Date: 20120605
Docket: IMM-6651-11
Citation: 2012 FC 687
Ottawa, Ontario, June 5, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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KI IL KIM AND SU MIN LEE
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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
I. Introduction
[1]
It
is an extraordinary circumstance with the onus on an applicant to establish
that the incompetence of counsel would have caused a breach of procedural
fairness. The Supreme Court of Canada held: (1) it must be established that the
counsel’s acts or omissions constitute incompetence; (2) that a miscarriage of
justice resulted. The Supreme Court also determined that the burden is on the
applicant to establish that the alleged facts or omissions of counsel result in
incompetence. Also duly noted was that “the wisdom of hindsight has no place in
the above assessment” (R v G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 at paras
27-29).
II. Judicial Procedure
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of an Immigration
Officer decision, dated August 3, 2011, denying the Applicants’ application for
an exemption, on humanitarian and compassionate [H&C] grounds, to apply for
permanent residence from within Canada.
III. Background
[3]
The Applicants, Mr. Kil
Il Kim, and his wife, Mrs.
Su Min Lee, are citizens of South Korea. They entered Canada on
July 10, 2003, as students. They have two Canadian-born children aged 5 and 2
years.
[4]
On
August 1, 2007, the Applicants claimed refugee protection which was denied on
June 25, 2010. They did not seek judicial review of that decision.
[5]
An
immigration consultant represented them on their H&C application.
IV. Decision under Review
[6]
The
officer summarized the decision of the Refugee Protection Division [RPD]. Mrs. Su Min Lee, alleged, at the time,
that she was raped by her male colleague in South Korea. As a result, she had
an abortion. Her husband was beaten by gangsters sent by the rapist and spent
three months in the hospital. The rapist kept threatening to kill them, until
2003, when they fled to Canada.
[7]
Analyzing
the country conditions documentation and the evidence presented by their
immigration consultant, the officer found that state protection is available
for the Applicants, and that they will not suffer an unusual or
disproportionate hardship.
[8]
With
respect to the Applicants’ establishment, the officer examined their evidence
and noted that they did not submit any information to demonstrate how they
support themselves financially. The officer noted that the Applicants did not
provide any proof of ownership or federal income tax. The officer, therefore,
concluded that the Applicants had not demonstrated that they were established
in Canada to the point that their removal amounted to a disproportionate
hardship.
[9]
Considering
the best interests of the Applicants’ children, the officer relied on the
immigration consultant’s submissions to the effect that the future of the children
“will not be good” and on the country conditions documentary evidence (H&C
Decision at p 4) to conclude that they would not be affected if they were to
return to South Korea.
[10]
The
officer finally concluded that the fact that Canada is a better country in
which to live is not sufficient to warrant the H&C application.
IV. Issue
[11]
Did
the conduct of the Applicants’ previous consultant result in a breach of
natural justice?
V. Position of the Parties
[12]
The
Applicants submit that the misconduct of their previous counsel, an immigration
consultant, led to the refusal of their H&C decision. They argue that they
provided a folder of evidence to their consultant, including tax records and
documents regarding their business, which was not submitted to the officer.
They submit that this misconduct amounts to a breach of natural justice.
[13]
They
also argue that the consultant failed to advise them of the relevant factors in
their H&C application. Had he advised them, they would have presented
evidence to demonstrate their establishment.
VI. Analysis
[14]
Issues
involving procedural fairness and natural justice are reviewable on a standard
of correctness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[15]
In R
v G.D.B., above, the Supreme Court stated:
26
The approach to an ineffectiveness claim is explained in Strickland
v. Washington, 466 U.S. 668 (1984), per O’Connor J. The reasons contain a
performance component and a prejudice component. For an appeal to succeed, it
must be established, first, that counsel’s acts or omissions constituted
incompetence and second, that a miscarriage of justice resulted.
[16]
This
Court explained the principle in these terms in Memari v Canada (Minister of
Citizenship and Immigration), 2010 FC 1196, 378 FTR 206:
[36] However,
in proceedings under the IRPA, the incompetence of counsel will only constitute
a breach of natural justice in “extraordinary circumstances” (Huynh v.
Minister of Employment and Immigration (1993), 65 F.T.R. 11 at 15 (T.D.)).
With respect to the performance component, at a minimum, “the incompetence or
negligence of the applicant’s representative [must be] sufficiently specific
and clearly supported by the evidence” (Shirwa, above, at 60). With
respect to the prejudice component, the Court must be satisfied that a
miscarriage of justice resulted. Consistent with the extraordinary nature of
this ground of challenge, the performance component must be exceptional and the
miscarriage of justice component must be manifested in procedural unfairness,
the reliability of the trial result having been compromised, or another readily
apparent form.
(Reference is also made to T.K.M. v Canada
(Minister of Citizenship and Immigration), 2011 FC 927).
[17]
This Court must determine
if the consultant’s conduct amounts to incompetence. The Applicants have filed
a complaint against their former consultant to the Canadian Society of
Immigration Consultants [CSIC] but no affidavit was submitted in support of
this; consequently, this Court must be prudent in its analysis of the consultant’s
conduct.
[18]
The
Certified Tribunal Record [CTR] does not contain documents relating to the
financial establishment of the Applicants. More specifically, the Applicants
refer to different documents such as tax records, a T4 summary of remuneration
paid to their employee, balance sheets and income statements regarding their
business. These important documents were not submitted to the officer.
[19]
Furthermore,
the consultant’s written submissions with respect to the Applicants’
establishment in Canada were limited, and drew attention to their social life
rather than their economic establishment:
[20]
Mr.
Kim has socially and culturally established in Canada in a significant degree.
He has steady work record and he has the ability to maintain working. Mr.
Kim is working as a manager for a company owned by him and his partner Mr. Go,
Kyung Won. Moreover, Mr. Kim has strong ties in Canada. He has
been living in Toronto for a long time and he has made many friends. He and his
wife attend a Christian church on a regular basis. His activities show that he
and his family have deeply rooted in Canadian society. They love Canadian way
of life and consider Canada their home. Furthermore, they have good civil
records in Canada as they always comply with Canadian laws.
(CTR at p 29).
[21]
This
general assertion highlights the fact that the consultant overlooked, in his
preparation of the file, the financial aspect of the Applicants’ situation. For
these reasons, the consultant’s conduct amounts to incompetence.
[22]
The
second part of the test described above consists of determining whether the
consultant’s incompetence amounts to a miscarriage of justice.
[23]
In
this case, a simple reading of the decision reveals that the officer deplores
the lack of evidence:
..
Information has not been provided to indicate how the applicants managed to
support themselves in Canada during this period.
…
I note that the MA has not provided bank account statements, or information
from an accountant to indicate that worth of the company, the number of employees
aside from the MA and his friend, if any, and any projections for the success
of the company in the future.
The
applicants have not provided information to indicate what if any savings or
investments they may have in Canada, or proof of ownership in Canada aside from
the business. The applicants have also not provided documentation to
indicate the filing of federal income taxes since their arrival in Canada in
2003. Again, it is unclear how the applicants manage to support themselves and
their two children in Canada.
The
MA has also provided no information to indicate an involvement in their
community in Canada through volunteerism or some other activity…
…
…
I recognize that leaving Canada after more than eight years may be difficult;
however, the evidence before me does not support that the applicants have
become established in Canada to the extent that severing their ties here
amounts to an unusual and undeserved, or disproportionate hardship. [Emphasis
added].
(H&C Decision at pp 4-5).
[24]
In
this particular context, where the officer specifically refers to the lack of
evidence,
and where the submissions by the consultant are limited, this Court concludes
that the failure to submit evidence causes a prejudice to the Applicants
amounting to a miscarriage of justice.
VII. Conclusion
[25]
For
all of the above reasons, the Applicants’ application for judicial
review is granted and the matter is remitted for redetermination by a different
Immigration Officer.
[26]
Given
the particular circumstances of this case and the fact that an applicant’s
financial situation is not the only aspect of an H&C application, this
Court’s conclusion does not necessarily mean that a reconsideration will result
in a positive decision.
JUDGMENT
THIS COURT
ORDERS that the Applicants’ application for
judicial review be granted and the matter be remitted for redetermination by a
different Immigration Officer. No question of general importance for certification.
“Michel
M.J. Shore”
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