Date: 20091118
Docket: IMM-1803-09
Citation: 2009 FC 1174
Ottawa, Ontario, November 18, 2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MELODY ANGEL CROMHOUT
JEFF COLYN CROMHOUT
ANGEL CROMHOUT
MARY CROMHOUT
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a Pre-Removal Risk Assessment (PRRA) Officer, dated March 10, 2009, denying the
applicants’ application for protection because they failed to their provide
sufficient evidence to demonstrate a fear of personalized risk.
FACTS
Background
[2]
The
applicants are citizens of South Africa. Forty-one (41) year
old Melody Angel Cromhout is the principal applicant. She is married to forty-five
year (45) year Jeff Colyn Cromhout, who is an applicant. Their children,
thirteen (13) year old Angel Cromhout and nine (9) year old Mary, are the minor
applicants.
[3]
The
applicant family entered Canada on March 8, 2004. The applicants claimed
refugee status over a year later on September 28, 2005. They failed to appear
for their refugee hearing in front of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board on October 16, 2007 and
the subsequent abandonment hearing on January 2, 2008.
[4]
The
applicants failed to appear for a pre-removal interview on April 28, 2008. The
applicants’ counsel was allegedly unlicensed and failed to inform the applicants’
of their appearance dates. A warrant was issued for the applicants’ arrest on
May 1, 2008 and executed upon the arrest of Ms. Cromhout on September11, 2008.
[5]
The
applicants filed two PRRAs on November 19, 2008, one for Ms. Cromhout and one
for Mr. Cromhout. Both included their dependent children in their applications.
[6]
Both
PRRAs were denied on March 10, 2009 in a single decision. The
applicant filed for leave to appeal the PRRA decision.
[7]
On
June 23, 2009 this Court stayed the execution of the deportation order. Leave
was granted by this Court on August 4, 2009.
Decision under review
[8]
The
applicants based their PRRAs on the Cromhout parents’ combined traumas in South Africa. These
traumas allegedly constituted “compelling reasons” per s. 108(4) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), which would justify an
exception from the requirement to prove future persecution.
[9]
Ms.
Cromhout’s application was based on her past physical and sexual abuse at the
hands of her father, and the failure of the South African state to protect her
as a child or as an adult. Ms. Cromhout’s counsel submitted that Ms. Cromhout’s
trauma informs her failure to appear before the Board once she became
disillusioned with her previous counsel’s incompetence. The PRRA officer was
asked to apply the doctrine of compelling reasons in light of Ms. Cromhout’s
history in South
Africa
and consider Ms. Cromhout’s failure to attend the refugee and abandonment Board
hearings with a view to the IRB Gender Guidelines.
[10]
Ms.
Cromhout submitted a lifetime chronology of incidents of abuse by her father
and the consequent failure of the state to offer protection or assistance. It
was submitted that incidents of abuse could reoccur should Ms. Cromhout return
to South
Africa.
Ms. Cromhout submitted that she lives in fear of her children ever living in
the same country as their grandfather.
[11]
Mr.
Cromhout’s application was based on the trauma he experienced from serving on
the South
Africa
Police force. Counsel at the hearing before the Court did not proceed with the
case on behalf of Mr. Cromhout because there was no evidence to find him in
need of protection.
[12]
The
officer accepted that Ms. Cromhout may have been abused in South Africa. The officer
concluded that the principal applicant failed to provide sufficient objective
evidence to support their fear of risk in South Africa.
[13]
The
PRRA officer held that the applicants failed to provide a reasonable
explanation for their failure to attend any of the hearings in front of the
Board. The PRRA officer found that the applicants could not impugn their
previous counsel’s competence without providing proof that the aforementioned
counsel was provided with notice of the allegations. The PRRA officer
considered the gender guidelines but found that they did not explain the
applicants’ failure to attend the Board hearings.
[14]
The
PRRA officer considered counsel’s submissions on the doctrine of compelling reasons
but determined that there was no evidence on the record to trigger the
application of s. 108(4) of IRPA given the failure of the applicant to submit
medical or psychological reports regarding her trauma.
[15]
The
officer further found that there was no evidence that the minor applicants, who
were 8 and 4 years old respectively when they came to Canada, had ever been
in contact with
Ms. Cromhout’s father or suffered abuse,
and would be at risk if returned to South Africa.
LEGISLATION
[16]
Section
96 of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.
27, confers protection upon persons who are Convention refugees:
|
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; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
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;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa
résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
[17]
Section
97 of IRPA confers protection to persons who may be at a personalized risk to
their life or to a risk of cruel and unusual punishment or at risk of torture:
|
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.
|
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.
|
[18]
Subsection
108(1)(e)
of IRPA states that a refugee or protection claim shall be rejected if the
reason which the claim was made has ceased to exist:
|
108. (1) A claim for refugee protection shall be rejected, and
a person is not a Convention refugee or a person in need of protection, in
any of the following circumstances:
…
(e) the reasons for which the person sought refugee
protection have ceased to exist.
|
108. (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne
à protéger dans tel des cas suivants :
…
e) les
raisons qui lui ont fait demander l’asile n’existent plus.
|
[19]
Subsection
108(4) of IRPA provides an exception to the general rule in s.108(1)(e) of
IRPA if the claimant establishes that there are compelling reasons arising out
of the claimant’s past experiences:
|
(4) Paragraph (1)(e) does not apply to a person who
establishes that there are compelling reasons arising out of previous
persecution, torture, treatment or punishment for refusing to
avail themselves of the protection of the country
which they left, or outside of which they remained, due
to such previous persecution, torture, treatment or punishment.
|
(4) L’alinéa (1)e)
ne s’applique pas si le demandeur
prouve qu’il y a des
raisons impérieuses, tenant à des persécutions, à la torture ou à
des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
|
[20]
Subsection
113(b) allows the Minister to hold a PRRA hearing:
|
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;
|
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;
|
[21]
Subsection
167 of the IRPR sets out the factors the Minister must consider before deciding
if a PRRA hearing is required:
|
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.
|
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.
|
ISSUES
[22]
The
applicant raises the following four issues:
a.
Is
there any evidence which supports the applicants’ submissions with respect to
the issues set out below?
1.
Is there
an obligation to advise an immigration counsel who is not licensed regarding
allegations of incompetence?
2.
Did the
officer err in law or exceed jurisdiction or breach fairness in rejecting the
credibility of the applicants without an oral hearing?
3.
Did the
officer err in law or exceed jurisdiction in relation to s. 108 (4)
(“compelling reasons”)?
4.
Did the
officer err in fact or err in law or exceed jurisdiction or breach fairness in
failing to determine the issue of state protection?
STANDARD
OF REVIEW
[23]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question (see also Khosa v. Canada
(MCI), 2009 SCC 12, per Justice Binnie at paragraph 53).”
[24]
The
first two issues involve procedural fairness and questions of law and as such are
reviewable on a correctness standard (see specifically regarding the obligation
to give notice of an allegation of incompetence to counsel: Nizar v. Canada
(MCI), 2009 FC 557 Per Justice Heneghan at paragraph 13; Ahmad v. Canada
(MCI), 2008 FC 646, per Justice Dawson at paragraph 14; specifically regarding
the requirement to hold a hearing: Latifi v. Canada (MCI), 2006 FC 1388,
per Justice Russell at paragraph 31; Rizvi v. Canada (MCI), 2008 FC 817,
per Justice Lemieux at paragraph 20; Shafi v. Canada (MCI), per Justice
Phelan at paragraph 10; Tekie v. Canada (MCI), 2005 FC 27, per Justice
Phelan; and my decision Zokai v. Canada (MCI), 2005 FC 1103 at paragraph
11).
[25]
The PRRA officer’s finding that the Mr. and Ms. Cromhout’s
experiences did not
rise to the level of “compelling reasons” under section 108(4) is a
finding of fact or mixed law and fact, and is subject to a standard
of review of reasonableness (see my decision in J.P.H.Q.G. v. Canada (MCI),
2008 FC 1329, at paragraph 23 citing Decka v. Canada (MCI), [2005]
F.C.J. No.
1029, 2005 FC 822, 140 A.C.W.S. (3d) 354, per Justice Mosley at paragraph 5).
[26]
The
last issue concerns the adequate provision of reasons, which touches upon
procedural fairness and therefore reviewable on a correctness standard of
review (Alexander v. Canada (MCI), 2006 FC 1147, [2006] 2 F.C.R. 681,
per Justice Dawson at paragraph 24).
[27]
In reviewing the officer’s
decision using a standard of reasonableness, the Court will consider "the
existence of justification, transparency and intelligibility within the
decision-making process" and "whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law." (Dunsmuir at paragraph 47; Khosa, supra,
at paragraph 59).
ANALYSIS
[28]
Before discussing the
issues raised by the principal applicant, the Court finds that the PRRA officer
dismissed this application because there was insufficient evidence of a serious
risk to the applicants if deported to South
Africa. The Court concludes
that this finding was reasonably open to the PRRA officer.
Issue No. 1: Is there an obligation to
advise an immigration counsel who is not licensed regarding allegations of
incompetence?
[29]
The
applicants submit that the officer erred in law in holding that there is an
obligation to advise an immigration consultant who is not licensed regarding
allegations of incompetence. The applicants argue that this case is
distinguishable from the leading case law on this issue because the consultant
in this case was unlicensed, so there was no governing body to which the
applicants could have complained to.
[30]
Shirvan
v. Canada (MCI), 2005 FC 1509, per Justice Teitelbaum at paragraph 31, is the
leading case on the issue of giving counsel notice of allegations of
incompetence made against them. In Shirvan, supra, this Court
held at paragraphs. 31-32 that before examining allegations of incompetence,
the applicant must meet a preliminary burden to give notice of the allegations
to the prior counsel.
[31]
Contrary
to the applicants’ submission, a letter or complaint to a governing body is not
the only notice that will be acceptable to this Court as a pre-condition to
examining counsel’s alleged incompetence.
[32]
In
Betesh v. Canada (MCI), 2008 FC 173, Justice O’Reilly held at paragraph
17 that 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.
[33]
It
was incumbent upon the applicants, who were represented by new counsel when
they applied for a PRRA, to send a letter to their immigration consultant to
advise them of the allegations of incompetence made against them in the PRRA
submissions. The onus is on the applicants to provide the necessary evidence to
support their claim. The officer was under no obligation to alert the
applicants to the requirement to provide evidence of notice to their
immigration consultant.
[34]
The
officer interpreted the law correctly when he determined that the applicants’
allegations of inadequate counsel at the time of their Board hearings could not
be considered because of the failure to give notice.
Issue No. 2: Did the officer err in
law or exceed jurisdiction or breach fairness in rejecting the credibility of
the applicants without an oral hearing?
[35]
The
applicants submit that the officer made a negative credibility finding based on
the applicant’s failure to provide a reasonable explanation for the failure to
attend any of the Board hearings. The officer exceeded his jurisdiction by
making a credibility finding without the benefit of an oral hearing pursuant to
subsection 113(b) of IRPA section 167 of the IRPR.
[36]
Section
167 of the IRPR and subsection 113 (b) of IRPA set out the requirements for
holding an oral hearing in a PRRA. Compliance with all three subparagraphs of section
167 indicates that a hearing may be required (L.Y.B. v. Canada (MCI),
2009 FC 462, per Justice Shore, at paragraph 12) (emphasis in original).
In other words, where the requirements in section 167 are complied with, a
presumption in favour of an oral hearing is raised (Shafi, supra,
at paragraphs 20-21). However, there is no statutory obligation to conduct a
hearing.
[37]
There
is also no statutory duty to conduct an oral hearing when an officer moves to
assess the weight or probative value of evidence without considering whether it
is credible (Ferguson v. Canada (MCI), 2008 FC 1068, per Justice Zinn,
at paragraphs 26-27).
[38]
The
requirements of section 167 of the IRPR are not met in this case. The PRRA officer
clearly stated that the applicant failed to adduce sufficient evidence to prove
her fear of risk. The applicant did not provide any evidence to support her
allegations of risk or trauma. The officer’s comments on the applicant’s
failure to provide an excuse for not appearing in front of the Board bore no
influence on the final disposition of the PRRA. There is no ambiguity in the
officer’s reasons that could lead this Court to hold that the officer failed to
differentiate between findings of insufficiency and credibility.
[39]
This
ground of review must therefore fail.
Issue No. 3: Did the
officer err in law or exceed jurisdiction in relation to subsection 108 (4)
(“compelling reasons”)?
[40]
The
applicant submits that the PRRA officer erred in dismissing the applicant’s
claim for relief under the “compelling reasons” doctrine because she did not
provide medical evidence of continuing psychological after-effects from the
abuse.
[41]
The
respondent submits that subsection 108(4) of IRPA is not applicable in the
present case because officer did not find that the applicants were Convention
refugees or persons in need of protection.
[42]
The
case law is clear that before a tribunal or officer may embark on a compelling
reasons analysis, “it must first find that there was a valid refugee (or
protected person) claim and that the reasons for the claim have ceased to exist
(due to changed country conditions)” (see the following decisions by Justice
Layden-Stevenson in Brovina v. Canada (MCI), 2004 FC 635, at paragraph 6;
Kudar v. Canada (MCI), 2004 FC 648; at paragraph 10; B.R. v. Canada
(MCI), 2006 FC 269, at paragraph 31; and Naivelt v. Canada (MCI),
2004 FC 1261, per Justice Snider at paragraph 37). In the absence of a finding
of past persecution or risk, subsection 108(4) has no application.
[43]
The
applicants in this case failed to satisfy the officer that they feared risk in South Africa. The officer
was not unreasonable in finding that the applicant’s claim was not sufficient
to show she feared a risk if they returned to South Africa. Since the
applicant was determined to not be a person in need of protection, subsection
108(4) does not apply.
[44]
The officer’s decision that subsection 108(4) does not
apply in this case is reasonable and should not be disturbed.
Issue No. 4: Did the officer err in
fact or err in law or exceed jurisdiction or breach fairness in failing to
determine the issue of state protection?
[45]
The
applicants submit that the PRRA officer erred in rejecting the claim without
any consideration or discussion of adequate state protection. The applicants
argue the officer’s reasons are inadequate in this regard and breach the duty
of fairness. This issue does not need to be considered in view of the Court’s
findings on the other issues.
CERTIFIED QUESTION
[46]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is dismissed.
“Michael
A. Kelen”
Email this Content