Date: 20110414
Docket: IMM-4887-10
Citation: 2011 FC 459
BETWEEN:
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SUREEL LATA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER
BLANCHARD J.
[1]
This
is an application
for judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated August 4, 2010, dismissing the
Applicant’s Abuse of Process Application for an Order dismissing or staying the
Minister’s Application to Vacate and directing the Minister’s Vacation
Application to be set down for hearing.
Factual
Background
[2]
The
Applicant, Ms. Sureel Lata, is a 46 years old Indo-Fijian. She came to Canada on December 28, 1999 as a visitor and filed a refugee claim on June 2, 2000, following a coup
d’état in Fiji.
[3]
The
Applicant’s refugee claim was based on racially-motivated persecution of
Indo-Fijians by native Fijians during and after the coup d’état. In her
application, the Applicant alleged her home had been violently ransacked by native
Fijians and that her husband and teenage children had barely escaped with their
lives.
[4]
On May 8,
2001, the Convention Refugee Determination Division (the CRDD) determined that
the Applicant was a Convention Refugee.
[5]
The Applicant
then applied for permanent residence pursuant to the refugee category,
including the Applicant’s former husband and two children.
[6]
The
Applicant’s former husband has been interviewed twice in Fiji, on October 11, 2002 and on March 21, 2003, in relation to the Applicant’s permanent
residence application and to clarify the circumstances surrounding the
departure of his family from their former home. In both interviews, he
indicated that he and the Applicant left their home in December 1999, shortly
before the Applicant came to Canada, because their landlord did not renew their
lease. He did not mention anything about the violent and forceful eviction from
their home in Fiji by natives as related by the Applicant in her refugee claim.
[7]
Following
those interviews, a Canadian Border Services Agency Officer conducted an
interview with the Applicant on December 21, 2005 to obtain her response to her
former husband’s statements.
[8]
The Minister
then filed the Vacation Application in March 2009 seeking to vacate the CRDD’s
determination that the Applicant was a Convention Refugee because she had
misrepresented or withheld material facts.
[9]
On February
10, 2010, the Applicant filed an Abuse of Process Application wherein she
alleges that she suffered prejudice by reason of the Minister’s delay in filing
the Vacation Application rendering her unfit to testify or participate in the
proceeding. As a consequence, she argues that she is unable to prepare a full
answer and defence.
[10]
Along with
her Abuse of Process Application, the Applicant filed a psychological report of
Dr. Krywaniuk wherein he opined that Ms. Lata “is severely depressed and that
this has been building for the last number of years.” He reported that Ms.
Lata has a history of sexual abuse during her marriage and has scars to support
this. Her symptoms had gradually abated, but some have been rekindled by her
increasing stress levels brought about by the delay she has been experiencing
with regard to her status in Canada. In his April 5th, 2010
affidavit, Dr. Krywaniuk affirmed that, “Perhaps in the barest of terms, I
would say that, absent the long delay in bringing the vacation allegations, I
think it very likely Ms. Lata would have continued to be psychologically
functional.”
[11]
In another
psychological report, Dr. Peach confirmed Dr. Krywaniuk’s opinion that the
Applicant is psychologically unfit to stand trial or participate in any court
proceedings without causing a severe worsening of her underlying medical
condition.
The
Board’s decision
[12]
The Board
dismissed the Applicant’s Abuse of Process Application. Applying the test set
out by the Supreme Court in Blencoe v British Columbia Human Rights
Commission, 2000 SCC 44 (Blencoe), the Board found that proof of
prejudice had not been demonstrated to be “of sufficient magnitude” to impact
on the fairness of the hearing. It found that the Applicant would be afforded a
fair hearing, even though she would not testify. The Board also found that the
delay directly caused significant psychological harm to the Applicant, but did
not find the harm to be of such magnitude that the public’s sense of decency
and fairness would be offended.
[13]
The Board
also determined that the Applicant was a vulnerable person under the Board’s
applicable guidelines (the Chairperson’s Guidelines on Procedures with
respect to Vulnerable Persons Appearing Before the Immigration and Refugee
Board), and appointed the Applicant’s sister as Designated Representative
to instruct counsel and assist in gathering evidence for the purpose of the
vacation proceeding. However, in a decision dated September 8, 2010, based on
new evidence adduced by the Applicant, the Board revoked the Applicant’s
designation as a vulnerable person and the appointment of a Designated Representative.
Issues
[14]
The following
issues are raised in this judicial review:
1. Did the Board err in concluding
that there has been no significant prejudice to the fairness of the Applicant’s
vacation proceeding?
2. Did the Board err in finding that
the proceeding has not been so tainted as to bring the Immigration and Refugee
Protection System into disrepute?
The
Law
[15]
In
determining whether a person’s right to a fair hearing has been violated by an
inordinate delay, the Supreme Court in Blenco, above, at paragraphs 101 teaches
that: “…delay without more, will not warrant a stay of proceedings as an abuse
of process, …there must be a proof of significant prejudice which results from
an unacceptable delay”. The Supreme Court also defined the term “of significant
prejudice” to include circumstances when the delay impairs a party’s ability to
answer the complaint against her because, for example, memories have faded;
essential witnesses have died, became unavailable; or evidence has been lost.
[16]
In Blencoe,
above, the Supreme Court also found that, in circumstances where the delay did
not warrant a finding of a breach of a person’s right to a fair hearing, it was
open to a reviewing court to find a proceeding to be so tainted by the delay as
to bring the administrative agency or tribunal into disrepute in the eyes of
the community. In such circumstances, the Supreme Court set out at paragraph
115 of Blencoe, a two part test: (1) whether the delay directly caused
the Applicant to suffer significant psychological harm, and (2) whether the
harm suffered by the Applicant due to the delay has tainted the proceedings to
such an extent as to bring the administrative agency or tribunal into
disrepute. The Court specified at paragraphs 122 and 133 of its reasons, that
the delay must have caused actual prejudice of such magnitude that the public’s
sense of decency is affected.
Standard
of review
[17]
Questions
concerning whether the Board applied the correct legal test are questions of
law reviewable on a correctness standard. Questions of fact and questions of
mixed fact and law are reviewable on a reasonableness standard which concerns
mostly the existence of justification, transparency and intelligibility within
the decision-making process. The decision must fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law. See:
Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47.
Analysis
Fairness of the proceeding
[18]
The Applicant
advances the following grounds relating to the fairness of the hearing:
(1) The Board applied the wrong
legal test in deciding not to grant the stay;
(2) The Board failed
to appreciate that the Applicant is an essential witness and necessary to
building a defence;
(3) The board erred
in finding that the statutory declaration of the CBSA Officer could be
substituted for the Applicant’s evidence;
(4) The Board erred in
speculating on the availability of alternate witnesses.
The fairness of the hearing
[19]
The Applicant
first contends that the Board erred by applying the wrong legal test in
dismissing the request for a stay. She argues that the test set out in Blencoe,
above, on when a stay may be ordered by reason of delay amounting to an abuse
of process requires consideration of whether, “memories have faded, essential
witnesses have died or are unavailable or some other similar form of prejudice
that impairs a party’s ability to answer the complaint.” Therefore, by asking
whether the Applicant could address the issues at the vacation hearing through
other means, the Applicant contends the Board committed a reviewable error of
law. I disagree. The test in Blencoe, above, requires that the person
alleging abuse of process show that, because of the delay, they have suffered
prejudice of “of significant magnitude” to impact on the fairness of the
hearing. In my view, the Board applied the correct legal test and, in so doing,
reasonably considered other options open to the Applicant to address the issues
to be raised at the vacation hearing. This does not amount to a misapplication
of the legal test set out in Blencoe.
[20]
The Applicant
argues that her testimony and knowledge are vitally important, as the Vacation
Application is completely fact-driven. She contends that evaluating the
truthfulness of her former husband’s statements in 2000, 2002 and 2003 is at
the heart of the Vacation Application. She argues that her testimony is required
to establish the circumstances under which her former husband’s statements to
her were made in 2000. She maintains that evidence relating to changes in their
relationship such as divorce proceedings may explain her former husband’s
subsequent statements in which he relates a contradictory account of events.
She argues that she is the only one that could provide such evidence.
[21]
The Applicant
further contends that she is best situated to assist counsel in identifying
potential witnesses and advise counsel of relevant facts and circumstances relating
to the vacation proceeding. Consequently, her active participation is required
to allow her to advance her position and provide full answer and defence. The
Applicant argues that by reason of her mental condition caused by the delay in
bringing the vacation proceeding she is now unfit to testify and participate
meaningfully in her vacation hearing.
[22]
The alleged
misrepresentation by the Applicant, which led to the filing of the Vacation Application
by the Minister, relates to the circumstances surrounding the departure of her
former husband and children from the family home in Fiji. The Applicant was not
present at the time of the coup d’état in Fiji when she claims that the
Native Fijians ransacked their home, forcibly evicted her husband and children,
and threatened them with death and serious bodily harm. At the time, she had
already departed for Canada. Therefore, she has no first-hand knowledge of how
events unfolded on that day. She could only relate information that she learned
from others. The best evidence would be adduced by first-hand witnesses, such
as her children who were present at the time of the alleged forceful eviction.
Consequently, the Applicant’s evidence is not essential to establish the
critical alleged facts at her vacation hearing.
[23]
The
Applicant’s relationship with her husband may be relevant to shed light on her
former husband’s subsequent statements, but this is not the only evidence that
may be adduced to challenge the credibility of his statements. As found by the
Board, others could be called to verify the Applicant’s account of the family’s
departure from the family home. In the circumstances, it was reasonably open to
the Board to find that other options were available to the Applicant to adduce
evidence to support her version of events. It pointed to potential witnesses
and/or potential documentary evidence to corroborate the Applicant’s refugee
claim. I disagree with the Applicant’s submissions that those findings were
speculative. The record shows that other family members, including the
Applicant’s own children, who were young adults at the time, were present in Fiji when the coup d’état occurred and had personal knowledge of the circumstances
mentioned in the Applicant’s claim. There is also mention of the existence of a
lease for the family property. Should such documentary evidence be found, it may
shed light on the terms of the leasehold agreement and whether the term was
expired as alleged by the Applicant’s former spouse. In the circumstances, the
Board did not err in finding that even if the Applicant were not able to
testify at her vacation hearing, it would not lead to an unfair hearing.
[24]
I agree with
the Applicant that the CBSA Officer’s statutory declaration is no substitute
for her testimony. It is, however, evidence that is relevant to the issue
raised in the vacation hearing. The declaration reproduces the questions and
answers put to the Applicant by the CBSA Officer during the December 21, 2005
interview and will be weighted against other evidence to be adduced. Its
probative value will be decided at the vacation hearing.
[25]
Further, the
Applicant does not point to any specific evidence she would adduce that would
challenge the Minister’s allegation in the vacation hearing. She had an
opportunity to provide such evidence during the December 2005 interview with
the CBSA officer, at which time she clearly understood that there were important
contradictions between her version of events and that of her former husband.
[26]
While the
Applicant may not be able to testify at her hearing, I am of the view that she
is able to assist her counsel in identifying witnesses and instruct counsel. The
psychological evidence adduced by the Applicant and accepted by the Board, at
the reconsideration hearing, shows that while the Applicant would be unable to
testify she understood the importance and purpose of the vacation proceeding. The
psychological reports opine that she is too ill and completely incapable of
preparing for a hearing or testifying. However, evidence indicates that she was
actively involved in all matters concerning her status in Canada, including the
vacation proceedings, and regularly met with her counsel to discuss these
matters and was able to give instructions to her counsel. The Applicant’s
counsel at the time of the application for reconsideration affirmed that:
(a) I have not been shielding
Ms. Lata from the vacation proceedings;
(b) I have at all times been
sharing information with Ms. Lata about the vacation proceedings;
(c) I have satisfied myself
that Ms. Lata understands the vacation proceedings and can instruct me with
respect to those proceedings;
(d) I have been taking
instructions from Ms. Lata throughout the vacation proceedings;
(e) With respect to the Rule
20 Conference on 28th April, 2010 [“Pre-hearing Conference”], I
spoke to Ms. Lata about the Conference both before and after appearing on her
behalf. I explained what the conference was about and what had happened at it.
I satisfied myself that Ms. Lata understood the nature of the Pre-hearing
Conference and that she could give me instructions in this respect.
(f) I have at all times
informed Ms. Lata about the abuse of process application, satisfied myself that
she understood these proceedings, could give me instructions, received
instructions from her on the application, as well as on all other matters
regarding her vacation proceeding.” (Affidavit of Naomi Minwalla, affirmed
August 16th, 2010, Applicant’s record at page 264-65)
This
is the same evidence that persuaded the Board to reconsider and revoke its
Order declaring the Applicant a vulnerable person and appointing a Designated
Representative.
[27]
In my view,
the Board reasonably found that the delay at issue ran from December 21, 2005,
the day the Applicant was interviewed to respond to her former husband’s
account of events which contradicted important facts which were the basis of her
refugee claim. It is at that time that the Applicant was first informed of the
issue which led to the filing of the vacation hearing. The psychological
reports indicate that up to that time “she was able to function well enough to
work and otherwise lead a normal life.” The burden is on the Applicant to show
that, as a result of the delay, she has suffered prejudice of sufficient
magnitude to impact on the fairness of the proceedings. On the evidence, I am
satisfied that the Board reasonably concluded that the Applicant did not
establish that she would be denied a fair hearing by reasons of the delay.
Did
the Board err in finding that the proceeding has not been so tainted as to
bring the immigration and refugee protection system into disrepute?
[28]
The Applicant
argues alternatively, that notwithstanding the fairness of the hearing itself,
the delay would so taint the proceeding as to bring the immigration and refugee
protection system into disrepute.
[29]
The
applicable legal test on the question is set out in Blencoe, above.
First, it must be decided whether the Minister’s delay in initiating the Vacation
Application directly caused the Applicant to suffer significant psychological
harm; and second, if so, it must be determined if the harm suffered by the
Applicant due to the delay has tainted the proceedings to such an extent as to
bring the administrative agency or tribunal into disrepute (Blencoe, at
paragraph 115). The Supreme Court found that the delay must have caused actual
prejudice of such magnitude that the public’s sense of decency is affected (Blencoe,
at paragraphs 122 and 133).
[30]
There is no
dispute relating to the Board’s finding, on the first part of the test, that
the delay directly caused significant psychological harm to the Applicant.
[31]
The Applicant
submits that the Board incorrectly applied the second part of the test. She
claims that the focus should have been on the harm actually suffered by the
Applicant instead of the harm that would have been hypothetically suffered by
an ordinary person. I disagree. I find the Board correctly applied the second
part of the test. The Board had to determine whether the harm suffered by the
Applicant was of such a magnitude that the refugee system would be brought into
disrepute because the public’s sense of decency would be affected. In its decision,
the Board carefully considered the Applicant’s circumstances and the harm she
suffered. This assessment was conducted with regard to the particular
circumstances and contextual factors surrounding the Applicant’s refugee claim
and the developments which led to the bringing of the Vacation Application. These
factors include, amongst others; the Applicant’s ability to instruct counsel on
her Vacation Application, the likely availability of other witnesses that could
be called on behalf of the Applicant at the hearing, including her own
children, and the fact that the Applicant was not present in Fiji on the day
she claims Native Fijians ransacked their home, forcibly evicted her husband and
children, and threatened them with death and serious bodily harm. The latter is
the key allegation upon which the Applicant founded her refugee claim. The
Board did not commit a reviewable error by considering the harm that an
ordinary person might suffer in similar circumstances.
[32]
On the
evidence, it was reasonably open to the Board to conclude that the immigration
and refugee protection system has not been tainted because Ms. Lata has
suffered in the ways she has. In my view, the harm suffered by the Applicant
was not of such a magnitude that the refugee system would be brought into
disrepute because the public’s sense of decency would be affected. Given the
harm suffered by the Applicant, the facts of this case do not meet the very
high threshold of prejudice required to meet the test.
[33]
For the above
reasons, the application for judicial review will be dismissed.
[34]
Counsel are requested to serve and file their submissions with
respect to the certification of a question or questions of general importance,
if any, within ten (10) days of receipt of these reasons. Each party will have
a further four (4) days to serve and file any reply to the submission of the
opposite party. Following consideration of those submissions, an order will
issue dismissing the application for judicial review and disposing of the issue
of a serious question of general importance as contemplated by section 74(d)
of the Immigration Refugee Protection Act, SC 2001 c 27.
“Edmond P. Blanchard”
Ottawa, Ontario
April
14, 2011
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