Docket: IMM-3917-11
Citation: 2012 FC 568
Ottawa, Ontario, May 10,
2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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GUSTAVO ADOLFO SAENZ GOMEZ
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) rendered on May 12, 2011, and signed on May 19, 2011,
which refused the applicant’s claim to be deemed a Convention refugee or a
person in need of protection under sections 96 and 97 of the Act.
[2]
The applicant seeks an order setting aside the decision and
remitting the matter for redetermination by a differently constituted panel of
the Board.
Factual Background
[3]
Mr.
Gustavo Adolfo Saenz Gomez (the applicant) is a citizen of Colombia. The
applicant seeks protection in Canada as he fears persecution at the hands of
Colombian state authorities in light of his ties with the leftist Patriotic
Union political party.
[4]
In
1985, the applicant submits that he and his father became members of the
Patriotic Union, which was perceived as a threat by the State. Consequently,
the applicant alleges that the Colombian government would regularly persecute
and torture members of the party.
[5]
On
September 28, 1991, the applicant alleges that his father was assassinated.
Subsequently, the applicant went into hiding as his life was also in danger. As
well, the applicant alleges that his family members were also under threat and,
as a result, they were forced to move more than thirty (30) times over the
course of ten (10) years.
[6]
In
1996, the applicant alleges that he was the victim of an armed attack when he
was residing in Cali, a costal city of Colombia.
[7]
On
April 12, 1997, the applicant asserts that he was forced to leave his country
and flee to the United States of America.
[8]
On
June 6, 2004, the applicant’s cousin was tortured and killed by the police. His
brother Rodrigo was also assassinated on October 3, 2004 after participating in
student revolts. The applicant alleges that both his cousin and brother were
killed by state authorities due to the legal proceedings that they had launched
in relation to the applicant’s father’s death.
[9]
The
applicant lived in the United States from April 12, 1997 to March 5, 2009, at
which point he arrived in Canada and sought asylum.
[10]
The
applicant’s refugee claim was heard by the Board on May 12, 2011.
[11]
The
Board denied the claim on the basis that the applicant’s allegations were not
credible.
Issue
[12]
This
matter raises the following issue: was the applicant denied a fair hearing due
to the ineffective assistance of counsel?
[13]
The
Supreme Court of Canada in R v GDB, 2000 SCC 22 at para 27, [2000] 1 SRC
520, instructed that incompetence is to be determined using the reasonableness
standard. The Court agrees with Justice Zinn’s view that when incompetence of a
counsel is alleged, “caution is particularly relevant because the former
representative [counsel] is not before the Court to explain his actions” (TKM
v Canada (Minister of
Citizenship and Immigration), 2011 FC 927 at para 4, [2011] FCJ No
1154.
[14]
Indeed,
in the present case the Court is left to assess the applicant’s allegations on
solely the basis of the facts disclosed in the record.
Applicant’s
Submissions
[15]
The
applicant submits that he did not have a fair hearing due to the ineffective
assistance of his former counsel.
[16]
The
applicant alleges that the omissions in his Personal Information Form (PIF)
were the fault of his lawyer because he was never informed that his PIF had to
be detailed and complete. The applicant contends that his lawyer did not
interview him in order to prepare his PIF and that the preparation of the
applicant’s PIF was relegated to the lawyer’s assistant/interpreter. As well,
the applicant alleges that the lawyer’s interpreter had prepared his PIF
narrative in French, based on a statement that the applicant had written in
Spanish. The applicant asserts that he speaks no French and that the agent did
not translate his narrative back into Spanish in order to ensure that it was
accurate and complete, though the agent signed a declaration to that effect.
[17]
Moreover,
the applicant advances that he had very limited contact with his lawyer,
despite the fact that the applicant had made concrete efforts to do so and his
lawyer ignored his requests for guidance prior to the hearing and failed to
advise him on how to obtain corroborating documentation in support of his
allegations.
[18]
In
addition, the applicant affirms that before the hearing he gave his lawyer
certain corroborating documents that he had in his possession but his lawyer
failed to submit a key document from the Colombian Attorney General’s office,
dated April 28, 2011 (confirming the existence of proceedings in relation to
the applicant’s father’s murder) which was “exactly the type of document that
the Board found that the applicant had not tried to obtain, which seriously
affected his credibility in the Board’s eyes” (Applicant’s Memorandum of
Argument, para 15).
[19]
The
applicant also submits that he has filed a complaint with the Barreau du Québec
on or about June 24, 2011, concerning his lawyer’s conduct.
Respondent’s Submissions
[20]
For
its part, the respondent argues that the Board’s decision was reasonable and
that the applicant failed to provide sufficient corroborating evidence that he
was denied a fair hearing due to the ineffective assistance from his former
counsel.
Analysis
[21]
After
reviewing the documentary material, the applicant’s testimony, the arguments of
the parties and the pertinent case law, the Court cannot accept the applicant’s
assertion that a breach of natural justice occurred in the case at hand. The
Court is of the view that the applicant failed to demonstrate that there was a
reasonable probability that, but for his former counsel’s incompetence, the
result of the hearing would have been different.
[22]
The
Court reminds that the heavy burden of establishing a breach of procedural
fairness falls upon the shoulders of the applicant. The Court reminds that a
counsel’s incompetence will only amount to a breach of procedural fairness in
clearly established and exceptional cases.
[23]
The
test for whether the incompetence of counsel amounts to a breach of natural
justice and procedural fairness is whether counsel’s actions “constituted
incompetence” and whether counsel’s actions resulted in a “miscarriage of
justice” (GDB, above, at paras 26-27,; Memari v
Canada (Minister of Citizenship and Immigration), 2010 FC 1196, [2010] FCJ
No 1493; T.K.M. v Canada (Minister of Citizenship and Immigration), 2011
FC 927, [2011] FCJ No 1154; Gulishvili v Canada (Minister of Citizenship and
Immigration), 2002 FCT 1200, [2002] FCJ No 1667, and Shirwa v Canada
(Minister of Employment and Immigration) (TD), [1993] FCJ No 1345 at paras
60-64, [1994] 2 FC 51).
[24]
In the case of GDB, above, the Supreme Court
of Canada outlined the following:
[27] Incompetence is determined by a
reasonableness standard. The analysis proceeds upon a strong presumption that
counsel's conduct fell within the wide range of reasonable professional
assistance. The onus is on the appellant to establish the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional
judgment. …
[25]
Moreover,
the comments of Justice De Montigny in the case of Bedoya v Canada (Minister of
Citizenship and Immigration), 2007 FC 505 at paras 18 – 20, [ 2007] FCJ No 680, are
apposite:
[18] This Court has made it
clear that a party should not be allowed to raise the incompetence of his
lawyer unless that lawyer has had an opportunity to explain his conduct, or
without evidence that the matter has been referred to the governing body for
investigation: see, for example, Nunez v. Canada (Minister of Citizenship
and Immigration), (F.C.T.D.); Sathasivam v. Canada (Minister of
Citizenship and Immigration), Kizil v. Canada (Minister of Citizenship
and Immigration), Gonzalez v. Canada (Minister of Citizenship and
Immigration). As mentioned, this requirement has been met in the present
instance.
[19] The standard for this
Court to conclude that the lawyer's incompetence was so severe as to amount to
a breach of natural justice is very high, as we can see from the following
extract of Shirwa v. Canada (Minister of Employment and Immigration)
(F.C.T.D.) at paragraphs 11 and 12:
In a situation where
through no fault of the applicant the effect of counsel's misconduct is to
completely deny the applicant the opportunity of a hearing, a reviewable breach
of fundamental justice has occurred ...
In other circumstances
where a hearing does occur, the decision can only be reviewed in "extraordinary
circumstances", where there is sufficient evidence to establish the
"exact dimensions of the problem" and where the review is based on a
"precise factual foundation." These latter limitations are necessary,
in my opinion, to heed the concerns expressed by Justices MacGuigan and
Rothstein that general dissatisfaction with the quality of representation
freely chosen by the applicant should not provide grounds for judicial review
of a negative decision. However, where the incompetence or negligence of the
applicant's representative is sufficiently specific and clearly supported by
the evidence such negligence or incompetence is inherently prejudicial to the
applicant and will warrant overturning the decision, notwithstanding the lack
of bad faith or absence of a failure to do anything on the part of the
tribunal.
[20] In addition, the
applicants must show that there is a reasonable probability that but for this
alleged incompetence, the result of the original hearing would have been
different: Shirvan v. Canada (Minister of Citizenship and Immigration), Jeffrey v. Canada
(Minister of Citizenship and Immigration), Olia v. Canada (Minister of
Citizenship and Immigration).
[26]
The
Board noted in its decision that the applicant’s credibility had been compromised
due to key omissions in his PIF and the lack of corroborating documentation.
There is no factual basis for the Court to agree with the applicant and find
incompetence of counsel for the reasons that follow.
[27]
A
review of the documentary materials demonstrates the following:
·
The
applicant chose not to modify or correct his PIF during his interview prior to
the hearing before the Board (Tribunal Record, p. 100);
·
At the
hearing the Board gave the applicant the opportunity to file his documents
though they were late (Tribunal Record, p. 176);
·
The Board
invited the applicant to make corrections to his PIF at the beginning of the
hearing and amendments to the transcript were accepted by the Board (Tribunal
Record, pp. 189-193);
·
The
applicant was provided with an opportunity to mention to the Board the
existence of the document but failed to do so (Tribunal Record, pp. 205-207).
[28]
Consequently,
the Court finds that the applicant had ample time to correct or modify the
omissions in his PIF and submit his documentation, which he failed to do. Thus,
in light of the comments above, the Court concludes that the applicant has
failed to demonstrate that, but for his former counsel’s incompetence, the
result of the hearing would have been different.
[29]
In
the present case, the Board noted that the applicant’s credibility had been
compromised due to key omissions in his PIF and his Port of Entry (POE) and the
applicant also failed to show corroborating evidence (Tribunal Record, pp.
201-208, 213, and 218). Moreover, the applicant admitted that he took no steps
to obtain such documentation in support of his claim (Tribunal’s decision,
paras 13 and 14). Also, (i) the applicant’s PIF is written in English, (ii) question
31 of the PIF is a clear question and, (iii) the evidence does not demonstrate
that the applicant does not understand English. Thus, the applicant’s failure
to mention the legal proceedings/denunciation that were instituted
following his father’s death was not insignificant, as the applicant affirmed
that he feared returning to Colombia as he would face persecution in light of
this action.
[30]
Although
the applicant attests in his affidavit (para 17) that he made a complaint to
the Barreau du Québec concerning his former counsel, no convincing evidence was
adduced that such a complaint has been made or that the applicant’s counsel has
been held professionally liable. In sum, the applicant’s allegations are not
supported by the evidence.
[31]
Finally,
the applicant argued that the decision in El Kaissi v Canada (Minister
of Citizenship and Immigration), 2011 FC 1234,
[2011] FCJ No 1518, in which Justice Near found that a breach of procedural
fairness had occurred, had a similar factual background and thus applied in
this case. However, the Court does not agree with the applicant as the present
case is clearly distinguishable. It is worthy of note that Justice Near
emphasized that “extraordinary circumstances” arose in El Kaissi. More
particularly, in El Kaissi, the evidence demonstrated that counsel for
the applicant was in possession of evidence (a letter) which he failed to
produce. No evidence to that effect was adduced before the Court. As such, the El
Kaissi case does not apply to the case at bar.
[32]
For
all of the above reasons, the Court concludes that the applicant has not
demonstrated that a breach of procedural fairness occurred in the present case.
The application for judicial review will be
dismissed.
[33]
As
neither party has proposed a question for certification, none will be
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed;
2.
There
is no question for certification.
“Richard
Boivin”
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