Date: 20110725
Docket: IMM-6842-10
Citation: 2011 FC 927
Ottawa, Ontario, July 25, 2011
PRESENT: The Honourable
Mr. Justice Zinn
BETWEEN:
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TESHEL K. MEDICA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
After two days of hearing,
Immigration and Refugee Board Member Donald G. McSweeney determined that the
applicant was neither a Convention refugee nor a person in need of protection.
The sole issue raised in this application for judicial review is whether the conduct
of the applicant’s representative
before the Board, Dunstan Munro, a member of the Canadian Society of
Immigration Consultants (CSIC), resulted in a breach of the principles of
natural justice. The applicant submits
that Mr. Munro’s acts and omissions constituted incompetence and that as a
result of his actions there was a miscarriage of justice that warrants a
re-hearing of her claim for protection.
[2]
The applicant is a 23-year-old
woman from St. Vincent and the Grenadines. When the applicant was 12 years old her mother
moved to England to escape her husband’s physical abuse. She promised
to send for the applicant but never did. The applicant was left in the care of
the abusive husband, her father Hudson Collins. The applicant says that her
father is a drug addict; that he physically abused her; and that he forced her
to have sex with drug dealers when he owed them money he was unable to pay. She
left home temporarily but upon her return the abuse continued. She says that
she reported the abuse to the police, but that when they questioned her father,
he denied everything and no further action was taken. The applicant came to Canada with the
assistance of a friend of her mother. The Member denied the claim because he
found the claimant’s allegations not to be credible.
[3]
In Memari v Canada (Minister of
Citizenship and Immigration), 2010 FC 1196, Justice Crampton reviewed the principles
applicable where there is an allegation that counsel’s incompetence caused a denial
of natural justice in a proceeding under the Immigration and Refugee
Protection Act, SC 2001, c 27. Although Mr. Munro is not legal counsel, he
is a certified immigration consultant, and the same principles apply. In light
of Memari and R v GDB, 2000 SCC 22, if the applicant is to
succeed in her application for judicial review, she must establish “first, that
counsel’s acts or omissions constituted incompetence and second, that a
miscarriage of justice resulted.”
[4]
The
Supreme Court, at para. 27 of GDB, instructed that incompetence is to be
determined using the reasonableness standard, with there being a strong
presumption that the conduct complained of fell within the wide range of
“reasonable professional assistance.” In my view, this caution is particularly
relevant because the former representative is not before the Court to explain
his actions. Although the applicant has made a complaint to CSIC concerning
Mr. Munro’s representation, the record does not contain any response he may
have filed or any affidavit from him either explaining, admitting, or
justifying the acts and omissions of which the applicant now complains; such an
affidavit was before the Court in Memari. The Court is left to assess
whether the acts and omissions constitute incompetence based on the facts
disclosed in the record, including the transcript of the hearing, the decision,
and the applicant’s affidavit.
1. Was the
applicant’s representative incompetent?
[5]
Mr.
Munro’s impugned conduct falls under five headings: (1) his conduct with
respect to tendering documentary evidence; (2) his failure to seek procedural
accommodation for his client; (3) his conduct towards Member McSweeney on
the first day of the hearing; (4) his failure to follow-up on his promises to
seek the removal of the Member after the first day of hearing; and (5) his
failure to provide any submissions to the Member.
Conduct in failing to tender
documentary evidence
[6]
The
applicant submits that “apart from the psychological report which was submitted
on the day of the hearing (well outside the 20 day disclosure rule), Mr. Munro
failed to submit any personal or country documents.” It has not been established
that there are any country condition documents not already before the Board that
may have been relevant to the applicant’s claim; however, the same cannot be
said for the absence of documents directly related to and supportive of the
applicant’s claim.
[7]
The
Member noted that the psychological report which Mr. Munro did produce contained
several serious allegations which were not included in the Personal Information
Form (PIF) narrative, including allegations that her father beat her with a
stick after she tried to run away, that on at least three occasions she was gang
raped by three or more men, that one drug dealer threatened her with a knife
during a sexual assault, that one man cut her face with a knife in one assault,
and that she had been forced to use cocaine. The Member noted that Ms. Medica
had been represented by Mr. Munro throughout and that it was reasonable to
expect such serious allegations to be included in her PIF. He assigned little
weight to the psychological report and “assigned a significant negative
inference to the claimant’s disclosure of serious allegations of abuse which
were not included in her PIF.”
[8]
It
is not uncommon for a claimant to file an amended PIF narrative prior to the
hearing when new facts become known. However, that assumes that there is
sufficient time to do so. Here, the psychological report dated June 8,
2010 was based on a meeting with the psychologist on June 3, 2010.
The hearing was held on June 9, 2010. Accordingly, Mr. Munro had the report in
hand no more than 24 hours prior to the hearing; – hardly sufficient time to properly
prepare an amended PIF.
[9]
There
is no evidence before the Court indicating that Mr. Munro was aware of these
“new” allegations of abuse until he received the psychological report; the
applicant’s affidavit filed in support of this application is silent in this
respect. There is nothing to suggest that the applicant had previously
disclosed the new allegations to Mr. Munro or that he was negligent in failing
to include them in the PIF that had been filed. I cannot find that Mr. Munro’s
conduct fell outside the range of reasonable professional assistance on this
basis.
[10]
In
addition to the new evidence disclosed in the psychological report, the Member
found that the applicant had failed to tender documents to support her story.
This included her failure to establish with documentary evidence that Mr.
Hudson Collins was her father. Given that he was the alleged agent of
persecution, this finding substantially impacted her claim. The Member found
that the applicant “did not present a birth certificate from St. Vincent [and]
made no efforts to obtain documents from St. Vincent to prove that Mr. Collins
existed and was her father.”
[11]
Another
document that the Member noted was not provided was the police report relating
to the applicant’s complaint against her father and the ensuing police
investigation. The Member noted a minor inconsistency in the applicant’s
evidence as to when she lodged the complaint: whether it was September 2007 or
June 2007. The Member held: “The claimant did not provide a police report.
Given the inconsistency, the panel finds the claimant’s allegations of turning
to police for protection were not credible.” Had the report been available, it
would most likely have been a complete answer to the minor inconsistency
noted. It would most certainly have established that the applicant had sought
police protection, to no avail.
[12]
The
Member also noted the failure to provide any documents relating to or an affidavit
from the woman who helped the applicant escape from her father and travel to Canada. The Member found that
“if she existed, it would be reasonable for the claimant to have requested
documents from the woman in England.” The Member also found it to be “unreasonable that the
claimant [did] not make efforts to obtain evidence from her neighbour or any
others in her community who were aware of her allegations.”
[13]
The
Member concluded that “the claimant has not provided sufficient credible
evidence or trustworthy evidence to support the existence of her father; the
abuse she allegedly experienced under his care; and the failure of police to
provide her protection.”
[14]
When
a claimant retains a representative it is his or her duty to advise the client
as to what evidence will be required. In this case, there is no evidence that
Mr. Munro failed to so advise the applicant. There is also no evidence that any
of the documents the Member noted to be missing were available or could have
been obtained. The Court cannot find that Mr. Munro failed his client or was
negligent absent evidence that such documentary evidence was available and that
he failed to instruct his client to obtain it.
Failure to seek procedural
accommodation for the applicant
[15]
The
applicant submits that Mr. Munro “failed to make written or oral application to
declare the Applicant to be a vulnerable person and/or to reverse the order of
questioning pursuant to Guideline 8 and 7.” In light of the applicant’s life
of sexual abuse from a very young age by many men with the consent and direction
of her father, and given that her psychological report concluded that the
“traumatic events have left her devastated psychologically,” it is submitted
that a reasonably competent counsel would have made such an application.
Counsel might also have asked for a female member to preside at the hearing.
[16]
Mr.
Munro failed to seek any accommodation for his client. His conduct at the
hearing may raise questions as to whether he appreciated the Chairperson’s Guideline on Procedures with
Respect to Vulnerable Persons Appearing Before the IRB and, in particular,
Section 4 dealing with procedural accommodation.
[17]
On the first day of hearing, Member
McSweeney and Mr. Munro had the following exchange:
MEMBER: In terms of the procedures for
today, I’ve read the documents and I will be assessing the claim based on the
gender – Chairperson’s Guidelines on Gender. Counsel, other than that are
there any other accommodations required?
COUNSEL FOR CLAIMANT: I don’t understand
the question, can you repeat?
MEMBER: Other than me assessing the
claim based on the gender guidelines are there any other accommodations
required for the claimant?
COUNSEL FOR CLAIMANT: In terms of issues
you’re talking about?
MEMBER: We’re not even at issues. Any
accommodations required based on the claimant’s particular claim where she’s
alleging gender-based violence?
COUNSEL FOR CLAIMANT: Well the claim is
---
MEMBER: I’m just asking you do we have
to do anything different because the claimant is alleging gender-based
violence. Do we need to accommodate her in any way?
COUNSEL FOR CLAIMANT: No (inaudible).
MEMBER: Okay.
[18]
Notwithstanding
that Mr. Munro sought no accommodation for his client, on the second day of the
hearing Member McSweeney decided of his
own accord to proceed with reverse-order questioning by asking Mr. Munro to examine
his client before the Member asked his questions. Mr. Munro responded as follows:
“Normally the member goes first so you threw me off a bit. I’m not objecting.
I’m just getting ready because I was not prepared to go first.”
[19]
The
Chairperson’s Guideline is intended to assist vulnerable claimants in
presenting their evidence. The difficulties addressed are stated to be as
follows:
(a)
a person's vulnerability may affect memory and behaviour
and their ability to recount relevant events;
(b)
the vulnerable person may be suffering from symptoms that
have an impact on the consistency and coherence of their testimony;
(c)
vulnerable persons who fear persons in a position of
authority may associate those involved in the hearing process with the
authorities they fear;
(d)
a vulnerable person may be reluctant or unable to talk
about their experiences.
[20]
Generally
a court ought not to second-guess decisions made by counsel. Not every
claimant who appears from his or her narrative to be a vulnerable person takes
advantage of the Guidelines. The applicant does not mention the alleged
failure to seek this accommodation in her affidavit filed in support of this
application. The psychological report states that the applicant is “not
comfortable speaking about her past” and that she disclosed to the psychologist
for the first time some of the events of her life. On the other hand, there is
nothing in the report or elsewhere to suggest that the applicant’s alleged
vulnerability affects her memory or behaviour or leads to inconsistent or
incoherent testimony. Although the Member had credibility concerns with the
testimony of the applicant, there is nothing in the transcript of the hearing
that leads me to conclude on a balance of probabilities that Mr. Munro was
incompetent in failing to seek procedural accommodation for his client.
Mr. Munro’s conduct towards
Member McSweeney
[21]
The
focus of the applicant’s claim that her representative was incompetent relates
to events at and following the first day of hearing.
[22]
On
the first day of hearing the Member began his questioning of the applicant by
focusing on the psychological report dated only one day earlier and which had just
been filed. He asked the applicant whether she sought any mental health
support prior to June 3, 2010, when she saw the psychologist. She replied “No,
because I didn’t have any money or anything. I’m not working.” The Member
responded: “Mental health support is free in community-based agencies and with
a special card you can see a psychiatrist.” At that point Mr. Munro
interjected, objecting to the line of questioning and asserting that the Member
had not laid any foundation for it as he had not established whether the
applicant knew of these free services. He accused the Member of “playing
unfair” and said “you do that all the time.” Matters quickly deteriorated with
Mr. Munro making a number of intemperate statements directed at the Member and
his conduct, including the following:
Okay, and you’re not even following the
Chair Guidelines and I have to go on record.
…
From the start you have been hostile to
my client for no reasons. Very hostile …
…
Okay, you can get your question – I mean
if you continue I will remove my client from the hearing and ask to see the
manager because it is detrimental to my client’s wellbeing. It’s very
detrimental.
…
I want to file a motion at this point,
okay?
[Member: Go ahead, make your motion.]
One, I’m asking you to recuse yourself
from this hearing, you’re not – you’re being very unbiased [sic] and
hostile for some reason, I don’t know why. This client does not deserve it.
She’s here to state her case, you’re not giving her an opportunity; you’re
asking redundant questions in a manner that does not make any sense.
And there is no reason for you to be so
hostile to this client, no reason. She’s a girl – she’s an innocent lady who’s
sitting here, came down here. At the start of the hearing she went in to tell
how she – she had a gynaecological problem, yet you have no – from what I’ve
seen, I have Googled you on the internet, you have no medical training and you
went into probe on what her medical condition which is totally unethical.
Totally unethical. I’ve never heard a member do that in my life. You
understand me?
Why, you have your own reason, okay. And
in my opinion (a) you’re not fit to be a member and number two, you’re not fit
to hear this hearing and you should recuse yourself.
[23]
After
dismissing the recusal motion, Member McSweeney continued with his questioning
of the applicant; however, when he suggested that the applicant shared the
personal details of her assaults with a stranger (the psychologist), Mr. Munro
again objected saying that this was not a fair question. There was then a
brief exchange between Mr. Munro and the Member as to the line of questioning.
The applicant then began to cry. The Member had the following exchange with
the applicant:
BY MEMBER TO CLAIMANT, Continued: Can you
please explain to me why – do you want to continue today? You’re crying now,
your counsel is acting out. Do you want to continue today?
COUNSEL FOR CLAIMANT: No.
MEMBER: Please be quiet. I’m asking you
to be quiet. Do you want to continue today?
CLAIMANT: No.
MEMBER: Do you want to continue with
this counsel?
CLAIMANT: Yes, I do.
During the subsequent discussion of dates for
rescheduling Mr. Munro had the following exchange with the applicant, and then
the Member:
COUNSEL FOR CLAIMANT: Before Ms. Medica
– the member said something I want to explain to you what I’m going to do. I’m
going to write a letter (a) to the Board explaining what’s going on; ask them
to get the transcript of this hearing today; ask for this member to be removed
and if possible, I will go to the Federal Court to support it, okay?
CLAIMANT: Yes.
COUNSEL FOR CLAIMANT: This is
(inaudible) you aren’t the first person he does that with. I just want to let
you know that.
CLAIMANT: Okay.
COUNSEL FOR CLAIMANT: No member acts
like this. I’ve been doing this for 24 years, no member ---
MEMBER: Please do not throw
allegations. Put your allegations in writing. I will not accept those kinds
of allegations in my hearing.
COUNSEL FOR CLAIMANT: I will write to
the Board ---
MEMBER: Counsel, control yourself.
COUNSEL FOR CLAIMANT: Why don’t you do
the same thing?
Mr. Munro reiterated more than once that he would
be filing a motion to have Member McSweeney replaced as
the panel member hearing the claim. Dates were then finalized and the hearing was
adjourned.
[24]
In
my assessment, there was some merit to Mr. Munro’s concern that Member
McSweeney was unnecessarily direct and perhaps harsh with the applicant in his
questioning; it may well have been appropriate for counsel to intervene to
protect his client. However, the conduct of Mr. Munro in addressing this issue
was rude, unprofessional, and hostile. It appears to have negatively impacted
his client’s ability to continue and it most certainly interfered with the
proper conduct of the hearing.
[25]
I
find the conduct of Mr. Munro in this regard to fall outside the range of
“reasonable professional assistance.”
The failure to seek the removal
of the Member
[26]
The
applicant filed an affidavit in this application in which she attests that
following the hearing Mr. Munro “assured me that he would ensure that Member McSweeney would not hear my claim on the next
day of the hearing. He indicated that he would file some papers with the IRB to
have a different Member appointed to hear my claim.” She goes on to state that
this information relieved her “as I would not be comfortable with Member
McSweeney after [the first hearing day’s] events.”
[27]
Contrary
to the statements he made to the Member at the hearing and contrary to the
assurances he gave to his client, Mr. Munro took no steps to have Member McSweeney removed. The applicant was unaware of
this until the second day of hearing when she arrived to find Member McSweeney ready to hear her claim. She
describes her reaction as follows:
On August 26, 2010, when I arrived for my
second day of hearing, I was shocked to find out that Member McSweeney would be
hearing my claim. Mr. Munro arrived late and I was unable to ask him why,
despite his assurances, another Member had not been appointed. Mr. Munro and
Member McSweeney spoke privately and the hearing quickly commenced.
[28]
The
applicant was alone when she learned that Member
McSweeney
was continuing to preside at the hearing because Mr. Munro was late in arriving.
He had not previously informed her of his decision not to seek Member McSweeney’s
recusal. There are circumstances where counsel owes a duty to his or her client
to explain matters before the client learns of them with no warning; this was
one such circumstance.
[29]
The
private conversation between Mr. Munro and Member McSweeney
was at the request of Mr. Munro and was on the record. Mr. Munro spoke, in
part, of the impact his conduct on the previous hearing day had had on his
client, as follows:
What happened at the last hearing left my
client shattered. I have been in contact with her and her family since the
last hearing and I really – it hurt my heart. I will accept 90 percent of the
blame. … She suffered certain degrees of trauma after the last hearing, for
days after she was shattered. I owe her better; I think the Board owes her
more than that. …
[30]
In
my view, there was nothing untoward in Mr. Munro not following through on his
statement at the hearing that he would be seeking the Member’s removal. He
clearly reflected on his conduct on the first day of the hearing and made the
decision that it was he that was mostly at fault, not the Member.
[31]
However,
it is difficult to comprehend why Mr. Munro had no discussion with his client
prior to the second hearing day to inform her that he had not taken the
promised action and to inform her that Member
McSweeney
would continue to be the presiding member. This is all the more surprising
given that he was fully aware of the impact the first hearing day had on his
client – to use his own words, she was “shattered.”
[32]
In
her affidavit, the applicant states that she was “shocked” to find out that
Member McSweeney would be hearing her claim and that this impacted her testimony
on the second hearing date:
While I tried to concentrate on the
hearing, the events of June 9, 2010 lingered in my mind and I was fearful that
Member McSweeny [sic] would not believe my story despite its truth.
This feeling inhibited my ability to respond to his questions and I felt
nervous and afraid throughout the hearing.
[33]
I
find that Mr. Munro’s failure to inform his client prior to the second day of
the hearing of his decision not to seek the recusal of the Member – essentially
a failure to prepare her for the second day of hearing – fell outside the wide
range of behaviour reasonably expected of a competent representative.
Failure to provide
submissions
[34]
Towards
the end of the second day of hearing the Member questioned the applicant
regarding details in her psychological report that were not in her Port of
Entry Notes. A discussion between the Member and Mr. Munro followed which
ended with the Member saying: “I’m trying to clarify her responses because they
don’t make sense to me so far. So that is what I’m doing.” Mr. Munro
responds: “Okay. I’ll address it on submission and I’ll leave it there.” The
hearing ended and Mr. Munro was given a month, until September 28, 2010, to
provide written submissions on the applicant’s claim, including the point
mentioned above. He provided nothing. He did not seek an extension of time
and he did not indicate to the Board why he was making no submissions.
[35]
It
is impossible to say whether written submissions would have resulted in the
Member reaching a different conclusion; however, the very issue raised above
which Mr. Munro said he would address in submissions was clearly an issue that
troubled the Member and it was noted in the decision. I find that the failure
to make any submissions or to provide any explanation to the Board for not
doing so fell outside the wide range of reasonable professional assistance.
Summary
[36]
For
the reasons set out above, I am satisfied that the following acts or omissions constituted incompetence on the part
of Mr. Munro:
(a) his extremely offensive
conduct towards the Member on the first day of hearing;
(b) his failure to inform
his client that, contrary to his previous assurances, he had not sought the
removal of Member McSweeney and that Member McSweeney would therefore be
hearing the claim on the second day; and
(c) his failure to provide
written submissions following the hearing.
2. Did the
incompetence result in a miscarriage of justice?
[37]
The
respondent submits that the applicant “has not shown that there is a reasonable
probability that but for the conducts [sic] of previous counsel the
result of the original hearing would have been different.”
[38]
The
Board’s determination that the applicant was neither a Convention refugee nor a
person in need of protection was based on its credibility finding. The Board
stated: “Given the significant credibility concerns related to the claimant’s
overall testimony, the panel finds that there is no credible or trustworthy
evidence upon which it could have made a favourable decision.”
[39]
In
my view, the reliability of the Board’s credibility finding is compromised by
counsel’s incompetence. Mr. Munro’s attack on the Member’s conduct and
integrity and his failure to advise his client that the Member would not be
replaced affected her demeanour and distracted her from the task at hand: being
a forthright witness. She attests that she “felt nervous and afraid throughout
the hearing.”
[40]
I am
also of the view that the failure of Mr. Munro to provide any written
submissions, as he had undertaken to do, compromises the reliability of the
decision under review. In very similar circumstances this Court found that it
was incompetent of a representative not to file written submissions to the
Board on the issue of credibility when the representative had undertaken to do
so and was aware that credibility was a concern of the Board: Shirwa v
Canada (Minister of Employment and Immigration), [1993] FCJ No 1345 (TD).
In Shirwa Justice Denault found that the failure to provide written
submissions prejudiced the client in that he was “unable to fully demonstrate
his case before the tribunal.” In my view, this applicant has been similarly
disadvantaged.
[41]
The
applicant has filed a complaint with CSIC concerning Mr. Munro. The respondent
suggested that this was her remedy if her counsel was incompetent and that her
remedy is not to have a re-hearing of her claim. I disagree. If CSIC finds
Mr. Munro incompetent, that will be small comfort to the applicant who has lost
her claim for protection in Canada. Her complaint to the CSIC does nothing to address the
miscarriage of justice found here.
[42]
Justice
requires that the applicant’s claim for protection be sent back for a
re-hearing before a different Member. Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is
that: this application is allowed; the decision of the Board
is quashed; the applicant’s claim for Convention refugee status is referred
back to the Board to be determined after a full hearing by a different member;
and no question is certified.
"Russel W.
Zinn"
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