Date:
20121108
Docket:
IMM-3364-12
Citation:
2012 FC 1305
Ottawa, Ontario,
November 8, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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DONAVAN DERRICK BROWN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
a Senior Immigration Officer (Officer), dated 24 February 2012 (Decision),
which refused the Applicant’s application for a Pre-Removal Risk Assessment
(PRRA).
BACKGROUND
[2]
The
Applicant is a 36-year-old man from Jamaica. The first time he came to Canada was in 2008, as a Farm Worker on a Temporary Foreign Worker program. He returned to Jamaica in 2008 once the season was over. The Applicant came back to Canada in 2009 on the same type of visa. This time, he stayed in Canada once his visa
expired. Based on his overstay, the Applicant was barred from making a refugee
claim. He applied for a PRRA on 30 November 2011 on the basis that he is
bisexual and risks serious harm if returned to Jamaica.
[3]
To
help him prepare his PRRA, as well as an In-Canada Spousal Sponsorship
application (which is still underway), the Applicant hired Mr. Vernal Pinnock.
Mr. Pinnock is an immigration consultant and member of the Immigration
Consultants Regulatory Council of Canada (ICCRC). The Applicant says that Mr.
Pinnock had him sign blank PRRA forms, and that he only spoke to Mr. Pinnock
for 20-25 minutes on the phone before submitting the PRRA. The Applicant also
claims that when he asked Mr. Pinnock if he needed to gather any supporting
documents, Mr. Pinnock told him that none would be necessary.
[4]
The
Applicant filed a complaint to the ICCRC against Mr. Pinnock on 12 April 2012.
A Further Affidavit of Kathryn Lynch was filed on 20 August 2012 detailing this
complaint. On 11 May 2012, ICCRC wrote to the Applicant requesting further
details about his complaint. The Applicant replied on 11 June 2012. On 14 June
2012, ICCRC wrote to Mr. Pinnock advising him of the complaint. On 17 August
2012, ICCRC informed the Applicant that the complaint had been closed because
the Applicant was “unable to corroborate [his] allegations.” The Applicant was
informed by way of email on 20 August 2012 that he would be unable to see Mr.
Pinnock’s reply because the matter was confidential. The Applicant also
submitted a letter to Citizenship and Immigration Canada (CIC) on 30 May 2012
advising them of the complaint against Mr. Pinnock, and asking them to replace
his existing Sponsorship Application with new sponsorship forms and supporting
evidence.
[5]
The
Applicant’s PRRA includes the requisite forms, an unsworn letter from the
Applicant, and a letter from Mr. Pinnock. The Certified Tribunal Record (CTR)
includes a 2011 United States Department of State Country Report on Jamaica,
which the Applicant says in his Memorandum of Argument was not submitted by Mr.
Pinnock. The portion of the Department of State Report relevant to the
Applicant is found on pages 44-45 of the CTR. It details many incidences of
violence against homosexuals in Jamaica, including some perpetrated by the
police. The document states that conditions in Jamaica are such that homosexual
people suffer prejudice and are offered little to no protection by the state.
[6]
The
unsworn letter from the Applicant is found on page 15 of the CTR. In it, the
Applicant states that he is bisexual and that in Jamaica homosexuals are
targeted by the general population, as well as the police. The letter states
that the Applicant was in a secret same-sex relationship for a number of years,
but in 2007 he was caught on a beach with his partner and they were beaten up
and threatened. In the Applicant’s Affidavit submitted in support of this
Application (pages 11-26 of the Application Record), the Applicant states that
the incident on the beach never happened, and it was made up by Mr. Pinnock.
[7]
The
Applicant’s letter goes on to say that while he was working in Canada in 2008, his partner was shot and killed. When the 2008 season was over he returned
to Jamaica. The Applicant states that in December 2008, he was shot at by two
men, and then he stayed underground until coming back to Canada in 2009. The Applicant says he went to the police in Simcoe, Ontario, to tell them his story
while working in the summer of 2009 and was told that an officer would come to
see him within 4 days, but no one ever showed up. He says that soon after this
some of the other Jamaicans in his bunk started teasing him and leaving notes
about how homosexuals have AIDS and must die. The Applicant says he started
staying away from his job for days at a time, and eventually stopped going
altogether. He states that he regrets not making a refugee claim earlier, but
cannot go back to Jamaica because he fears he will be killed.
[8]
The
letter from Mr. Pinnock included with the PRRA application is found on pages
22-23 of the CTR. It states that there “is no way of showing new evidence” and
that the Applicant is “relying on the nature of the harm.” No other evidence
was included, and a hearing was not conducted. The Officer rejected the
Applicant’s PRRA application on 24 February 2012.
DECISION
UNDER REVIEW
[9]
The
Decision in this case consists of a letter the Officer sent the Applicant on 24
February 2012, along with the Officer’s notes on the file. The Officer rejected
the PRRA application because she determined the Applicant had provided
insufficient evidence to establish the risk asserted.
[10]
The
Officer started her Decision by reviewing the events described by the Applicant
in his letter. She then stated that the Applicant had not provided sufficient
evidence to establish his claim, nor did it appear he made any efforts to do
so. The Officer found it unreasonable that the Applicant had not provided more
detailed information on:
•
His
homosexual relationship and partner;
•
How
and why his partner was killed in Jamaica, and specifically what this had to do
with his partner’s sexual orientation;
•
The
2007 beating and 2008 shooting: whom he thinks may be responsible, how they are
connected to his sexual orientation, and whether the two incidences are
connected;
•
Why
he felt he could not approach the police to report the shooting;
•
The
report filed with the Canadian police in Simcoe.
[11]
The
Officer stated that in assessing the Applicant’s overall statements she found
it unreasonable that he did not make a refugee claim while on a valid work
permit, and even more unreasonable that he did not submit any supporting
documentation whatsoever. The Officer found the Applicant had provided
insufficient evidence to establish the risk alleged, and though conditions may
be unfavourable for bisexuals in Jamaica, the Applicant had not established a
risk against which to weigh these conditions. The Officer found the Applicant
did not face a risk as described in section 96 or 97 of the Act, and rejected
his PRRA application.
ISSUES
[12]
The
Applicant raises the following issues:
1)
Did
the Officer err by failing to make an adverse credibility finding against the
Applicant, and then failing to conduct an analysis of the risk of returning a
bisexual man to Jamaica?
2)
Was
the Applicant denied a fair hearing due to the incompetence of Mr. Pinnock?
STANDARD
OF REVIEW
[13]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis.
[14]
The
first issue goes to the Officer’s evaluation of evidence and credibility in
regards to the PRRA. In Hnatusko v Canada (Minister of Citizenship and
Immigration), 2010 FC 18 at paragraph 25, Justice John O’Keefe held
the standard of review applicable to a PRRA Officer’s decision is
reasonableness. Justice Maurice Lagacé made a similar finding in Chokheli v
Canada (Minister of Citizenship and Immigration), 2009 FC 35 at paragraph
7, as did Justice André Scott in Ahmad v Canada (Minister of Citizenship and
Immigration), 2012 FC 89 at paragraph 19. The Applicant agrees, at
paragraph 18 of the Applicant’s Memorandum of Argument, that the standard of
review applicable to the first issue is reasonableness.
[15]
Although not presented as a separate issue, the Applicant argues
at page 187 of the Applicant’s Memorandum of Argument that the Officer used the
excuse of “insufficiency of evidence” to avoid holding an oral hearing in
accordance with subsection 113(b) of the Act and section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Views
have differed in the Federal Court as to whether the core of the issue is
procedural fairness (see Prieto v Canada (Minister of
Citizenship and Immigration), 2010 FC 253; Sen v
Canada (Minister of Citizenship and Immigration), 2006 FC 1435) or an
evaluation of facts requiring deference (see Puerta v
Canada (Citizenship and Immigration), 2010 FC 464; Marte
v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC
930). Justice
Judith Snider dealt with this issue in Mosavat v Canada (Minister of
Citizenship and Immigration), 2011 FC 647, where she said at
paragraph 9:
In my view, the applicable standard of review is reasonableness.
The Officer's task is to analyze the appropriateness of holding a hearing in
light of the particular context of a file and to apply the facts at issue to
the factors set out in s.167 of the Regulations. Thus, the question is one of
mixed fact and law. As the Supreme Court held at paragraph 53 of Dunsmuir v New Brunswick, 2008 SCC 9, questions of mixed
fact and law attract deference and are reviewable on the reasonableness
standard.
This
was cited with approval by Justice Roger Hughes in Rajagopal v Canada (Minister of Citizenship and Immigration), 2011 FC 1277 [Rajagopal] and Justice
Yves de Montigny in Adetunji v Canada (Minister of Citizenship and
Immigration), 2012 FC 708. The Applicant seems to agree; he included his
arguments in regards to the oral hearing as part of the first issue dealing
with credibility, and advanced Justice Hughes’ decision in Rajagopal in
support of his case. Thus, this issue will be reviewed on a standard of
reasonableness.
[16]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
[17]
The
second issue goes to the Applicant’s right to fully present his case, which is
an issue of procedural fairness (see Xu v Canada (Minister of Citizenship
and Immigration), 2006 FC 718, Baker v Canada (Minister of Citizenship
and Immigration, [1999] 2 SCR 817 [Baker] at paragraph
22). In Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour), 2003 SCC 29, the Supreme Court of Canada held at paragraph
100 that it “is for the courts, not the Minister, to provide the legal answer
to procedural fairness questions.” Further, the Federal Court of
Appeal in Sketchley v Canada (Attorney General), 2005 FCA 404 at
paragraph 53 held that the “procedural fairness element is reviewed
as a question of law. No deference is due. The decision-maker has either
complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The Respondents agree
that the standard of review applicable to the second issue is correctness.
STATUTORY PROVISIONS
[18]
The
following provisions of the Act are applicable in this proceeding:
Convention refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political
opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries;
[…]
Person in Need of Protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care
[…]
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in
accordance
with the regulations, apply to the Minister for protection if they are
subject to a removal order that is in force or are named in a certificate
described in subsection 77(1).
[…]
113. Consideration of
an application for protection
shall
be as follows:
[…]
(b) a
hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
[…]
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social
ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
[…]
Personne à
protéger
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
[…]
112. (1) La personne se
trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut,
conformément aux règlements, demander la protection au ministre si elle est
visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé
au paragraphe 77(1).
[…]
113. Il est disposé de
la demande comme il suit:
[…]
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
[…]
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[19]
The
following provisions of the Regulations are applicable in this proceeding:
Hearing
– prescribed factors
167. For the purpose of determining whether a
hearing is required under paragraph 113(b) of the Act, the factors
are the following:
(a) whether there is evidence that
raises a serious issue of the applicant's credibility and is related to the
factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central
to the decision with respect to the application for protection; and
(c) whether the evidence, if
accepted, would justify allowing the application for protection.
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Facteurs
pour la tenue d’une audience
167. Pour l’application de l’alinéa 113b)
de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience
est requise :
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97
de la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b) l’importance
de ces éléments de preuve pour la prise de la décision relative à la demande
de protection;
c) la
question de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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ARGUMENTS
The
Applicant
The
Officer’s Credibility and Risk Assessment
[20]
The
Applicant states that the Officer failed to make a credibility finding in
regards to the Applicant’s bisexuality, and then having not made a negative
credibility finding declined to conduct a state protection analysis. Even if
the Officer did not believe the details of the Applicant’s story, she did not
specifically dispute his sexual orientation. The Applicant submits that his
undisputed membership in this group – bisexual men – is enough to ground
refugee protection under s. 97 of the Act based on the risks associated with
returning a member of this group to Jamaica.
[21]
The
Applicant points out that the word “credibility” does not specifically appear
anywhere in the Decision. The Applicant characterizes the Officer’s complaint
as a lack of detail or corroborating proof of the events recounted in the PRRA,
but argues that even if the Officer discounted all these events it was still
possible to find that he is bisexual. The Applicant argues that though the
Officer rejected the PRRA on the basis that the Applicant failed to provide
sufficient evidence to corroborate the stories in his claim, this does not mean
the Officer made a credibility finding in regards to the Applicant’s
bisexuality.
[22]
The
Applicant’s sexual orientation is the core of the claim, and as Justice Sean Harrington
stated in John Doe 2004 v Canada (Minister of Citizenship and Immigration),
2004 FC 360 at paragraph 13, in this situation the Officer has a duty to
identify adverse credibility findings in “clear and unmistakeable terms.” The
Officer failed to make any clear finding in regards to the Applicant’s
sexuality, and thus it must be concluded that she accepted that the Applicant
is bisexual. The Applicant contrasts this Decision to that in Ferguson
v Canada (Minister of Citizenship and Immigration), 2008 FC 1067 [Ferguson] at paragraph 6, where a “clear and unmistakable” finding was made when the
Officer stated “there is insufficient objective evidence before me to establish
that the applicant is, on the balance of probabilities, a lesbian.” No finding
of this nature was made; the Applicant’s statements in regards to his sexual
orientation were unchallenged by the Officer, and thus presumed to be true (see
Maldonado v Canada (Minister of Employment and Immigration), [1980]
2 FC 302 (CA) at paragraph 5).
[23]
The
Applicant submits that once it is established that he is a member of a group
whose members are, by sole virtue of their membership in the group, likely to
suffer persecution, a risk analysis must be conducted. This is because section
97 of the Act does not require a subjective basis for the fear. As demonstrated
by Odetoyinbo v Canada (Minister of Citizenship and Immigration), 2009
FC 501 [Odetoyinbo] at paragraphs 6-8, Alemu v Canada (Minister of
Citizenship and Immigration), 2004 FC 997 at paragraphs 45-46 [Alemu],
and Bastien v Canada (Minister of Citizenship and Immigration), 2008 FC
982 [Bastien] at paragraphs 8-12, notwithstanding negative credibility
findings in regards to events in the Applicant’s claim, if objective evidence
establishes that a certain group is at risk, and the Applicant is a member of
that group, then a claim will be made out under section 97. As Justice Luc
Martineau said at paragraph 8 of Odetoyinbo:
In the case at bar the Board did not explicitly state in its
reasons that it did not believe that the applicant was bisexual. Accordingly,
it could not ignore compelling objective evidence on record demonstrating the
abuses which gay men are subjected to in Nigeria. Therefore, even if the Board
rejected the applicant’s account of what happened to him in Nigeria, it still
had a duty to consider whether the applicant’s sexual orientation would put him
personally at risk in his country.
This
point was also made in Alemu, where Justice Carolyn Layden-Stevenson
said at paragraph 45: “Whether or not an applicant was a credible witness does
not prevent him from being a refugee if his political opinions and activities
are likely to lead to his arrest and punishment.” The Applicant asserts that
the Officer had a duty to consider whether his bisexuality would put him
personally at risk if returned to Jamaica.
[24]
The
Applicant argues that there is clear evidence that bisexual men face
persecution in Jamaica. He submitted three documents in support of this risk as
part of this Application, including the US Department of State Report that
forms part of the CTR. The Applicant also states that the Officer had an
independent duty to consult publicly available resources concerning country
conditions (see Hassaballa v Canada (Minister of Citizenship and Immigration),
2007 FC 489; Jessamy v Canada (Minister of Citizenship and Immigration),
2009 FC 20; Lima v Canada (Minister of Citizenship and Immigration),
2008 FC 222). The Applicant concludes that the sum of the lack of an adverse
finding in regards to his bisexuality combined with general knowledge on
country conditions in Jamaica renders the Officer’s Decision unreasonable. The
failure of the Officer to conduct a risk analysis under section 97 was
erroneous, and the Decision ought to be quashed on this ground.
The Lack of an Oral Hearing
[25]
The
Applicant also states that it was unreasonable for the Officer not to hold an
oral hearing, as per subsection 113(b) of the Act and section 167 of the
Regulations. He says that the Officer used the finding of insufficient evidence
as an excuse to get around holding an oral hearing, a practice that was
condemned by Justice Roger Hughes in Uddin v Canada (Minister of Citizenship
and Immigration), 2011 FC 1289. Justice Hughes said at paragraph 3 of that
decision:
The Court is concerned about decisions of PRRA Officers in which
there is an endeavour to avoid the use of the word “credibility” in the hopes
of avoiding a hearing. The intent of IRPA, its Regulations
and attendant jurisprudence is clear; if credibility is an issue central to the
matter before the Board and likely to lead to a result unfavourable to the
applicant, a hearing should be held. It is not for a PRRA Officer to finesse
these requirements by endeavouring to couch what are, in reality, credibility
concerns, in language suggesting lack of evidence or contradictory evidence.
The Applicant
alleges that the Officer was engaging in this practice. In
cases where the risk is based on sexual orientation credibility will almost
always be an issue, and it was unreasonable for the Officer not to hold an oral
hearing.
[26]
The
Applicant submits that the Officer’s failure to conduct an oral hearing, as
well as her failure to conduct a risk and state protection analysis in light of
the Applicant’s unchallenged statement that he is bisexual, renders the
Decision unreasonable.
The Negligence of Mr. Pinnock
[27]
The
Applicant further submits that he did not have proper representation, and thus
he was unable to participate effectively in the determination of his PRRA (see Hillary
v Canada (Minister of Citizenship and Immigration), 2011 FCA 51 at
paragraph 34). The Applicant’s right to representation is essential to his
right to be heard, and is a fundamental principle of natural justice (Canada (Minister of Citizenship and Immigration) v Panahi-Dargahloo, 2010
FC 647 at paragraph 27). The Applicant submits that he was denied a fair
hearing due to the incompetence of his immigration consultant, and this amounts
to a breach of procedural fairness. Had he been properly represented he would
have included a detailed narrative like the one included with this application,
as well as other supporting materials.
[28]
The
Applicant states that he is an uneducated man from Jamaica, and cannot be
expected to know anything about Canada’s immigration system. He did not even
know the difference between criminal law and immigration law and this is why he
went to the local police station to try and make a refugee claim. Mr. Pinnock
approached the Applicant while he was in immigration detention and the Applicant
accepted his help. When Mr. Pinnock told the Applicant that he would take care
of everything in regards to the PRRA, the Applicant accepted it. Mr. Pinnock
was negligent in holding himself out to be a lawyer when he was not, in failing
to instruct the Applicant to obtain supporting documentation, in only speaking
with the Applicant briefly over the phone, and in not having the Applicant
review the PRRA before submitting it.
[29]
The
Applicant submits that the incompetence of Mr. Pinnock denied him a fair hearing.
In Shirwa v Canada (Minister of Employment and Immigration), [1994]
2 FC 51 [Shirwa], Justice Pierre Denault said at paragraph 12: “…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…” The Applicant lists numerous other cases that have
followed this reasoning. As established by Cove v Canada (Minister of
Citizenship and Immigration), 2001 FCT 266 (CA) [Cove], immigration consultants are held to the same standards as
counsel.
[30]
The Applicant submits there are three requirements that must be
met for negligence of counsel to establish a breach of procedural fairness (see
Memari v Canada (Minister of Citizenship and Immigration), 2010 FC 1196;
Shakiban v Canada (Minister of Citizenship and Immigration), 2009 FC
1177 [Shakiban]; Nizar v Canada (Minister of Citizenship and
Immigration), 2009 FC 557; Rodrigues v Canada (Minister of Citizenship
and Immigration), 2008 FC 77; Yang v Canada (Minister of Citizenship and
Immigration), 2008 FC 269 [Yang]; Bedoya v Canada (Minister of
Citizenship and Immigration), 2007 FC 505; M.R.A. v Canada
(Minister of Citizenship and Immigration), 2006 FC 207). The three
requirements are:
1.
The Applicant must establish actual incompetence based on a
“precise factual foundation” and sufficient evidence to establish the “exact
dimensions of the problem”;
2.
The Applicant must demonstrate that the incompetence resulted in
prejudice. That is, but for the alleged incompetence, the result of the
original hearing would have been different;
3.
The
Applicant must prove that his former counsel had an opportunity to respond to
the complaint, or the matter has been referred to the proper governing body.
[31]
The
Applicant submits that he has met all three prongs of the test. Firstly, Mr.
Pinnock’s conduct and the submitted PRRA establish the factual basis to
demonstrate incompetence. Specifically, Mr. Pinnock approached the Applicant’s
common-law wife while she was in an especially vulnerable state, he had the
Applicant sign a blank PRRA form, he told the Applicant supporting
documentation was not needed, he enclosed a cover letter with the PRRA
mistakenly inferring that a refugee claim was made, he failed to include
readily available corroborating evidence, he only ever contacted the Applicant
for approximately 20 minutes on the phone, and he never showed the Applicant a
copy of the completed PRRA before submitting it. Considered as a whole, these
incidences meet the first requirement.
[32]
In
regards to the second requirement, the Applicant submits that the Officer
rejected the PRRA based on insufficiency of evidence, and this insufficiency
was caused by Mr. Pinnock’s negligence. The PRRA was rejected before even
evaluating the Applicant’s credibility. The Officer listed specific things she
found lacking in the PRRA application, and these insufficiencies would have
been addressed had the Applicant had proper representation. It would have been
easy for Mr. Pinnock to include things such as an affidavit by the Applicant,
police reports, affidavits by people who knew about the Applicant’s
bisexuality, and photos of the Applicant’s scars from an anti-gay attack. An
affidavit by the Applicant providing many of the details mentioned by the
Officer has been included with this Application, as well as photos of his
scars, an affidavit from his common-law wife detailing the Applicant’s
bisexuality, and a copy of the report to the Simcoe police. The Applicant
points out that the last two documents listed are dated in 2009 – two years
before his PRRA application. But for Mr. Pinnock’s negligence in not including
these materials with the PRRA application, it is impossible to say whether the
Officer would have come to the same conclusion.
[33]
The
Applicant also points out that the Respondents have not challenged the
allegations of Mr. Pinnock’s negligence, though there were many opportunities
to do so. Affidavit evidence from Mr. Pinnock was not provided, nor was the
Applicant cross-examined on his affidavit. The Applicant has also filed a
formal complaint with the ICCRC. The Applicant requested a copy of Mr.
Pinnock’s reply to the complaints from ICCRC, but they would not provide it. The
details of this complaint were provided in the Further Affidavit of Kathryn
Lynch included with this Application, and are summarized above. Having met all
the branches of the test, the Applicant submits that he was denied his right to
procedural fairness, and the decision of the Officer ought to be quashed.
The Respondents
The Officer’s
Credibility and Risk Assessment
[34]
The
Respondents remind the Court that the onus is on the Applicant to provide
evidence in support of his PRRA Application. The Applicant provided virtually
no detail about every allegation he made; nor did he provide any supporting
documentation. The only thing before the Officer was the Applicant’s unsworn
statement, and it was reasonable for the Officer to afford little weight to it.
The Respondents cite Ferguson, above, at paragraph 32:
When, as here, the fact asserted is critical to the PRRA
application, it was open to the officer to require more evidence to satisfy the
legal burden. Had the statement been affirmed by the Applicant in a sworn
affidavit submitted with her application, it would have been deserving of
somewhat greater weight than it was given. Had it been supported by other
corroborative evidence such as evidence from her lesbian partner(s), public
statements, and the like, it would have attracted even more weight.
The
Respondents cite numerous cases that state that a written statement alone is
not sufficient to discharge the Applicant’s burden of proof in a PRRA
application: see Parchment v Canada (Minister of Citizenship and
Immigration), 2008 FC 1140; Buio v Canada (Minister of Citizenship and
Immigration), 2007 FC 157; Carrillo v Canada (Minister of Citizenship
and Immigration), 2008 FCA 94.
[35]
The
Respondents say that the Officer did make a finding in regards to the Applicant’s
sexual orientation, and that the Odetoyinbo decision relied on by the
Applicant can be distinguished from the one at hand. In Odetoyinbo,
there was an oral hearing and the Applicant gave “elaborate testimony” in
regards to his homosexuality, yet the Refugee Protection Division Panel was
“totally silent” on the issue. In the present case, the Officer was not silent
on the issue of the Applicant’s sexual orientation; she found that bisexual
people faced risks in Jamaica, but the Applicant had not proven that he would
face such a risk. In other words, the Officer found that the Applicant had not
proven that he is bisexual.
[36]
The
Respondents submit that the Applicant’s reliance on the decision in Bastien,
above, is
misplaced. In that case, the applicant was a member of a particular social
group and it was required that a risk assessment be conducted on this ground
despite credibility concerns. The present case is distinguishable because there
was insufficient evidence of the Applicant’s membership in a particular social
group before the Officer.
[37]
As
the Officer was unconvinced of any of the Applicant’s claims, she was not
obliged to conduct an analysis of the risks he would face if returned to Jamaica. This is supported by the Ferguson decision, at paragraph 6, where the
finding by the Officer that “Without sufficient evidence that the applicant is
a lesbian, an assessment of current country conditions does not establish that
she is personally at risk in Jamaica” was upheld. The Applicant did not meet
his burden of proof in this case, and there was nothing unreasonable about the
Officer’s decision.
The
Lack of an Oral Hearing
[38]
The
Respondents submit that considering the lack of evidence provided, it was open
for the Officer to decide there was no need to hold an oral hearing to
determine the issue of credibility. As stated by Justice Russel Zinn at
paragraph 26 of Ferguson: “It is open to the trier of
fact, in considering the evidence, to move immediately to an assessment of
weight or probative value without considering whether it is credible.” The
Officer gave little weight to the Applicant’s allegations of risk based on the
lack of detail and supporting documentation provided, and thus it was
unnecessary to assess the Applicant’s credibility.
[39]
The jurisprudence makes clear that Officers do not have a duty to
hold an oral hearing when sufficiency of evidence is the central issue; see Iboude
v Canada (Minister of Citizenship and Immigration), 2005 FC 1316 at
paragraph 14; Kazmi v Canada (Minister of Citizenship and Immigration),
2004 FC 1375 at paragraphs 9-11; Abdou v Canada (Solicitor General),
2004 FC 752 at paragraphs 3-8; Malhi v Canada (Minister of Citizenship
and Immigration), 2004 FC 802 at paragraphs 7-9; Kim v Canada
(Minister of Citizenship and Immigration), 2003 FCT 321 at paragraph
6. These cases establish that it is open to an Officer to determine there is
not enough objective evidence to justify holding an oral hearing.
[40]
The
Respondents point out that the Applicant has submitted additional evidence and
a detailed affidavit with this Application for Judicial Review, but the
reasonableness of the Officer’s decision must be assessed based on the limited
evidence that was before her at the time. The Respondents submit that the
Officer’s Decision fell within the range of possible acceptable outcomes, and
was reasonable.
The
Negligence of Mr. Pinnock
[41]
The
Respondents submit that the bar for demonstrating that the Applicant was denied
a fair hearing through the incompetence of his former counsel is very high. The
first part of the test in Shirwa, above, requires “…sufficient evidence
to establish the exact dimensions of the problem” so that the review is based
on a “precise factual foundation”.” See also Betesh v Canada (Minister of Citizenship and Immigration), 2008 FC 173 at paragraph 16. This sort
of evidence has not been adduced by the Applicant.
[42]
In
R v GDB, 2000 SCC 22 [GBD], the Supreme Court of Canada held at
paragraphs 27-29 that for incompetence of counsel to result in a breach of
procedural fairness an applicant must establish that: (1) counsel’s acts or
omissions constituted incompetence; and (2) a miscarriage of justice resulted
from the incompetence. The Court also stated that the onus is on the applicant
to establish both branches of the test, and “the wisdom of hindsight has no
place in this analysis.”
[43]
GBD
states
that there is a wide range of reasonable professional judgment, and the
Applicant bears a heavy onus in establishing misconduct. The brevity of the
PRRA application does not render Mr. Pinnock incompetent. As stated in Cove,
above, at paragraphs 5-6, applicants are bound by their choice of
counsel. If the Applicant chooses to hire an immigration consultant rather than
a member of the immigration bar, he has to deal with the consequences. In the
same vein, the Applicant is also responsible for the choices he made in dealing
with his counsel.
[44]
The
Applicant is fluent in English and appeared in person to obtain his PRRA
application, so he should have known the importance of looking it over before
it was submitted. It is reasonable to expect the Applicant to have made more of
an effort to ensure his complete story was put forward to the Officer. The
Applicant did not act diligently in this regard, and he must bear the
responsibility for not acting when he found Mr. Pinnock’s actions troubling.
[45]
The
Respondents also point out that though the Applicant has now submitted some of
the missing details in support of his story as part of this Application, he has
still not provided some of the evidence which the Officer noted was missing.
For example, the Applicant has still not provided letters from anyone who knew
of his bisexuality in Jamaica, or the incident of shots being fired at him.
There remains a serious lack of supporting evidence that the Applicant is
bisexual. The Applicant has not demonstrated that had he provided the Officer
with the details and documents provided in this Application, the Officer’s
determination would have been different (see Shirvan v Canada (Minister of
Citizenship and Immigration), 2005 FC 1509).
[46]
As
the Supreme Court of Canada said in GDB, complaints about counsel are
best dealt with by the appropriate governing body. The Applicant has filed a
complaint with ICCRC, and thus has a forum to address his concerns. The Respondents
point out that the Affidavit of Kathryn Lynch states that Mr. Pinnock did
respond to the Applicant’s complaint, but the ICCRC found that the Applicant
was unable to corroborate his allegations. This constitutes evidence that Mr.
Pinnock was not incompetent. The test from Shirwa is conjunctive, and
the Applicant has not met all three branches. The Respondents submit that there
has not been a breach of procedural fairness in this case.
The
Applicant’s Reply
The
Officer’s Assessment of the Applicant’s Sexual Orientation
[47]
The
Applicant further states that the Respondents’ arguments are contradictory: on
the one hand the Officer was entitled to dismiss the PRRA application based
entirely on insufficiency of evidence, but on the other hand Mr. Pinnock did an
adequate job of preparing the materials to be submitted with the PRRA. The
Applicant submits that both statements cannot be true.
[48]
The
Applicant reiterates the Odetoyinbo decision, and states that when
country conditions such as those in Jamaica are established, it is mandatory
that an Officer make a clear and unambiguous finding as to his sexual
orientation. There is no such finding in this Decision; the Officer simply went
from finding there was insufficient evidence to corroborate the events in the Applicant’s
letter to dismissing the application. The Officer did not even state that she
was declining to make a finding due to insufficient evidence. The Respondents
are asking the Court to infer what the Officer concluded, and this is
inappropriate. The Applicant says that the Respondents’ reliance on the Ferguson
case is misplaced because in that case the officer clearly stated there was
insufficient evidence to establish the Applicant’s sexual orientation, not just
the events leading up to the application. The Officer failed to conduct an
essential step in the PRRA analysis and this renders the Decision unreasonable.
[49]
The
Applicant points out an additional deficiency in the Officer’s analysis. It has
been recognized by the Court that it can be difficult to prove sexual
orientation based on the inherently private nature of the activities involved,
and the Officer ought to have been alive to this issue (see Ogunrinde v
Canada (Minister of Public Safety and Emergency Preparedness), 2012
FC 760). As stated at paragraph 42 of that decision: “When evaluating claims
based on sexual orientation, officers must be mindful of the inherent
difficulties in proving that a claimant has engaged in any particular sexual
activities.”
[50]
In
regards to Mr. Pinnock’s incompetence, the Applicant points to the decision in Shakiban,
above, that establishes that it is either notice to counsel or
a complaint to the appropriate governing body that is required. The same
conclusion was reached in MAC v Canada (Minister of Citizenship and
Immigration), 2009 FC 1174, where Justice Michael Kelen said at paragraph
32: “the requirement to give of notice will be satisfied either when the
applicants makes a complaint to a governing body, in that case the Canadian
Society of Immigration Consultants (CSIC), or when the applicants provide
evidence that their consultant was informed of the allegations against them.” The Applicant points to the Further Affidavit submitted with this
Application that confirms that this requirement was met.
[51]
The
Applicant argues that it is unfair to expect a Jamaican man without a high
school education or any knowledge of Canada’s immigration system to disregard
the explicit advice given to him by his immigration consultant. If the
Applicant were capable of spotting and dealing with the negligent actions of
his counsel he would not need counsel in the first place. Mr. Pinnock was a
member of the body (the ICCRC) created to regulate immigration consultants, and
it was reasonable for the Applicant to rely on this fact as assurance that Mr.
Pinnock was properly qualified to give him advice. Mr. Pinnock acted in an
incompetent and negligent manner, and the Applicant is entitled to relief in
this regard. The Applicant asks that the Decision be quashed and returned for
review by another Officer.
ANALYSIS
[52]
It
is my view that the procedural fairness issue is decisive in this case.
[53]
I
see no disagreement between the parties concerning the legal test and
principles that I must apply.
[54]
As
pointed out by the Respondents, the Applicant is required to submit very clear
proof in this matter. According to Shirwa, above, at para 12, a 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.’”
[55]
In
order to establish that the incompetence of one’s counsel resulted in a breach
of procedural fairness, the Supreme Court of Canada in GDB, above, at
paras 27-29, held that (1) , it must be established that counsel’s acts or
omissions constituted incompetence; and (2) the Applicant must
demonstrate that a miscarriage of justice has resulted. The Supreme Court of
Canada also confirmed that the onus is on an applicant to establish the acts or
omissions of counsel that are alleged to have been incompetent and “the wisdom
of hindsight has no place in this assessment.”
[56]
In
proceedings under the Immigration and Refugee Protection Act, the
incompetence of counsel will only constitute a breach of natural justice in
“extraordinary circumstances.” 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. It must also
be exceptional and the miscarriage of justice component must be manifested in
procedural unfairness, the reliability of the trial results having been
compromised. In this regard, the Applicant must demonstrate that there is a
reasonable probability that the result would have been different but for the
incompetence of the representative.
[57]
However,
before examining allegations of incompetence, the Court must first
determine whether the Applicant has met the preliminary burden of giving notice
to his former immigration consultant of the allegations of incompetence and a
chance to respond.
[58]
At
the hearing of this matter, the Respondents conceded that the appropriate
notice and a chance to respond to the Applicant’s former immigration consultant
had been given in this case. I agree with that conclusion, and I will only
address the issues of incompetence and prejudice.
[59]
Essentially,
I am in agreement with the Applicant that the facts of the present case present
particularly egregious conduct by the immigration consultant that has led to a
breach of procedural fairness.
[60]
The
right of a refugee or PRRA claimant to be represented by competent counsel is a
principle of natural justice in and of itself. As early as Shirwa (1994)
— and affirmed many times since — this Court has held that “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.”
[61]
While
this jurisprudence has generally been developed in relation to incompetence of
lawyers, the Court has applied the same high standard to immigration
consultants despite their lesser training and qualifications. As stated by Justice
Pelletier in Cove, at para 10:
If individuals are going to hold themselves out as
skilled in immigration matters and, as is increasingly the case, adopt the
designation of counsel”, then they will be held to the same standard as those
who customarily appear before the Court. The consequences to their clients of
non-performance will be the same as it is for clients of the immigration bar.
There is no reason why the Court should shelter consultants from negligence
claims by overlooking their mistakes. Members of the immigration bar pay large
liability insurance premiums for coverage which is subject to being called upon
every time a court refuses to gloss over their mistakes. To apply a different
standard to consultants is to subsidize their competition with the immigration
bar.
[62]
The
Applicant submits that all of the requirements listed above have been made out
in his case. The Applicant lacks a high school education and has spent most of
his life doing agricultural work. He had little to no knowledge of the Canadian
immigration and refugee protection system. He placed enormous trust in Mr.
Pinnock to help guide him through the PRRA process – the one and only
opportunity he would have for a Canadian official to examine the risk he faces
in Jamaica. Mr. Pinnock abused that trust. There can be little doubt that his
conduct and performance in representing the Applicant in his PRRA fell far
below of the standards of mere professionalism. Indeed, they plummet into the
range of negligence and incompetence.
[63]
In
relation to the first requirement of the negligence test – the so-called
“performance branch” – the Applicant highlights the following negligent and/or
incompetent conduct by Mr. Pinnock:
•
When
the Applicant’s common-law spouse first met Mr. Pinnock, she was crying in the
waiting room of the Immigration Detention Centre in October 2011. Seeing she
was vulnerable, Mr. Pinnock approached her to ask if he could be of assistance.
After explaining the Applicant’s story, Mr. Pinnock said: “You’re going to need
a damn good lawyer to sort this out and I am your man.” Mr. Pinnock is not, and
never has been, a lawyer. The Applicant only learned that Mr. Pinnock is
actually an immigration consultant in April 2012 when he was told by CBSA
Officer Basra;
•
Through
his wife and fellow consultant, Donna Pinnock, Mr. Pinnock had the Applicant
sign blank PRRA forms at 6900 Airport Road so they would not have to actually
meet between the time when the PRRA was served on 16 November 2011 and when it
was filed on 30 November 2011;
•
Mr.
Pinnock only ever called the Applicant once – and only for a 20-25 minute
conversation – to advise him about the requirements of the PRRA and to elicit
his entire narrative. Indeed, during the course of their entire retainer,
neither the Applicant nor Mary Devos, the Applicant’s spouse, ever set foot in
Mr. Pinnock’s office. When the Applicant tried to provide details of his story
during their phone conversation, Mr. Pinnock would cut in, telling him not to
give so many details and to keep his story short;
•
When
the Applicant and Ms. Devos asked whether it was necessary to obtain supporting
documentation, they were specifically told by Mr. Pinnock that it was not.
Indeed, the Applicant and Ms. Devos personally called the OPP Simcoe detachment
to obtain a copy of the police report the Applicant made in the summer of 2009.
The detachment advised them it would take 30 days to obtain the record under
the Freedom of Information and Protection of Privacy Act – beyond the
deadline for filing the PRRA – but that a lawyer might be able to get it
sooner. When they asked Mr. Pinnock to make the request, he advised: “don’t
worry about it – you don’t need it. They will either believe your story or they
will not;”
•
Despite
rebuffing the Applicant’s request to obtain the OPP police report, Mr. Pinnock’s
cover letter enclosed with the PRRA states that “[t]here is no way of showing
evidence of new risks under the circumstances and therefore Mr. Brown is unable
to prove an argument to support a balance of probability.” The reference to
“new risks” mistakenly infers that subsection 113(a) of the IRPA applies, which
it does not, since the Applicant never made an IRB claim for refugee protection.
Moreover, the statement is incredibly negligent since Mr. Pinnock is
essentially inviting the Officer to reject the claim. More importantly,
however, the statement flatly contradicts the fact that corroborating evidence
like the OPP police report was readily available.;
•
Mr.
Pinnock never showed the Applicant a copy of the completed PRRA, specifically
the PRRA narrative, before he submitted it to CIC. In fact, the Applicant never
saw the package until April 2012 when his present counsel requested it from Mr.
Pinnock. When the Applicant reviewed it at that time, several glaring errors
were apparent. His siblings were not listed on the PRRA forms and, more
importantly, the PRRA narrative contained an incident that the Applicant never
described – an attack on him and his boyfriend on a beach in Jamaica in 2007. The Applicant points out that no person would be so foolish as to have
same-sex relations on a public beach in Jamaica. Mr. Pinnock appears to have added this incident himself – whether by mistake or for
embellishment is not known.
[64]
I
agree with the Applicant that this list of conduct makes it clear that Mr.
Pinnock lacked any degree of professionalism and competence when it came to
preparing the Applicant’s PRRA. The complaints are clear and precise. They
identify the “exact dimensions of the problem” and review the negligence on a “precise
factual foundation.”
[65]
The
Respondents have not challenged or contested the above-listed allegations of
negligence set out in the Applicant’s affidavit testimony.
[66]
I
also agree with the Applicant that Mr. Pinnock’ s misconduct meets the second
branch of the negligence test; namely, that there is a reasonable probability
that but for this alleged incompetence, the result of the original hearing
would have been different. As stated throughout, the Officer refused the PRRA
on the basis of insufficiency of evidence; there were no credibility findings
or state protection analysis. The Officer found that the Applicant had provided
insufficient details about certain aspects of his story and had failed to
provide corroborating proof of other aspects of his story. As stated by Officer
Mustaq,
I find it even more unreasonable that the applicant
has not provided any further evidence, beside his statements, of any of his
risks when he had ample time to do so by collecting a police record in Canada
or letters from anyone who of his bisexuality [sic] or about the incident of
shots being fired at him. These factors and the applicant’s overall lack of
details leads me to find that the applicant has provided insufficient evidence
to establish his risk.
[67]
In
terms of the details the Officer found lacking, they included: (i) who the
Applicant thinks shot at him in 2008 and how he knew it was related to his
sexuality; (ii) how or why his same-sex sexual partner was shot in 2008 and how
he knew it was related to his sexuality; and (iii) the name of his same-sex
sexual partner and the duration of the relationship.
[68]
These
insufficiency of evidence issues could have been addressed by Mr. Pinnock had
he demonstrated the professionalism to elicit a proper PRRA narrative and to do
the basic gathering of documents. The Applicant’s present counsel had less than
one month to prepare this application record and yet it contains within it
almost all of the information and/or documents that the Officer requested.
[69]
Mr.
Pinnock had ample time to obtain this simple evidence but he completely failed
to do so. As the Officer’s entire decision was based on the insufficiency of
evidence, there is more than a reasonable possibility that her decision would
have been different had she been presented with the evidence above.
[70]
In
bringing to the Court’s attention the high burden upon the Applicant in this
type of case, the Respondents draw the Court’s attention to the words of
Justice Danièle Tremblay-Lamer in Sedeh v Canada (Minister of Citizenship
and Immigration), 2012 FC 424:
42. In response to this submission, I adopt the
argument of the respondents, that the decisions in Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315, require that an applicant
be held responsible for the contents of an application which he or she has
signed.
43. Justice Mosley’s comments at paragraph 16 of Haque,
above, are instructive:
[16]
The applicant was in Bangladesh at the time the updated application was
submitted. He admitted during the phone conversation on May 26th that he “could
have signed the blank form for the consultant”. The new form had further
discrepancies. The applicant apparently chose to rely on the consultant to
submit the required information without personally verifying that it was
accurate.
The applicants in this case chose to rely on
their consultant. The principal applicant acknowledges having signed his
application. It would be contrary to the applicant's duty of candour to permit
the applicant to rely now on his failure to review his own application. It was
his responsibility to ensure his application was truthful and complete -- he
was negligent in performing this duty.
[71]
It
should not be forgotten, however, that the Sedeh case involved an application
for permanent residence by a physician. In the present case, we are dealing
with a PRRA application (there has been no RPD decision) by a farm worker who
does not have a complete high school education. The Applicant had no
familiarity with the PRRA process, and he was deliberately misled by someone
who claimed to be a qualified lawyer and who advised him that he did not need
to submit documentation that, as the Officer tells us in her Decision, was
needed to establish the Applicant’s case. The submission of the OPP report in
particular (its omission is specifically referred to in the Decision) could
well have made a difference to the Officer’s conclusions about insufficient
evidence.
[72]
On
the evidence before me in this application, the PRRA package submitted by the
consultant was woefully inadequate. Instead of obtaining relevant supporting
documentation he actually said that “there is no way of showing new evidence of
new risks under the circumstances and, therefore, Mr. Brown is unable to prove
an argument to support a balance of probability.” Here we have a consultant who
has represented himself to the Applicant as a lawyer, and who has ensured that
the Applicant has not had an opportunity to review the application, and who
tells the PRRA Officer that the Applicant does not have the evidence needed to
prove his case for protection. This goes well beyond incompetence and borders
on the bizarre.
[73]
The
Applicant is not entirely blameless. He should not have signed blank forms. But
I do not think it was unreasonable for someone with his education and lack of
familiarity with the PRRA system to follow the advice of someone who told him
he was a competent lawyer. The Applicant’s life may well be at risk in Jamaica and he has yet to have his case meaningfully assessed as a result of the egregious
incompetence of an immigration consultant. Quite apart from satisfying the
legal requirement, it is my view that not to allow the Applicant a fair chance
to have his case assessed would be offensive to Canadian values.
[74]
On
this ground alone, I think this matter has to be returned for reconsideration.
[75]
Counsel
agree that, as regards this issue, there is no question for certification and
the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James Russell”