Date: 20090528
Docket: IMM-2188-08
Citation: 2009 FC 557
Ottawa, Ontario, May 28, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MOHAMED
FAZLATH MOHAMED NIZAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Mohamed Fazlath Mohamed Nizar (the “Applicant”) seeks judicial review of the
rejection of his Pre-Removal Risk Assessment application (“PRRA application”)
by Officer Mazzotti (the “Officer”).
[2]
The
Applicant is a citizen of Sri Lanka who came to Canada in November
2000. He claimed to be a Sri Lankan Moor and a businessman with ties to the Sri
Lankan Tamil community in Northern Sri Lanka. He alleged that he was targeted
by police, saying that they suspected him of having ties with the Tamil
movement.
[3]
The
Applicant’s claim for refugee protection was refused on January 7, 2002. His
application for leave and judicial review of that decision was dismissed on May
16, 2002.
[4]
The
Applicant made his PRRA application on January 13, 2002. His counsel, at that
time, provided submissions about threats and beatings by the police, due to his
alleged involvement with the Liberation Tigers of Tamil Eelam (“LTTE”).
[5]
The
file that the Applicant’s present counsel obtained from his former counsel
showed that further PRRA submissions were drafted on November 15, 2007.
However, the Officer’s decision showed that no further submissions were filed.
[6]
The
Applicant’s PRRA application was denied on March 19, 2008. According to the
affidavit that he filed in support of this application for leave and judicial
review, the Applicant contacted his former counsel who advised him to seek
judicial review. He deposes that he instructed his former lawyer to take
the necessary steps in that regard and she said that she could do so.
[7]
In
May 2008, the Applicant received a telephone call telling him he should report
for removal. After this telephone call, he visited the office of his former
counsel to find out the status of his application for judicial review and was
advised that she “would take care” of both the judicial review and the removal
order. The Applicant then decided to retain new legal representation.
[8]
In
his affidavit filed in the present proceeding, the Applicant deposes that his
former counsel is now subject to disciplinary proceedings before the Law
Society of Upper Canada arising from her failure to respond to numerous
complaints from the Complaints Resolution Department of the Law Society. He has
decided to file a complaint against his former counsel.
[9]
In
this application for judicial review, the Applicant argues that in concluding
that he was not at risk of persecution in Sri Lanka pursuant to section 96 or
that there were substantial grounds to believe that he would face a risk of
torture, risk to life or risk of cruel and unusual punishment pursuant to
subsection 97(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”),
respectively, the Officer committed a reviewable error by misconstruing the
evidence or by drawing unreasonable inferences. The Applicant also argues that
a breach of natural justice occurred because he had been represented by
incompetent counsel.
[10]
The
Minister of Citizenship and Immigration (the “Respondent”) submits that the
Officer did not ignore or misconstrue the evidence, including the documentary
sources that she consulted. He argues that the decision is reasonable, having
regard to the evidence that was before her. Further, he notes that the Officer
considered the evidence that the Applicant’s family continued to live in Sri Lanka without
problems caused by the alleged agents of persecution.
[11]
As
for the submissions concerning a breach of procedural fairness arising from the
alleged incompetence of the Applicant’s former counsel, the Respondent argues
that the Applicant has failed to meet his onus in this regard. The Respondent
submits that the Applicant has failed to show that his former counsel’s
behaviour amounts to professional misconduct but in any event, he has failed to
show that he was prejudiced by the alleged misconduct and that a miscarriage of
justice occurred in that, except for the alleged misconduct, the result of the
Officer would have been different.
[12]
The
first matter to be addressed is the applicable standard of review. Further to
the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, fact-driven decisions of administrative decision-makers are reviewable on
the standard of reasonableness. Where prior jurisprudence has established the
applicable standard of review, a reviewing court need not engage in an
exhaustive review in order to identify the applicable standard of review; see Dunsmuir
at para. 57, as discussed and applied in Da Mota. Having regard to the
body of jurisprudence that has been developed with respect to judicial review
of PRRA decisions, I adopt the standard of reasonableness in this case.
[13]
The
issue of procedural fairness remains subject to review on the standard of
correctness; see Ellis-Don Ltd. v. Ontario (Labour Relations Board),
[2001] 1 S.C.R. 221 at para. 65.
[14]
Turning
to the issue of the Officer’s alleged failure to properly consider the evidence
of persecution or risk to the Applicant, this is essentially a question of
fact. The Officer is mandated to weigh the evidence submitted.
[15]
Insofar
as his challenge to the factual findings of the Officer is concerned, the
Applicant argues that the Officer ignored or misconstrued or drew improper
inferences relative to his status as a young Tamil male who has attracted the
interest of the police, in the past. He also submits that she ignored the fact
that he is a businessman and that Tamil businessmen were specifically targeted
in Colombo. Further, he
argues that in light of the findings about the use of torture by the police and
the dire human rights situation, the conclusion that he would not face
persecution is unreasonable.
[16]
The
record before the Officer does not support these arguments. The Officer clearly
set out the basis for doubting that the Applicant was of interest to the
police. Her conclusion is reasonable.
[17]
I
agree with the submission of the Respondent that the Officer committed no error
in reaching her conclusion as to the Applicant’s status. He identified himself
in his PRRA submission as a Sri Lankan Moor and businessman with ties to the
Tamil community. This description is not the same as a “young Tamil” and in my
opinion, it was not unreasonable for the Officer not to describe him as such,
especially when the Applicant himself did not use that description.
[18]
The
Officer made a reasonable finding relating to the Applicant’s status as a
businessman since there was no evidence to show that he continued to operate a
business or would be compelled to do so if he returned to Sri Lanka.
[19]
While
there is evidence that young Tamil males were subject to human rights
violations by the government, in the absence of evidence that the Applicant fit
this profile, it was reasonable for the Officer not to apply that evidence to
the PRRA application that was before her.
[20]
In
summary, the Officer’s conclusions upon the evidence were reasonably open to
her and no reviewable error has been shown.
[21]
I
turn now to the Applicant’s submissions concerning breach of procedural
fairness arising from the incompetence of his former counsel. This issue is
reviewable on the standard of correctness, as noted above.
[22]
The
bar for demonstrating that incompetence of counsel has given rise to a
breach of procedural fairness is high. The subject was discussed by Mr. Justice
Denault in Shirwa v. Canada (Minister of Employment
and Immigration), [1994] 2 F.C. 51, who said the following at para. 12:
12 In other circumstances where a hearing does occur, the
decision can only be reviewed in "extraordinary circumstances", where
there is sufficient evidence to establish the "exact dimensions of the
problem" and where the review is based on a "precise factual
foundation." These latter limitations are necessary, in my opinion, to
heed the concerns expressed by Justices MacGuigan and Rothstein that general
dissatisfaction with the quality of representation freely chosen by the
applicant should not provide grounds for judicial review of a negative
decision. However, where the incompetence or negligence of the applicant's
representative is sufficiently specific and clearly supported by the evidence
such negligence or incompetence is inherently prejudicial to the applicant and
will warrant overturning the decision, notwithstanding the lack of bad
faith or absence of a failure to do anything on the part of the tribunal.
[Emphasis
added]
[23]
The
Respondent argues that in order to succeed on this argument, the Applicant must
establish three elements as follows:
a. that
Counsel’s acts or omissions constituted incompetence;
b. that he was
prejudiced by the alleged misconduct; and
c. that there was
a miscarriage of justice in the sense that, but for the alleged conduct, there
is a reasonable probability that the result from the original hearing would
have been different.
In this regard, the Respondent relies on
the decisions in Yang v. Canada (Minister of
Citizenship and Immigration), 2008 FC 269; R. v. G.D.B., [2000]
1 S.C.R. 520; Ahmad v. Canada (Minister of
Citizenship and Immigration), 2008 FC 646, and others.
[24]
In
Huynh v. Canada (Minister of Employment and Immigration) (1993), 21
Imm. L.R. (2d) 18, the Court held that only in the most extraordinary
situations will the Court conclude that the conduct of counsel justifies
intervention in a decision reached in a judicial review proceeding.
[25]
In
my opinion, that is not the case here. Leaving aside the nature of the conduct
of the former counsel in failing to file further submissions in support of the
Applicant’s PRRA application, he has failed to establish the second and third
elements set out above.
[26]
The
Applicant had a “hearing” before the PRRA Officer. There was no prejudice to
him in that regard. More importantly, he has failed to show that the outcome
would have been different. The Officer had the original submissions and she
looked at updated documentation concerning country conditions.
[27]
I
am satisfied that no breach of natural justice has occurred here, as a result
of the actions of the Applicant’s former Counsel and this application for
judicial review will be dismissed. There is no question for certification
arising.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that this application for
judicial review is dismissed, no question for certification arising.
“E.
Heneghan”
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