Date: 20101116
Docket: IMM-1846-10
Citation: 2010 FC 1151
Toronto, Ontario,
November 16, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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RAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant is an adult female citizen of Mexico. She was the victim of incest
perpetrated by her father and fled to Canada
for that reason as soon as she was reasonably able to do so. To protect her
identity I have made an order that she simply be referred to in the style of
cause and otherwise as RAM.
[2]
The issue
before the Court presently is a decision of the PRRA Officer rejecting the
Applicant’s application that she not be removed to Mexico. It is conceded by the Respondent that
a substantial bundle of documents was submitted by the Applicant in support of
her PRRA application but that those documents were not in the record considered
by the PRRA Officer. It is further conceded by Respondent’s Counsel that at
least many of those documents are in the category of “new” documents that
should have been considered by the Officer. The Respondent’s Counsel states in
the Memorandum filed with the Court that it is “regrettable” that these
documents were overlooked but makes two arguments in resisting this application
for judicial review. The first argument is that the documents, even if
considered, would not have made a difference to the decision. The second is
that the decision of the RPD and the PRRA Officer as to an Internal Flight
Alternative are not addressed in any sufficient way by these documents and
therefore they are irrelevant to the final result.
[3]
Both
arguments raised by Respondent’s Counsel would require this Court to make a
detailed review of the 23 or so documents in question, including several
affidavits providing legal opinions, and make a determination both as to
relevance and their effect on the ultimate result. This is not the sort of
exercise this Court should pursue. Once it is shown that the documents were
overlooked and that at least some documents are “new” then, unless on their
face the documents are clearly irrelevant, the matter should be returned to the
PRRA Officer for a reasoned assessment. I echo the carefully chosen words of
Mactavish J. at paragraph 13 in Lee v. Canada (Minister of Citizenship and
Immigration), 2009 FC 782, 82 Imm L.R. (3d) 235:
In light of the above example, I am not persuaded that the
evidence that was not considered by the PRRA officer was clearly not material
to the application, or that it could not have affected the result. As a
consequence, I am of the view that the matter must be remitted for a fresh
assessment.
[4]
I
understand that the Department representing the Respondent has wanted to make
an issue of this matter, however, given the obvious way in which such a matter
should have been handled, namely, consent to have it redetermined, and the
large volume of cases of this nature flooding the Courts, the Respondent should
have consented to its return for redetermination. For this reason I will award
costs to the Applicant but fixed in the modest amount of $250.00, enough to
send a message.
[5]
I must
comment respecting a further matter raised by the Applicant in her written material.
The Applicant alleges misconduct by her former Counsel. She says that certain
documents as to her father’s psychiatric condition were given to her Counsel in
a timely way for presentation to the RPD but were never translated from the
Spanish language as was instructed. Therefore, the RPD gave no regard to the
documents. In the record before me I find a complaint that was lodged with the
Law Society but nothing further is on the record. Applicant’s Counsel advised
that the former Counsel provided a written response to the Law Society but that
is not in the record before me. I am concerned with a practice, fortunately
not widespread, but nonetheless which is seen in this Court from time to time,
of putting blame on a former counsel. Usually there is no evidence of a
complaint to the Law Society. Here there is such evidence but the response is
not in evidence. If a serious argument is raised based on alleged misconduct
or negligence of a former counsel the Court should have in the record before it
all relevant evidence as to the matters alleged. I raise the possibility,
without determining the matter, that the former Counsel should be contacted and
provided with the material and given an opportunity to respond in cases of this
kind. In the present case in any event I do not base my decision on this
ground.
[6]
No counsel
requested certification of a question.
JUDGMENT
For the reasons provided:
THIS COURT’S
JUDGMENT is that:
1.
The
style of cause is amended to identify the Applicant simply as RAM and, to the
extent possible, the existing Court records including electronic records should
be amended accordingly;
2.
The
application is allowed;
3.
The
Applicant’s PRRA application is returned for redetermination by a different
officer upon consideration of a complete record;
4.
The
Applicant is entitled to costs fixed in the sum of $250.00.
“Roger
T. Hughes”
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