Date: 20071218
Docket: IMM-2377-07
Citation: 2007 FC
1329
Ottawa, Ontario, December 18,
2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
EHAB MOHAMED MO EL GHAZALY
SALWA TAWFIK MO SHALABY
SHADI EHAB MOHA EL GHAZALY
SHAIMAA EHAB MO EL GHAZALY
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), for
judicial review of a decision rendered by a Pre-Removal Risk Assessment (PRRA)
officer, Ms Charlaine Lapointe (the officer), dated April 19, 2007, to dismiss
an application for permanent residence from within Canada on humanitarian and
compassionate (H&C) grounds.
BACKGROUND
[2]
Ehab
Mohamed Mo El Ghazaly (the principal applicant), his wife Salwa Tawfik Mo
Shalaby and their two children Shaimaa Ehab Mo El Ghazaly and Shadi Ehab Moha
El Ghazaly (the applicants) are citizens of Egypt.
[3]
Except for the principal applicant, who only arrived in Canada on January 13, 2003, the applicants arrived in Canada on September 17, 2002. They applied for permanent
residence based on H&C grounds on February 28, 2003.
[4]
They made a refugee claim on August 18, 2003, but their
claim was rejected on March 12, 2004 on the basis of lack of credibility. The
decision was also based on the fact that they did not seek protection at the
first available moment and on the basis that there was insufficient
documentation to show a criminal conviction in Egypt. The application for leave for judicial review of that decision was
denied June 25, 2004.
[5]
On July 26, 2006, the applicants applied for a Pre-Removal
Risk Assessment (PRRA) which was rejected on April 19, 2007.
DECISION
UNDER REVIEW
[6]
The officer denied the H&C exemption on the grounds
that the applicants failed to demonstrate that they would suffer unusual,
undeserved or disproportionate hardship if they were required
to apply for permanent residence from Egypt.
ISSUES FOR
CONSIDERATION
[7]
After reading their submissions, I believe there are essentially
two questions to be determined:
a.
Did the officer breach her duty of procedural fairness by failing to
confront the applicants with her concerns about the authenticity of the Court
documents submitted or by failing to assess the evidence about Egypt?
b.
Did the applicants’ lawyer’s conduct breach their right to be heard?
PERTINENT
LEGISLATION
[8]
The humanitarian and
compassionate exemption is found at subsection 25(1) of the Act, and reads as
follows:
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25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister’s own initiative, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligation of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to
them, taking into account the best interests of a child directly affected, or
by public policy considerations.
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25. (1)
Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne
se conforme pas à la présente loi, et peut, de sa propre initiative, étudier
le cas de cet étranger et peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables, s’il estime
que des circonstances d’ordre humanitaire relatives à l’étranger — compte
tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt
public le justifient.
|
STANDARD OF
REVIEW
[9]
It is well established that the applicable standard of an H&C
decision is reasonableness simpliciter (Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
paragraph 62). However, on allegations of procedural fairness, the decision
will be reviewed on a standard of correctness (Canada
(Attorney General) v. Sketchley, 2005 FCA 404, at paragraph 53).
ANALYSIS
a.
Did the officer breach her duty of procedural fairness by
failing to confront the applicants with her concerns about the authenticity of
the Court documents submitted or by failing to asses the evidence about Egypt?
[10]
In an H&C application, applicants have the onus of
proving their claim (Owusu v. Canada (Minister of
Citizenship and Immigration), 2004
FCA 38 at paragraph 8). The four photocopied Court
documents from Egypt
submitted by the applicants indicate that the principal applicant appealed his
criminal convictions and the documents are dated April 15, 2004.
[11]
It appears from the officer’s decision that even if he had
considered these documents authentic, they were not sufficient, without further
evidence, to prove the hardship the applicants claim they would face if
returned to Egypt, as they are of no use to explain the context of the
sentencing. The officer found that there was no evidence to substantiate their
claim.
[12]
Furthermore, I would like to point out that the decision
rendered by the Immigration and Refugee Board (IRB) dated March 12, 2004, on
the same set of alleged facts, found that the story concerning his association
with Mr. Kamal Moubarak, who supposedly has close connections with the President
Moubarak, lacked credibility mainly because of the discrepancies between his
testimony and his Personal Information Form (the PIF).
[13]
The IRB also refers to documents provided by the applicants
in these words:
Un autre élément
important de la présente demande est le fait que le demandeur, qui a témoigné
craindre réellement pour sa vie depuis la réception de jugements définitifs
émis contre lui en avril 2002, n’a pas fourni la preuve de l’existence de ces
jugements. […] Le demandeur a déposé cinq certificats d’appel concernant ces
jugements […]. Questionné à savoir pourquoi il n’avait pas produit les
jugements définitifs d’avril 2002 au dossier, mais avait plutôt déposé des
certificats d’appel de ces jugements, il a répondu qu’il avait dû quitter son
pays en catastrophe, et que les jugements étaient restés en Égypte. Le tribunal
ne peut accepter ces explications et considère que même si le demandeur a dû
quitter en catastrophe, il aurait pu obtenir, depuis son arrivée au Canada, les
jugements définitifs d’avril 2002, ce qui aurait appuyé sa revendication. Le
tribunal a donc de sérieux doutes que ces jugements définitifs visaient son
arrestation, tel qu’il allègue.
[14]
Considering that the applicants have submitted new documents,
which are still not equivalent to a final written decision but are certificates
simply confirming that there was a final decision rendered April 29, 2002, I
find it curious that they are now surprised at the outcome of their H&C
application. As Justice Luc J. Martineau held in Tuhin v. Canada (Citizenship and
Immigration), 2006 FC 22, a judicial review of a PRRA decision,
at paragraph 5:
[i]n this case, the application for protection essentially
raised the same allegations of risk that were previously raised before the IRB,
and the PRRA Officer cannot be reproached for arbitrarily excluding evidence
that had already been submitted to the IRB. With regard to the new pieces of
evidence introduced by the applicant, the PRRA Officer clearly explained why
these were not probative or conclusive in the circumstances.
I believe the same can be
said in the case at bar, even if the threshold of risk to life or cruel and
unusual punishment is lower than in a PRRA application.
[15]
As Justice Danièle Tremblay-Lamer recently stated in Rafieyan v. Canada (Citizenship
and Immigration), 2007 FC 727, at
paragraph 21:
[i]t is trite law that an officer is presumed to have
considered all of the evidence before him or her, and that the assessment of
weight to be given is a matter within his or her discretion and expertise (Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317
(F.C.A.), [1992] F.C.J. No. 946 (QL); Shah v. Canada (Minister of Public
Security and Emergency Preparedness, 2007 FC 132, [2007] F.C.J. No. 185
(QL).
[16]
Furthermore, the same officer also assessed the PRRA
application, which was denied after a clear assessment of the objective
documentation – which reveals that detention condition are especially
deplorable and that torture does occur in Egyptian prisons – on the basis that
she was not satisfied the principal applicant would be subject to hardship.
[17]
The applicants, in their “Request for exemption from
permanent resident visa requirement”, clearly refer only to factors that have
been considered by the officer. The officer also assessed the best interest of
the child, which the applicants did not even allege. After having considered
the objective evidence, she concluded that the child would have access to
education notwithstanding the fact that she is a girl. The applicants did not
show this Court how the officer failed to consider the evidence before her.
[18]
The applicants rely on the decision rendered by Chief Justice
Allan Lutfy in Pinter v. Canada (Citizenship and
Immigration), 2007 FC 986. This is clearly not a case
where the officer made an error of law by concluding that she was not required
to deal with risk factors in her assessment of the humanitarian and
compassionate application. She did assess the risk factors but decided to give
little weight to those factors because the applicants failed to submit credible
evidence supporting the facts alleged. Essentially, the applicants are asking
this Court to substitute its own analysis of the weight and probative value to
be given to the evidence in risk assessment, which is not for the Court to
determine.
b.
Did the applicants’ lawyer’s
conduct breach their right to be heard?
[19]
The applicants allege that their former lawyer failed to file
the original version of the Court documents, which the applicants had provided
to him. They submitted a letter signed by the former counsel dated July 10,
2007, stating the following:
La présente e[s]t pour
vous confirmer que j’ai représenté Monsieur Ehab dans les dossiers de demande
CH et ERRAR. Je confirme aussi que Monsieur EL-GHAZALY était en possession des
originaux des jugements émis contre lui en ÉGYPTE, mais je ne peux confirmer
qui les aurait déposés auprès de CIC.
[20]
As noted by the respondent, the general rule is that a
representative acts as an agent for the client and the client must bear the
consequences of having hired poor representation. Recently, Justice Michel M.J. Shore in Vieira v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 626, held at paragraph 29:
[t]he
jurisprudence is clear that an applicant must be held to their choice of
adviser and further, that allegations of professional incompetence will not be
entertained unless they are accompanied by corroborating evidence. Such
evidence usually takes the form of a response to the allegation by the lawyer
in question, or, a complaint to the relevant Bar Association. In this case, the
Applicants have made an assertion, without providing any evidence in support of
their allegation. A failure to provide notice and an opportunity to respond
to counsel whose professionalism is being impugned is sufficient to dismiss any
allegations of incompetence, misfeasance or malfeasance. (Nunez v.
Canada (Minister of Citizenship and Immigration), (2000) 189
F.T.R. 147, [2000]
F.C.J. No. 555 (QL), at para. 19; Geza v. Canada (Minister of
Citizenship and Immigration), (2004) 257
FTR 114, [2004]
F.C.J. No. 1401 (QL), Shirvan v. Canada (Minister of Citizenship
and Immigration), 2005 FC
1509, [2005]
F.C.J. No. 1864 (QL), at para 32; Nduwimana v. Canada
(Minister of Citizenship and Immigration), 2005 FC
1387, [2005]
F.C.J. No. 1736 (QL); Chavez, above.) [my emphasis]
[21]
In the present case, the principal applicant states that he
has filed a complaint against his former lawyer. This is far from being an
exceptional case where “counsel’s alleged failure to
represent or alleged negligence are obvious on the face of the record and have
compromised a party's right to a full hearing” (Dukuzumuremyi v. Canada (Minister
of Citizenship and Immigration), 2006 FC 278, at
paragraph 18). Therefore,
this allegation is rejected.
[22]
For the reasons noted above, this application is dismissed.
[23]
Counsel did not provide any question for certification.
JUDGMENT
1.
The application is denied.
2.
No question for certification.
“Pierre Blais”
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