Docket: IMM-1432-11
Citation: 2011 FC 1234
Ottawa, Ontario, October 31,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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DALAL EL KAISSI
(A.K.A. DALAL FAHED
EL KAISSI.), AND
KHEIREDDINE KADDOURA; AND
CHAYMAA RIM KADOOURA. NASSIMA KADDOURA,
FAHED KADOOURA, (A.K.A. FAHED KHEIREDDI KADDOURA.),
KHALED KADDOURA. (A.K.A. KHALED
KHEIREDD KADOOURA), AND KAMEL KADDOURA. (A.K.A. KAMEL KHEIREDDDI KADDOURA.),
BY THEIR LITIGATION GUARDIAN DALAL EL KAISSI
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Applicants
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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 JUDGMENT AND
JUDGMENT
[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 February 11,
2011. The Board determined that the Applicants were not Convention refugees or
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is allowed.
I. Facts
[3]
The
Applicants (Dalal El Kaissi and Kheireddine Kaddoura as well as their five
children, Chaymaa Rim Kadooura, Nassima Kaddoura, Fahed Kadooura, Khaled
Kaddoura and Kamel Kaddoura) are seeking protection based on threats made to
the father, Kheireddine Kaddoura (the Principal Applicant). In Lebanon, Hezbollah
suspects that the Principal Applicant is an Israeli collaborator. The
Applicants are citizens of Lebanon, with the exception of
Fahed Kadooura and Khaled Kaddoura who are citizens of the United States of
America (US).
[4]
The
Principal Applicant owned a summer house in Al Hibaria, a village under Israeli
military occupation. In 1999, two masked men came to the summer home claiming
to be fleeing the Israelis and looking for a place to hide. Concerned that his
home would be confiscated by the Israelis, the Principal Applicant refused and
told them he would inform the officer who patrolled the area. The men insisted
they would kill his family if he did not help them and accused him of
collaborating with the Israelis. When the men left, they told the Principal
Applicant not to report what happened.
[5]
In
2000, Hezbollah took control of the area around the summer home and began
looking for collaborators. The family left the summer home but continued to be
visited and threatened by Hezbollah. As a result, they fled to Benin.
[6]
The
Principal Applicant also visited the US to see children from a
previous marriage in 2005. At that time, he learned that his brother had
been detained and interrogated to determine his whereabouts on a recent return
to Lebanon. The
Principal Applicant also claims that a warrant for his arrest was issued in
2007.
[7]
Thereafter,
the family decided to remain in the US. Although they arrived
in the country in 2005, no asylum claim was made until 2007 or 2008. The
Principal Applicant insists that he initially met with counsellors or
paralegals who advised him that making a claim would not be helpful. He first
spoke with a US asylum
attorney just prior to making his claim. His claim was, however, denied by US
authorities and he did not file an appeal.
[8]
In
2009, the Principal Applicant and his family came to Canada and filed
refugee claims at the port of entry.
II. Decision
Under Review
[9]
The
Board determined that there was insufficient credible evidence of a serious
possibility the Applicants would face persecution or be subjected to a risk to
life or of cruel and unusual punishment on returning to Lebanon. Of
particular concern to the Board was the lack of corroborating documentation of
recent threats to the Principal Applicant. A copy of an alleged arrest warrant
issued in 2007 was not presented as part of the claim.
[10]
Moreover,
the Board did not consider the Principal Applicant’s behaviour consistent with
a true fear of returning to Lebanon. His US visa expired
six months after his arrival in 2005 and he delayed making a refugee claim
until 2007 or 2008. Despite the Principal Applicant’s insistence that he was
initially advised against making a claim and that he thought his son would be
sponsoring him, the Board found that he was not timely or purposeful in making
his US asylum
claim. It was also noted that the Principal Applicant left the US without
making an appeal.
[11]
The
Principal Applicant was found to have re-availed himself of state protection in
Lebanon. He visited
the US in 2000 and
2004. Following the first visit, he returned to his country of nationality,
claiming that he did not want to be separated from his family. The Board found
that the decision to return to the country where he would be at risk suggests
he did not have a subjective fear.
III. Issues
[12]
This
application raises the following issues:
(a) Was
there a breach of natural justice or procedural fairness arising from the
incompetence of counsel in failing to provide a letter confirming the issuance
of an arrest warrant for the Principal Applicant?
(b) Was
the Board’s assessment of the Principal Applicant’s subjective fear of
returning to Lebanon reasonable?
(c) Was it reasonable for the Board
to find that the Principal Applicant re-availed to Lebanon?
IV. Standard
of Review
[13]
Questions
of procedural fairness are reviewed on a standard of correctness (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
[14]
By
contrast, questions of fact, discretion and policy as well as questions where
the legal issues cannot be easily separated from the factual issues generally
attract a standard of reasonableness (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 51). As articulated at paragraph 47 in Dunsmuir,
reasonableness is “concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process” as well as
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
V. Analysis
Issue
A: Procedural Fairness
[15]
It
is well recognized that incompetence of counsel can give rise to a breach of
procedural fairness that would justify quashing a decision. The Supreme Court
of Canada has stated that “it must be established, first, that counsel’s
acts or omissions constituted incompetence and second, that a miscarriage of
justice resulted” (R v GDB, 2000 SCC 22, 2000 Carswell Alta 348 at para 26).
[16]
In
the refugee context, similar guidance is provided by the jurisprudence of this
Court. A recent decision of Justice Paul Crampton, Memari v Canada (Minister of
Citizenship and Immigration), 2010 FC 1196, 2010 CarswellNat 4557 at
para 36, summarized the relevant considerations:
[36] However, in proceedings under
the IRPA, the incompetence of counsel will only constitute a breach of natural
justice in “extraordinary circumstances” (Huynh v. Minister of Employment
and Immigration, (1993), 65 F.T.R. 11 at 15 (T.D.)). With respect to the
performance component, at a minimum, “the incompetence or negligence of the
applicant’s representative [must be] sufficiently specific and clearly
supported by the evidence” (Shirwa, above, at 60). With respect to
the prejudice component, the Court must be satisfied that a miscarriage of
justice resulted. Consistent with the extraordinary nature of this ground of
challenge, the performance component must be exceptional and the miscarriage of
justice component must be manifested in procedural unfairness, the reliability
of the trial result having been compromised, or another readily apparent form.
[17]
Justice
Crampton proceeded to find that the incompetence of counsel as a result of
illness, considered cumulatively, led to unfairness. In particular, the
failure of counsel to produce an amended Personal Information Form (PIF) led
the Board to find inconsistencies in the claimant’s story.
[18]
Based
on the “extraordinary circumstances” that arose in the present case, I also
find that incompetence of counsel amounted to a breach of procedural fairness.
There is evidence that the performance of the Principal Applicant’s counsel was
deficient. He did not assist the Principal Applicant in filling out his PIF
and left this to his assistant. There was no meeting with the Principal Applicant
until two days before the hearing where it was indicated that the materials
from the Principal Applicant’s US asylum claim would be made available. Perhaps
most significant, however, is the failure to produce the letter referring to
the Principal Applicant’s arrest warrant that ultimately proved critical to the
Board’s assessment of the claim. The only explanation counsel was able to
provide at the hearing for these issues was that he was moving offices at the
time and there was some confusion regarding files.
[19]
A
review of the Board’s decision also makes clear that the Principal Applicant
was prejudiced and a miscarriage of justice resulted. The Board reached a
critical credibility finding as to the lack of objective fear based on the
Principal Applicant’s failure to produce a letter confirming the 2007 arrest
warrant. This finding served as a basis for the remainder of the decision.
The Principal Applicant stated in oral testimony, and his counsel confirmed,
that he thought that information would be available in his file.
[20]
The
Respondent suggests that while it appears former counsel was partly to blame,
the Principal Applicant also had a role to play, particularly in failing to
include the document on his PIF. The law is clear that negligence of counsel
should not cause an applicant, who has acted with care, to suffer (see for
example Jane Doe v Canada (Minister of
Citizenship and Immigration), 2010 FC 285, 2010 CarswellNat 1220
at para 28). I see no reason, however, to find that the Applicants had not
acted with care in this case. By the counsel’s own acknowledgement, the Principal
Applicant believed the letter would be presented as part of the package of
documents related to his US asylum claim.
[21]
A
breach of procedural fairness inevitably occurs where the incompetence of
counsel prevents a refugee claimant from presenting critical evidence to
satisfy the Board and leads to negative credibility findings that permeate the
entire decision.
Issue
B: Subjective Fear
[22]
The
Principal Applicant submits that it was unreasonable for the Board to rely on
the delay in making a US claim and, secondarily, the failure to
pursue an appeal before coming to Canada to find that his
behaviour was inconsistent with someone having a subjective fear of persecution
or risk.
[23]
He
insists that he provided a suitable explanation for the delay. He believed his
son could sponsor him. Pointing to the decision of Papsouev v Canada
(Minister of Citizenship and Immigration), 168 FTR 99, [1999] FCJ No 769 at
para 14 where the Court found that a delay in pursuing a refugee claim could be
explained by efforts to initially obtain permanent resident visas, he claims
the conclusion of the Board in his case was similarly unreasonable. He also
states that he initially relied on the advice of a paralegal that it would not
be helpful to pursue a claim.
[24]
In
relation to his decision not to pursue an appeal in the US before coming to Canada, he explains
that he was left in a difficult situation as he had young children to care for
but was unable to drive or obtain basic utilities because he had no social
insurance number. He also suggests that further delays would jeopardize any
ability to make a claim in Canada.
[25]
However,
the Respondent contends that it was reasonable for the Board to find that his
behaviour was inconsistent with someone who had a genuine fear for their lives
or safety. They note that “[t]he lack of evidence going to the subjective
element of the claim is a fatal flaw which in and of itself warrants dismissal
of the claim, since both elements of the refugee definition--subjective and
objective--must be met” (Kamana v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 1695, 94 ACWS (3d) 338 at para 10).
[26]
The
Respondent insists that the Board considered the explanations provided by the
Applicants but nonetheless found his actions inconsistent with a true fear. He
did not make a claim at the earliest opportunity to do so as this Court had
found fatal in the past (see Riadinskaia v Canada (Minister of
Citizenship and Immigration), [2001] FCJ No 30, 102 ACWS (3d) 967 at para 7).
[27]
I
must find that the Board’s assessment of the delay in pursuing a US claim and
failure to consider an appeal was reasonable. It is for the Board to decide
“on the basis of the evidence before and its assessment of the claimant, the
significance of delay in the case before it” (Canada (Minister of
Citizenship and Immigration) v Sivalingam-Yogarajah, 2001 FCT 1018, [2001]
FCJ No 1414 at para 18). While the Board did not give the Principal Applicant’s
explanations the weight he would have preferred, this evidence was properly
considered and balanced against the fact that he did not bring his refugee
claim forward until questions were raised by US authorities. It was reasonably
open to the Board to doubt his subjective fear given the inconsistent
behaviour.
Issue
C: Re-Availment
[28]
This
Court has confirmed that an individual returning to a country where they fear
persecution makes the existence of that fear unlikely (Kabengele v Canada (Minister of
Citizenship and Immigration) (2000), 197 FTR 73, 2000 CarswellNat 4335
at para 41). Regardless, it is also acknowledged that “re-availment” is not a
temporary visit but requires an intention to permanently reside in that country
before physical presence will negate refugee status (Camargo v Canada
(Minister of Citizenship and Immigration), 2003 FC 1434, [2003] FCJ No 1830
at para 35).
[29]
An
individual may be compelled to return to the country for reasons seemingly
beyond their control (such as the birth of child, see Kanji v Canada
(Minister of Citizenship and Immigration), [1997] FCJ No 374, 70 ACWS (3d)
525; or to care for a sick mother, see Shanmugarajah v Canada (Minister of
Employment and Immigration), [1992] FCJ No 583, 34 ACWS (3d) 828 (FCA)).
Absent an explanation or pressing need, however, re-availment is considered
voluntary and calls the individual’s subjective fear into question. For
example, this Court has found that returning on a holiday or to investigate
business opportunities would not constitute having been compelled to return
(see Shaikh v Canada (Minister of Citizenship and Immigration), 2005 FC
74, [2005] FCJ No 87; Ali v Canada (Minister of Employment and
Immigration), 112 FTR 9, [1996] FCJ No 558).
[30]
As
a consequence, the primary issue that I must consider is whether it was
unreasonable for the Board to find that the Principal Applicant re-availed to Lebanon in the sense
that he was truly compelled to return to Lebanon in 2000 without making a
refugee claim in the US. He insists that his motivation for
returning was directly related to the risk he faced because he was attempting
to get his family out of Lebanon and to Benin.
[31]
As
the Respondent highlights, however, the Principal Applicant’s testimony
referred to concern that a refugee claim would take a long time and he did not
want to be away from his family. It was a voluntary choice to avoid separation
from the family.
[32]
I
am inclined to agree with the Respondent. Absent some additional compelling
reason that his temporary absence from the family would make him unable to
pursue a claim, it was open to the Board to draw a negative inference from his
re-availment to Lebanon. If the Principal Applicant had a genuine and
immediate threat to his life with no intention of remaining in Lebanon, it is
reasonable to expect him to make a claim at the earliest opportunity and not
return to the country where he feared persecution or risk. This would more
effectively address the threat to himself and consequently his family.
VI. Conclusion
[33]
The
incompetence of counsel resulted in a breach of procedural fairness. Despite
the reasonableness of the remainder of the decision regarding subjective fear
and re-availment, the negative credibility finding based on the failure to
produce a document and establish objective fear at the outset prejudiced the Principal
Applicant’s claim. In my opinion, it is far from certain that a reconstituted
Board would necessarily reach the same overall results. This is sufficient to
warrant reconsideration by a reconstituted panel of the Board.
[34]
Accordingly,
this application for judicial review is allowed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
“ D.
G. Near ”
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