiced the Applicants as the Board made a
factual error, relied on old country documentation, and disregarded the torture
faced by their father. The Applicants take the position that the delay brought
the refugee determination system into disrepute.
[21]
The
Respondent argues that the Applicants did not demonstrate any prejudice caused
by the delay.
[22]
In
Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R.
307; 2000 SCC 44, the Supreme Court held that there may be cases of abuse of
process brought about by delay where inordinate delay has directly caused
significant psychological harm to a person, or attached a stigma to a person's
reputation, such that the human rights system would be brought into disrepute. At
paragraph 115, the Supreme Court emphasized that few lengthy delays will meet
this threshold.
[23]
In
Qazi v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 2069; 2005 FC 1667, Justice Richard Mosley reviewed the case law on
delay in the issuance of immigration decisions. He held that the case law
consistently set out that in order to succeed on an application for judicial
review, the applicant must demonstrate both that the prejudice had arisen as a
result of the delay and that the delay was unreasonable. In Qazi, above,
Justice Mosley held that the applicant had not demonstrated prejudice from a
two year delay in his Pre Removal Risk Assessment decision. At paragraph 23,
Justice Mosley stated that one might conclude that the applicant had in fact
benefited from the delay as it had resulted in a two year period in which action
was not taken against him.
[24]
For
the following reasons, the Applicants have not demonstrated that they were
prejudiced as a result of the delay.
(1) Factual
Errors
[25]
The
Applicants argue that the long delay resulted in the Board member making
factual errors and omissions. First, that the Board erred in stating that the
father’s killers had been convicted and sentenced for the crime. The evidence
was that the two men escaped custody during their trial and began to issue
death threats against one of the Applicants. Second, that the Board member did
not have regard to the evidence of the father’s torture, but concluded there
was state protection based on improvement in policing petty criminality. The
Applicants argue that the Board member’s “off the record” comments were a fresh
impression of the evidence. They continue that as these comments were different
from the decision, it is reasonable to conclude that the member had forgotten
the specifics of the case by the time the decision was rendered.
[26]
While
the Board did make an error in its statements that the alleged killers were
convicted and sentenced, this error does not undermine the ultimate conclusion
on state protection. I note that in Ogiriki v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 420; 2006 FC 342,
Justice Simon Noël held that Board decisions maybe reasonable even if a few
"weaknesses" are identified (see paragraph 13).
[27]
The
fact that the Board did not place an emphasis on the evidence of the father’s
torture but on other areas of state policing does not mean that they delay
prejudiced the Applicants. The Board has discretion in assessing documentary
evidence and is entitled to give some evidence more weight than others (see Velinova
v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 340; 324 F.T.R. 180). A
tribunal is assumed to have weighed and considered all the evidence presented
to it unless the contrary is shown (see Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.).
[28]
I
have already stated that the Applicants cannot rely on the “off the record”
outcome for a substantive position.
(2) Documentation
Package
[29]
The
Applicants also argue that the delay resulted in the decision being based on
dated country condition documentation. The documentation package entered as an
exhibit at the hearing was dated May 2006, and included material from 2001 and
2003. The documentation package in effect at the time of the decision was dated
March 16, 2009.
[30]
The
Respondent argues that the Applicants have not provided specific information,
beyond the updated index, that could have resulted in a different decision. Therefore,
they argue, the Applicants have failed to show how they were prejudiced by the
delay.
[31]
At
paragraph 12 of their Memorandum of Fact and Law, the Applicants state that the
National Documentation Package had been updated and listed three new articles.
However, they failed to demonstrate how these articles are different from the
previous material. As this is an issue of procedural fairness, the Applicants
could have filed affidavit evidence on the matter (see Qazi, above, at
paragraph 17).
[32]
A
claimant seeking to rebut the presumption of state protection must adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate (Carillo
v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94; 69 Imm. L.R.
(3d) 309 at paragraph 30). While they may not have been expected to bring the
new National Documentation Package to the Board’s attention, the Applicants could
have submitted additional material on state protection as it became available
during the intervening period.
B. Did
the Board Provide Insufficient Reasons?
[33]
The
Applicants argue that the Board’s reasons were insufficient as they are
comprised of a two-and-a half page decision, had no citations, and that the
Board did not refer to the documents it preferred over others.
[34]
I
agree with the Applicants that the Board had a duty to provide reasons (see Baker,
above, at paragraph 43). The Applicant argues that the Court should follow the
line of thinking in Javed v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1458; 41 Imm. L.R. (3d) 118. In Javed,
above, Justice John O’Keefe set out the parameters to assess the adequacy of
reasons provided by the Board when it dismissed a motion to reopen a claim. At
paragraphs 21 and 22 of Javed, above, Justice O’Keefe stated:
[21] My review of the Board's
reasons in this case lead me to the conclusion that the reasons were not
meaningful or sufficient. From the reasons, I am unable to determine why the
Board made that decision, as the reasons only state that the claimants did not
show that the decision to declare their claims abandoned breached the rules of
natural justice. On judicial review, I cannot assess the reason why the Board
came to this conclusion as the reason is not stated in the Board's decision.
[22] The failure to provide
meaningful or adequate reasons for the decision is a breach of the duty of
procedural fairness and therefore the Board's decision must be set aside and
the matter referred to a differently constituted panel for reconsideration.
[35]
I
note that in Javed, above, the Board’s reasons were comprised of one
sentence.
[36]
Based
on the parameters set out in Javed, above, I do not find the reasons in
this matter to be unreasonable. I am able to determine and assess the Board’s
decision and how it came to this conclusion. There was no breach of the duty of
procedural fairness.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is dismissed; and
2.
there
is no order as to costs.
“ D.
G. Near ”
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