Date:
20090227
Docket:
IMM-2377-08
Citation:
2009 FC 211
Ottawa, Ontario, February 27,
2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
DILIM
VANESSA CHUKWUDEBE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
way it normally works is this. An applicant who claims to be a refugee or
otherwise in need of international protection in accordance with sections 96
and 97 of the Immigration and Refugee Protection Act is not to be
removed from Canada before a
determination is made. If the determination is negative the applicant is then entitled
to apply for a pre-removal risk assessment (PRRA). This PRRA application
results in a further automatic stay of removal from Canada for most
applicants. In Ms. Chukwudebe’s case, had she filed in time she would have been
entitled to a further stay until the PRRA decision was rendered. No such
decision has been rendered as yet.
[2]
However
she filed late. Section 160 and following of the Immigration and Refugee
Protection Regulations provide that in a case of late filing one is still
entitled to a PRRA, but the application no longer results in an automatic stay of
removal.
[3]
Section
48 of the Act requires a foreign national, such as Ms. Chukwudebe, against whom
a removal order is made and is enforceable to leave Canada immediately.
Furthermore, it must be enforced “as soon as is reasonably practicable”, by an
Enforcement Officer.
[4]
Ms.
Chukwudebe requested, through counsel, that her removal be deferred until a
decision was rendered on her PRRA application. Her plea fell on deaf ears. Her
request was denied. This is a judicial review of that decision.
[5]
Ms.
Chukwudebe was required to file her application form by 12 February 2008 and
written submissions to support that application were due before 27 February
2008.
[6]
She
completed the form at her lawyer’s office on 11 February
2008.
His office mailed it out that day, rather than hand-deliver it. According to
documents in the Tribunal Record the application was only received 17 February 2008.
Furthermore, the subsequent written submissions were only received 3 March
2008.
[7]
She
was informed that her application was received late and then was given a date
to present herself at the airport in Toronto for removal.
[8]
The
former lawyer for Ms. Chukwudebe explained that his client had been pregnant
and sick, which is why the application was only mailed out on 11 February 2008.
The lawyer incorrectly said “the due date was 14 February 2008”. This is a
clear error. No real explanation was then given as to why the written
submissions due 27 February were late. The lawyer submitted that there was a bona
fide intention to comply with the time period and referred to a number of
cases in that regard.
[9]
The
Enforcement Officer was not swayed. In his notes to file he set out the history
of the matter, including various submissions by counsel, and simply concluded
there was no justification for late filing.
[10]
The
Enforcement Officer focused on Ms. Chukwudebe’s pregnancy and was not satisfied
that that prevented her from completing the PRRA application and submitting it
on time. He is correct. She did all that was within her power. The delays are
administrative delays attributable to her counsel. This distinction was not
grasped by the Enforcement Officer who did not take into account jurisprudence
of this Court.
[11]
Ms.
Chukwudebe’s counsel referred to four cases of this Court granting judicial
review of negative decisions in which claims were dismissed because of tardy
filing or failure to appear. Particular reference was made to the decision of Januzi
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1386, 267 F.T.R. 161, [2004]
F.C.J. No. 2189 (QL). That was a case in which a Personal Information Form was
filed late causing the Immigration and Refugee Board to hold that the refugee
claim had been abandoned. Even after a miscommunication was explained the Board
refused to reopen the claim.
[12]
Ms.
Chukwudebe’s counsel quoted paragraph 8 thereof:
I
would have thought it went without saying that the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, and its Regulations are to be interpreted
with its objectives always in mind. Section 3 states the Act is all about
saving lives and offering protection to the displaced and persecuted, and to
give fair consideration to those who come to Canada
claiming persecution. This decision was not a fundamental expression of Canada's humanitarian ideals.
[13]
Furthermore
there is a distinction between the error of a lawyer as a lawyer and an
administrative error within his office. As I said in Medawatte v. Canada (Minister
for Public Safety and Emergency Preparedness), 2005 FC 1374, 52 Imm.
L.R. (3d) 109, [2005] F.C.J. No. 1672 (QL):
[10] There is a great deal
of jurisprudence in these matters to the effect that a party must suffer the
consequences of his or her own counsel. I subscribe to that view. If a case has
been poorly prepared; if relevant jurisprudence was not brought to the
attention of the Court in a civil case; if there was a bad choice in witness
selection, the consequences fall on that party. Is there a difference, however,
between malfeasance and non-feasance? In this case, it is not a question of a
lawyer doing something poorly. He did not do something he should have done. In
Andreoli v. Canada (Minister of Citizenship and Immigration)
2004 FC 1111; 2004 F.C.J. 1349 (QL), the applicants' refugee claim was ordered
abandoned because the interpreter in their lawyer's office failed to provide
the authorities with a change of address. I found in that case the board in
deciding that the applicants were the authors of their own misfortune was
punishing them for the carelessness of a third party. I found that to dismiss
that application would be to disregard the principles of natural justice. I said:
I issue this order keeping in
mind the words of Lord Denning in Doyle v. Olby (Ironmongers) Ltd. (1969) 2 All
E.R. 119, who at page 121 stated:
We never allow a client to
suffer for the mistake of his counsel if we can possibly help it. We will
always seek to rectify it as far as we can. We will correct it whenever we are
able to do so without injustice to the other side. Sometimes the error has
seriously affected the course of the evidence, in which case we can at best
order a new trial.
This is not a case where counsel
poorly pleaded their case on the merits. Rather, it involved a matter that had
never been heard because of an administrative error which occurred at counsel's
office.
[14]
The
Enforcement Officer gave no indication in his notes that he had considered the
jurisprudence. Nor did he give any consideration as to why the normal rule is
that an applicant is not to be removed pending a PRRA determination. The reason
is that until a determination is made it may well be that the applicant is in need
of international protection.
[15]
No
one can ignore the law, not even an Enforcement Officer. The decision was
unreasonable and so judicial review shall be granted.
[16]
Although
Ms. Chukwudebe did not obey the removal order, the submission that her judicial
review should not be granted because of lack of “clean hands” is somewhat
ironic and not relevant in this case. She never went into hiding and for some
time represented herself. In the documents she served and filed, she gave her
address and telephone number! Furthermore, she was present in court for her
hearing.
[17]
Another
point of concern is that for reasons counsel for the respondent was unable to
explain, no decision has been made as yet on her PRRA application,
notwithstanding that in the normal course such a decision should have been
rendered long ago.
ORDER
THIS
COURT ORDERS that:
1.
The
application for judicial review is granted.
2.
The
matter is referred back to another decision maker for a fresh determination.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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