Docket: IMM-3571-11
Citation: 2012 FC 225
Ottawa, Ontario, February 17,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NORMA ANGELICA YANEZ TECUAPETLA DAVID
GARCIA HERNANDEZ
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Applicants
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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
Applicants, Norma Angelica Yanez Tecuapetla and David Garcia Hernandez, seek
judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated May 2, 2011. The Board found
that they were not Convention refugees or persons in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Background
[3]
The
Applicants are citizens of Mexico. They were issued Mexican passports on
July 14, 2009 and came
to Canada as visitors
the following day.
[4]
They
made a claim for refugee protection on August 14, 2009 based on a fear of the
female Applicant’s former boyfriend, Jose. She stated that Jose physically and
sexually abused her on a regular basis.
[5]
When
she began seeing the male Applicant, Jose vandalized her car and the walls of
her apartment complex. Jose and his friends also physically assaulted the male
Applicant on several occasions. The female Applicant’s parents were physically
assaulted and robbed. Jose threatened the Applicants and mentioned that family
members would be harmed.
[6]
A
refugee hearing was initially scheduled for the Applicants on January 31, 2011.
The Applicants confirmed that there were “ready, willing and available to
proceed with the hearing” for that date.
[7]
On
January 14, 2011, the Applicants’ counsel, Ms. Patricia Ann Ritter, requested
that the refugee hearing be adjourned due to the female Applicant’s
pregnancy-related symptoms. This request was denied for unsatisfactory medical
evidence.
[8]
As
a result, the Applicants attended their hearing as originally scheduled by the
Board. On their arrival, they learned from the presiding Board Member that a
letter had been received indicating Ms. Ritter was ill and could not attend the
hearing.
[9]
The
Board granted an adjournment and set a new hearing date for April 27, 2011. This
time the hearing would be peremptory. It would proceed regardless of whether
counsel was present. The Applicants would also be required to “show cause” as
to why the Board should not declare their claim abandoned.
[10]
The
Board confirmed that Ms. Ritter would be available on that date but advised the
Applicants to contact her. The Applicants insist that they called Ms. Ritter
to schedule an appointment but were never given a date or time. They tried to
seek assurances from the office the day before that Ms. Ritter would be able to
represent them.
[11]
When
the Applicants arrived at the hearing on April 27, 2011, the Board Member
informed them that their “counsel did call this morning and she has indicated
that she has a medical issue and she’s going to fax something to the board this
morning.” However, there is no fax in the Certified Tribunal Record or other
evidence submitted of an adjournment request.
[12]
The
Board proceeded with the “show cause” hearing, noting the Applicants’ claim
would either be declared abandoned or proceed at that time. The Applicants
were not seen as having done enough to contact their counsel but, since they
indicated a readiness to proceed, the hearing continued with the Applicants
representing themselves. At the conclusion of the hearing, the Board Member
suggested that the Applicants continue to seek advice either with their current
counsel or somebody else.
[13]
The
Applicants’ claim was denied by way of a decision on May 2, 2011.
II. Decision
Under Review
[14]
The
Board’s decision concentrates on the issue of state protection. It found that
the Applicants did not take all reasonable steps under the circumstances to
seek state protection in Mexico prior to seeking international protection
in Canada. For
example, the female Applicant stated that she did not report Jose’s abuses to
police because she thought he would change and she was afraid of him.
[15]
The
Board was not persuaded that police would not investigate the Applicants’
allegations against Jose and his accomplices if they were reported to them. Indeed,
police attempted to pursue individuals who assaulted and robbed the female Applicant’s
parents immediately after being notified (though it should be noted that the
Board considered Jose’s involvement in that incident speculation).
[16]
In
addition, the Applicants’ responses regarding the effectiveness of state
protection were not considered persuasive, since they were largely
unsubstantiated and not consistent with documentary evidence. In its detailed
review of the documents submitted, the Board recognized that while there were
some inconsistencies among several sources, the preponderance of the objective
evidence regarding current country conditions suggested that, although not
perfect, there is adequate state protection for victims of crime in Mexico.
III. Issue
[17]
The
sole issue raised by this application is as follows:
Did the Board
breach natural justice or procedural fairness by proceeding with the hearing
regarding the Applicants’ claim in the absence of counsel?
IV. Standard
of Review
[18]
Issues
of natural justice and procedural fairness demand the correctness standard of
review (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009 CarswellNat 434
at para 43).
V. Analysis
[19]
The
Applicants submit that the Board breached natural justice by forcing them to
proceed without counsel or risk their claim being declared abandoned. Counsel’s
illness was beyond their control. They anticipated that Ms. Ritter would be
there to represent them, prior to contrary information from the Board. The Applicants
tried to contact Ms. Ritter and it was unreasonable for the Board to imply that
they almost guarantee her presence. Moreover, the Board gave no consideration
to any injustice that would occur in proceeding at that time.
[20]
By
contrast, the Respondent contends that no breach resulted in the conduct of the
hearing, despite the absence of counsel. No clear adjournment request was made
and the Board is not obligated to initiate one independently. The Applicants
have failed to identify what would have been different if counsel had
represented them.
[21]
The
Board was intent on proceeding with the hearing. This should not have come as
a surprise to the Applicants as they were informed and indicated an
understanding at the previous adjournment that the April 27, 2011 hearing would
proceed irrespective of whether they were represented.
[22]
Though
the Applicants insist they made efforts to contact Ms. Ritter and seek
assurances that she would be present, the Board did not consider this
sufficient. The Applicants had been unable to get an appointment to discuss
their case with Ms. Ritter and acknowledged some doubt to the Board Member at
the hearing as to whether she would be attending.
[23]
Ms.
Ritter’s failure to communicate in advance with the Applicants should not be
excused. If she knew that she would not be able to attend the hearing in
advance, she could have informed the Applicants to seek out other representation.
[24]
At
the same time, the Applicants were previously made aware that the peremptory
hearing would proceed without representation. Under Rule 58(4) of the Refugee
Protection Division Rules, SOR/2002-228, if the Board does not declare the
claim abandoned “it must start or continue the proceedings without delay.” The
issue becomes whether the decision by the Board to continue with the hearing in
the absence of counsel necessarily leads to procedural fairness concerns.
[25]
Reviewing
the relevant authorities in Mervilus v Canada (Minister of
Citizenship and Immigration), 2004 FC 1206, [2004] FCJ no 1460 at paras
17-24, Justice Sean Harrington concluded that in the context of administrative
proceedings “[t]he right to counsel is not absolute; what is absolute, however,
is the right to a fair hearing.” As a consequence, proceeding in the absence
of counsel is not in and of itself a breach of natural justice. The critical
question is whether that absence deprived the individual of the right to a fair
hearing in some way.
[26]
Applying
these principles in Austria v Canada (Minister of Citizenship and
Immigration), 2006 FC 423, [2006] FCJ no 597, for example, Justice Danièle
Tremblay-Lamer recognized that “in certain circumstances, the absence of
counsel may result in such unfairness during the hearing that Court
intervention is warranted.” However, she was not satisfied that this was case
where the applicant unmistakeably indicated he was ready to proceed and the
Board took necessary steps to ensure that he participated meaningfully in a
hearing that proceeded fairly.
[27]
In
this instance, the Applicants have not identified how the conduct of the
hearing in counsel’s absence was unfair. It does not appear that the Applicants
prepared with counsel after the January 31, 2011 adjourned hearing. There is
nothing in the transcript to suggest that key documents were unavailable or the
Applicants were unable to present their case. Indeed, the Board seems to have
been alive to the Applicants’ interests by indicating at the conclusion of the
hearing to continue to seek advice.
[28]
Contrary
to Mervilus, above, the Applicants suggest that proceeding without
counsel alone warrants intervention by the Court as a breach of natural
justice. This is not necessarily the case as it depends on the fairness of the
hearing more generally.
[29]
As
the Respondent also notes, the Applicants have failed to link to the absence of
counsel to the merits of their case. They have not drawn the Court’s attention
to any error in the decision, such as information that was not presented and
considered, that would reinforce the need to remit the matter back to the
Board.
[30]
The
authorities relied on by the Applicants are of limited assistance as they are
directed primarily at the factors that must be considered as part of an
adjournment request (see for example Siloch v Canada (Minister of Employment
and Immigration), [1993] FCJ no 10, 151 NR 76; Chen v Canada
(Minister of Employment and Immigration), [1994] FCJ no 1369, 25 Imm LR
(2d) 200; Cleopartier v Canada (Minister of Citizenship and
Immigration), 2004 FC 1527, [2004] FCJ no 1834; Antypov v Canada
(Minister of Citizenship and Immigration), 2004 FC 1589, [2004] FCJ no
1931).
[31]
As
the Respondent states, there was no clear request or evidence of an adjournment
(for this pre-condition see Hundal v Canada (Minister of
Citizenship and Immigration), 2003 FC 884, [2003] FCJ no 1131 at para
17). The Certified Tribunal Record refers to the possibility of a further fax
from counsel but whether that fax materialized and the nature of its content
remains uncertain. Also, the Board is not required to advise the Applicants to
seek an adjournment on its own initiative (see Concepcion v Canada (Minister of
Citizenship and Immigration), 2007 FC 410, [2007] FCJ no 563 at paras
2-3; Nguyen v Canada (Minister of
Citizenship and Immigration), 2005 FC 1001, [2005] FCJ no 1244 at para
17).
[32]
Absent
any indication that the Applicants received an unfair hearing, the Board’s
decision to proceed in the absence of counsel does not result in a clear breach
of natural justice or procedural fairness.
VI. Conclusion
[33]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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