Date: 20110407
Docket: IMM-4892-10
Citation: 2011 FC 438
Vancouver,
British Columbia, April 7, 2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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PAKEERATHAN THAMOTHARAMPILLAI
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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 AND
ORDER
[1]
Lord
Denning once said:
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 [Doyle v Olby (Ironmongers) Ltd, [1969] 2 All ER 119 at page 121].
So it is in this case. What went wrong is
that the immigration consultant Mr. Thamotharampillai hired to make
representations with respect to a Pre-Removal Risk Assessment (PRRA) failed to
make any submissions at all.
[2]
Mr.
Thamotharampillai is a Tamil from Sri Lanka. He is inadmissible to Canada for serious criminality
arising from a conviction here for possession of a narcotic for the purposes of trafficking.
He was sentenced to a term of imprisonment of at least two years. In accordance
with section 112(3) of the Immigration and Refugee Protection Act
(IRPA), he was thus disentitled to seek refugee protection. He was, however,
entitled to and demanded a PRRA, not as a failed refugee, but rather as a
person in need of international protection under section 97 of IRPA. The issue
is whether, on the balance of probabilities, he would be subjected to a danger,
believed on substantial grounds to exist, of torture or to a risk to his life
or to a risk of cruel and unusual treatment or punishment in Sri Lanka.
[3]
In
this assessment, he was only entitled to present new evidence, as that term is
defined in IRPA. Since he had been here for some time, in December 2009
the Canadian Border Service Agency delivered to him a package containing current
country information. He was given a delay to file representations,
arguments and to submit evidence.
[4]
As
he had been using an immigration consultant throughout the process, a
consultant who may have passed himself off as a lawyer, Mr. Thamotharampillai
instructed him to make appropriate submissions and to submit further evidence
in the form of other country reports.
[5]
The
consultant did absolutely nothing. It is not surprising therefore that the
assessment was negative. The Minister’s Delegate found that the civil war in Sri Lanka had ended
and that country conditions had so changed that Mr. Thamotharampillai, despite his
subjective fear, was not objectively at risk of torture, or at risk to his life
or at risk of cruel and unusual treatment or punishment were he to return to Sri Lanka.
[6]
In
this judicial review of that decision Mr. Thamotharampillai raises a number of
issues. However, it is only necessary to consider one. In my opinion, he was
denied natural justice because he was represented by an incompetent immigration
consultant. Had the consultant been competent and done his duty, the decision
may well have been different.
[7]
Mr.
Thamotharampillai had the option of representing himself (not always a good
idea) or engaging an “authorized representative.” In accordance with
sections 2 and 13.1(1) of the Immigration and Refugee Protection Regulations
an “authorized representative” is a lawyer, notary or a member of the
Canadian Society of Immigration Consultants. Mr. Thamotharampillai’s
representative is a member of that latter organization, which enjoys special
status. For some purposes, it is a federal board or tribunal, as explained in Onuschak
v Canadian Society of Immigration, 2009 FC 1135, 357 FTR 22.
[8]
Among
other things, the Society has disciplinary powers. Mr. Thamotharampillai has
filed a complaint with respect to his immigration consultant’s
behaviour. That complaint is still outstanding.
[9]
In
order to succeed in this judicial review, the applicant must establish the
facts on which the claim of incompetence is based, that the consultant was
incompetent, and that the incompetence resulted in a miscarriage of justice (Robles
v Canada (Minister of Citizenship and Immigration), 2003 FCT 374, 2 Admin
LR (4th) 315, and Hallatt v Canada, 2004 FCA 104, [2004] 2 CTC 313).
[10]
The
first two elements are not in issue. The fact of the matter is that the
immigration consultant failed to carry out his instructions to file
representations. The only question is whether this incompetence resulted in a
miscarriage of justice. It is common ground that it is not enough to submit
that a competent consultant would have filed further representations. The issue
is whether those representations would have had any effect on the Minister’s
Delegate’s decision. Mr. Thamotharampillai submits that the onus upon him
has been discharged if he has made out a fairly arguable case. The Minister
submits there has to be a reasonable probability that this material would have
made a difference.
[11]
There
is a distinction to be drawn between malfeasance and nonfeasance. As a general
rule, a party is bound by the actions of his or her agent. However, there are
times when a lawyer or authorized representative has failed to mail a completed
humanitarian and compassionate application, or has failed to inform the Board
of the applicant’s change of address. This is a different category all
together, and the category which is applicable in this instance. A number of
the cases are reviewed in Chukwudebe v Canada (Minister of Citizenship and Immigration), 2009 FC 211, 79 Imm
LR (3d) 298.
[12]
Mr.
Thamotharampillai’s point is that had his consultant done what he should have
done, he would certainly have drawn the following country documentation to
the decision maker’s attention, as he has to this Court:
a.
Amnesty International,
“Unlock the Camps in Sri
Lanka: Safety and Dignity
for the displaced now – A Briefing Paper” (10 August 2009) ASA 37/016/2009;
b.
United Nations High
Commissioner for Refugees, “UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka” (5 July 2010) HRC/EG/SLK/10/03;
c.
Australia: Refugee
Review Tribunal, Sri
Lanka (3 April 2009);
d.
Australia: Refugee
Review Tribunal, Sri
Lanka (31 August 2006);
e.
International Crisis
Group, “War Crimes in Sri Lanka” (17 May 2010) Asia
Report No 191;
f.
Human Rights Watch, “Legal
Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka” (2 February 2010);
g.
Amnesty
International, “Sri Lanka urged to ensure safety of detained
former asylum-seekers” (3 September 2010);
h.
United States
Department of State, “2009 Country Reports on Human Rights Practices – Sri Lanka” (11 March 2010);
i.
Amnesty
International, “Australia asylum suspension could harm world’s
most vulnerable” (9 April 2010);
j.
Immigration and
Refugee Board of Canada, “Sri Lanka: Liberation Tigers of Tamil Eelam (LTTE)
activity in Sri Lanka, including arrests, whether LTTE members have been
responsible for extortion, disappearances or bombings since the government
defeated the LTTE, and whether the LTTE has the capacity to regroup within Sri
Lanka (May 2009 – January 2010)” (28 January 2010);
k.
International Crisis
Group, “Sri Lanka: A Bitter Peace” (11 January 2010) Asia Briefing No 99; and
l.
Amnesty
International, “Arrest of Sri Lankan opposition leader escalates post-election
repression” (9 February 2010).
[13]
I
cannot agree with the Minister’s balance of probabilities submission. Certainly
if one fails to file a statement of defence in an action or to appear in
an application in time, it is incumbent to show that there may be some merit in
the position that should have been advanced earlier. The burden is to
establish a fairly arguable case, not to establish on the balance of
probabilities that one would be successful. Furthermore, the consideration of
country conditions and the weight to be given to various reports lies within
the province of the Minister’s Delegate, whose decision is not to be set aside
on judicial review unless unreasonable.
[14]
There
is a rebuttable presumption that the Minister’s Delegate has considered the
entire record. In this case, it would appear that the delegate not only
considered the material he sent to Mr. Thamotharampillai, but also
subsequent reports. It seems to me that if I give weight to the evidence which
would have been before him had the consultant done his duty, other to find that
the material raises a fairly arguable case, I would be stepping beyond the
confines of a judicial review.
[15]
Mr.
Thamotharampillai’s counsel
has certainly pointed out some material which could well have made a
difference.
The
applicant had been suspected of having links with the Tamil Tigers, which may put
him at risk as reported in Human Rights Watch, “Legal Limbo: The Uncertain Fate of
Detained LTTE Suspects in Sri Lanka” (2 February 2010). In United Nations High
Commissioner for Refugees, “UNHCR Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka” (5 July 2010)
HRC/EG/SLK/10/03, it is said:
In
light of the foregoing, persons suspected of having links with the LTTE may be
at risk on the grounds of membership of a particular social group. Claims by
persons suspected of having links with the LTTE may, however, give rise to the
need to examine possible exclusion from refugee status.
[16]
Although
this is not a case of procedural unfairness, since no criticism whatsoever can
be levied at the decision maker, procedural unfairness is only one aspect of
natural justice. We are entitled to have a fair opportunity to make our case,
or our defence, before an unbiased decision maker. The audi alterem partem
aspect of natural justice requires that Mr. Thamotharampillai have a fair
opportunity to fully present his case.
[17]
Although
Mr. Justice Le Dain was speaking of procedural fairness, I think the following
passage from the Supreme Court’s decision in Cardinal v Kent Institution,
[1985] 2 S.C.R. 643, 24 DLR (4th) 44, at paragraph 23, is à propos:
[…] The right to a fair hearing must be regarded as an
independent, unqualified right which finds its essential justification in the
sense of procedural justice which any person affected by an administrative
decision is entitled to have. It is not for a court to deny that right and
sense of justice on the basis of speculation as to what the result might have
been had there been a hearing.
[18]
Findings
of fact with respect to country conditions fall within the jurisdiction of the
Minister’s Delegate, not the Court. I will not speculate as to what the result
would have been had the material placed before me been placed before him,
other than to find that the material establishes a fairly arguable case.
CERTIFIED QUESTION
[19]
Counsel
for the Minister submits that I should certify the following serious question
of general importance in order to support an appeal:
Where, in the context of a risk
assessment, counsel fails to provide further documentation or supplementary
submissions in response to the disclosure of updated country condition
documents, must an applicant establish a reasonable probability that the result
would have been different but for counsel’s failure in order to demonstrate a
reviewable error based on the incompetence of counsel?
[20]
Much
is made of the fact that Mr. Thamotharampillai had been given until 4 January 2010 to
make further submissions and to present new evidence. The Human Rights Watch and
the UNHCR reports, referred to above, post-date that delay, but pre-date the
PRRA decision which was delivered on 14 July 2010. Thus, no matter how
competent the counsel, the material relied upon could not have been submitted.
[21]
There
are two answers to these submissions. The first is competent counsel should
bring to the attention of a decision maker relevant material which has been
issued after a hearing but before the decision was made. The second is that the
Minister’s Delegate himself also reviewed material published subsequent to the delay
he had given Mr. Thamotharampillai.
In particular, he states that he reviewed an UHNCR article dated 27 April 1010.
In fact, this gave rise to the second ground for judicial review, i.e. that
Mr. Thamotharampillai
had not been given an opportunity to respond. This raises the dilemma posed by Mancia
v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461, [1998] FCJ No 565
(QL) (FCA). On the one hand, if a federal tribunal is to rely on extrinsic
evidence an opportunity must be given to the applicant to respond thereto. On
the other hand, it is permissible for a decision maker to rely upon documents
from public sources in relation to general country conditions which need not be
disclosed unless they are novel and significant and evidence changes that may
affect the decision. The point I wish to make, however, is that in this
particular case, having unilaterally decided to consider new material, the
Minister’s Delegate could hardly have denied Mr. Thamotharampillai the
opportunity to submit post-hearing material.
[22]
In
Canada (Minister of Citizenship and Immigration) v Liyanagamage (1994),
176 NR 4, [1994] FCJ No 1637 (QL), Mr. Justice Décary, speaking for the Court
of Appeal, stated that in order to be certified a question must not only be
determinative of an appeal, but also transcend the interests of the immediate
parties to the litigation and contemplate issues of broad significance or
general application.
[23]
In
my opinion, this case is too fact-specific to support a certified question. The
miscarriage of justice was that in this particular case the decision maker was
bound to consider the material competent counsel would have submitted before
the decision was rendered. There is a fairly arguable case to be made that
based on such a record the decision may well have been different. That is the
miscarriage of justice in this particular case. It is not necessary to
establish on the balance of probabilities that the result would have been
different.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
judicial review is granted.
2.
The
decision is quashed and the matter is remitted to a different Minister’s Delegate
for redetermination.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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