Docket: IMM-6318-10
Citation: 2011 FC 1367
Ottawa, Ontario, November 25, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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WYCLIFF CHRISTBELL MWESIGWA
(a.k.a WYCLIFF CHRISTB MWESIGWA)
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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 JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks to set aside a decision of the Refugee Protection Division of
the Immigration and Refugee Board of Canada (the Board), dated September 24, 2010,
which found him to be neither a Convention refugee nor a person in need of
protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA). The principal
ground of argument is that the Board breached the principles of natural justice
when it declined his request for an adjournment in order that he might obtain
and instruct counsel. As a secondary ground, the applicant contends that the
Board erred in finding that there was no credible basis for his claim that he faced
persecution in Uganda. For the reasons that follow, the application
for judicial review is dismissed.
The Facts
[2]
The
applicant left Uganda in 1999 and entered the United States (U.S.)
under his true name using a Ugandan passport. In 2000, he made an asylum claim
alleging that he was a citizen of Rwanda and a fear of
persecution based on his life and experiences in Rwanda. His claim
in the U.S. was accepted and he obtained permanent resident status in the U.S. on that
basis.
[3]
After
living in the U.S. for nine
years, the U.S. Bureau of Citizenship and Immigration Services notified the
applicant that it had obtained information that he was not a citizen of Rwanda, as he had
claimed. The applicant was summoned to appear at an asylum revocation hearing on
February 21, 2008. In response, the applicant requested a 90 day adjournment
of the hearing to produce documents then departed the U.S. for Canada and did not
return.
[4]
The
applicant filed a refugee claim upon his arrival in Canada. His Personal
Information Form (PIF) was, as in the U.S., based on a fabricated Rwandan
identity. The applicant retained counsel to represent him at his refugee
hearing, which was ultimately scheduled for September 23, 2010.
[5]
Three
months before the hearing, on June 23, 2010, the Minister of Citizenship and
Immigration Canada (the Minister) notified the applicant that he intended to
intervene in the hearing. The Minister advised that information had been
obtained from the U.S. and Ugandan governments confirming the applicant’s
identity as a Ugandan. The Minister’s disclosure included a statement from the
U.S. Department of Homeland Security noting that a Notice to Appear at an
asylum revocation hearing had been issued to the applicant.
[6]
Two
weeks later, on July 6, 2010 the applicant’s former counsel withdrew as counsel
of record.
[7]
The
refugee hearing was held on September 23, 2010. The applicant testified that he
spoke with two lawyers prior to the hearing but that they did not have time to
represent him. He could not recall their names. On the eve of his refugee
hearing however he found an immigration consultant who told him he could not
represent him on such short notice but advised him to appear and request a 30
day adjournment. The applicant followed this advice and requested a 30 day
adjournment in order to obtain and instruct counsel.
The Decision Under Review
[8]
The
Board denied the request for an adjournment on the grounds that the applicant
had more than two months to obtain counsel and in approaching only two lawyers,
did not demonstrate a serious effort to proceed on the day of the hearing. The
Board also found that granting the request would unreasonably delay adjudication
of the applicant’s claim.
[9]
It
was only after the Board rejected the request for an adjournment that the
applicant conceded that his PIF was almost entirely untruthful, based as it was
on the applicant’s false identity as a Rwandan. It contained false information
with respect to the applicant’s place of birth, nationality, ethnicity, first
language, his alleged employment and education in Rwanda and false
information regarding his arrest and detention by Rwandan authorities.
[10]
The
Board concluded that the applicant was still a permanent resident of the U.S.
and, in consequence, was excluded from the refugee protection process by virtue
of section 98 of the IRPA, which incorporates Article 1E of the United
Nations’ Convention Relating to the Status of Refugees, [1969] Can
TS No 6 (the Convention) into Canadian law. In reaching this conclusion,
the Board relied on the applicant’s U.S. Refugee Travel Document which
identified him as a U.S. permanent resident, valid until January 31,
2016, and his U.S. permanent
resident card. The applicant testified that these were both genuine documents
and that he had relied on them to gain admission as a temporary resident in
Canada at Toronto’s Pearson International
Airport in 2008.
The Board asked the applicant whether he had any evidence that a deportation
order had been issued against him. The applicant replied that he had no such
evidence. The Board concluded that the applicant held permanent resident
status in the U.S.
[11]
The
Board’s finding that the applicant was a permanent resident of the U.S. and
thus precluded from refugee protection in Canada was
sufficient to dispose of the matter before it. Nevertheless, the Board continued
and examined the substance of the applicant’s claim. The Board found that the
applicant had not established his identity as a Ugandan citizen and that, in
any event, there was no credible basis to his claim of risk of persecution.
[12]
The
applicant did not provide any evidence to corroborate either his identity as a Ugandan
citizen or the persecution he alleged he faced in Uganda. The Board
concluded that the only evidence on the issue of persecution was the
applicant’s uncorroborated testimony, which was lacking in meaningful precision
or detail.
[13]
The
Board gave no weight to the applicant’s testimony about his identity or the events
said to give rise to his persecution in Uganda. The Board
noted that the applicant had misrepresented his identity in both Canada and the U.S. for a period
of 10 years and, up until the June 23, 2010 disclosure by the Minister and the
denial of the adjournment, seemed prepared to continue to do so. The Board
noted that the applicant’s “change of heart appears to have come about only
subsequent to the disclosure of the Minister of June 23, 2010”. As the applicant
did not introduce any evidence to prove his identity or nationality as a
Ugandan, the Board also concluded that the applicant had not discharged his
burden of establishing his identity.
The Issues
[14]
As
noted, the crux of the applicant’s argument is that the Board erred by refusing
to grant his request for an adjournment to obtain counsel. Issues of
procedural fairness are to be reviewed on a correctness standard, but whether
the Board erred in its assessment of the evidence of the risk of persecution,
the applicant’s identity is reviewed on a reasonableness standard.
Misconduct Disentitling
the Applicant to Relief
[15]
The
remedies of certiorari, mandamus prohibition, quo warranto
are, in origin and substance, extraordinary and discretionary. They are
extraordinary in that the decision of the tribunal, board or individual
lawfully mandated to make the decision is set aside by the Court. They are discretionary
in that the right to anyone of them may be denied for reasons including
prematurity, mootness, waiver, impermissible collateral attack,
conduct, the existence of an alternate remedy, or on the basis of a
broader assessment of the balance of convenience between the parties. This common
law principle is reflected in section 18.1(3) of the Federal Courts Act (RSC,
1985, c F-7) which provides that the Court may, on application,
grant relief. The Supreme Court of Canada has observed that “[t]he use of
permissive, as opposed to mandatory, language in s. 18.1(3) preserves the
traditionally discretionary nature of judicial review”: Canadian Pacific Ltd
v Matsqui Indian Band, [1995] 1 S.C.R. 3, para 31. In Mining Watch Canada
v Canada (Fisheries
and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at para 52 the Supreme Court of
Canada affirmed
that:
…the fact that an appellant would
otherwise be entitled to a remedy does not alter the fact that the court has
the power to exercise its discretion not to grant such a remedy, or at least
not the entire remedy sought. However, because such discretionary power may
make inroads upon the rule of law, it must be exercised with the greatest care.
[16]
More
recently, the Court of Appeal reviewed the long antecedence of this principle
in Canadian jurisprudence in Canada (Border Services
Agency) v C.B. Powell Limited, 2010 FCA 61.
[17]
In
Canada (Minister of
Citizenship and Immigration) v Thanabalasingham, [2006] FCA 14, the
Federal Court of Appeal canvassed the discretionary nature of prerogative
relief and outlined the considerations that should inform the exercise of
discretion to withhold relief that might otherwise be forthcoming. After
stating the principle that “… if satisfied that an applicant has lied, or is
otherwise guilty of misconduct, a reviewing court may dismiss the application
without proceeding to determine the merits or, even though having found
reviewable error, decline to grant relief”, Evans JA, writing for the Court,
continued:
In exercising its discretion, the Court
should attempt to strike a balance between, on the one hand, maintaining the
integrity of and preventing the abuse of judicial and administrative processes,
and, on the other, the public interest in ensuring the lawful conduct of
government and the protection of fundamental human rights. The factors to be
taken into account in this exercise include: the seriousness of the applicant's
misconduct and the extent to which it undermines the proceeding in question,
the need to deter others from similar conduct, the nature of the alleged
administrative unlawfulness and the apparent strength of the case, the
importance of the individual rights affected and the likely impact upon the
applicant if the administrative action impugned is allowed to stand.
[18]
The
first two considerations identified by the Court of Appeal, the seriousness of
the misconduct and its materiality or nexus to the proceedings, are acutely
applicable in this case. The immigration and refugee system depends, for its
effective and principled operation, on forthright, comprehensive and truthful
testimony from those who seek entry to Canada. The work
of the Board, the Federal Courts and public confidence in the immigration and
refugee system is not enhanced by according discretionary relief to those who advance
a claim through fabrication, half-truths and lies. In consequence, prerogative
relief is discretionary and may be refused where the applicant has engaged in
misconduct, such that to grant an equitable or prerogative remedy would
undermine the Court’s process or bring the administration of justice into
disrepute.
[19]
For
over a decade the applicant deceived U.S. and Canadian
immigration authorities as to the true facts as to his identity and
circumstances of his claim for protection under the Convention.
The deceit permeated all aspects of his claim. He conceded that he lied as to
his place of birth, nationality, ethnicity, first language, employment and
education. He conceded that he fabricated the story of his arrest and detention
by Rwandan authorities. It was only when the truth was later discovered by the
U.S. government,
transmitted to the Minister (of Citizenship and Immigration) who subsequently
indicated an intention to rely it, and his adjournment request denied,
that the applicant finally chose to tell the truth.
[20]
The
applicant’s misconduct was pervasive, persistent and deliberate and had a
direct and material nexus to the adjudicative process in issue. To grant this
application for judicial review would in effect, reward the applicant for his
conduct and erode public confidence in the Canadian refugee determination
process.
[21]
The
discretion to dismiss an application on discretionary grounds has to be
carefully exercised, as the supervisory jurisdiction of superior courts is
directed to ensuring that decisions are made in accordance with the law, Evans
JA, in Thanabalasingham identified several criteria that should inform
the exercise of discretion. I have already discussed the seriousness of the
misconduct, its materiality to the issue to be determined, and the importance
of preventing abuse of administrative process. I turn now to the nature of the
alleged administrative unlawfulness and the apparent strength of the case.
This necessitates and analysis of the merits of the case, as it provides
further content and context to the decision to dismiss this application.
Failure to grant the adjournment request
[22]
The
applicant argues that exclusion is one of the more complex issues that confronts
a Board. Exclusion requires a determination whether the claimant enjoys the
rights and obligations of a national in a safe country. The gravamen
of the error in the exercise of discretion, it is alleged, is that the Board
addressed the exclusion analysis on the basis that the applicant was a
permanent resident of the U.S. The case becomes complex, it is
contended, if it is assumed that the applicant is no longer a permanent
resident, or may in the future, no longer be a U.S. permanent resident. It is
contended that the Board ought to have considered the issue of complexity on
the basis of this assumption, particularly in light of the fact that Rule
48(4)(k) of the Refugee Protection Division Rules (SOR/2002-228) requires,
by mandatory language, that complexity be considered on deciding whether to
grant an adjournment.
[23]
A
decision whether to grant an adjournment is discretionary. Complexity is but
one criterion and the weight or value to be given to it will, provided the
outcome falls within the broad parameters of reasonableness, not be disturbed.
Additionally, there is no absolute right to counsel in immigration matters.
The presence or absence of counsel is not determinative of the fairness of the
hearing: Wagg v Canada, 2003 FCA 303, [2004] 1
FCR 206. To ensure that the hearing is fair, the applicant must be able to
participate meaningfully. The question is whether the absence of counsel
resulted in unfairness such that this Court’s intervention is warranted. Here,
the applicant indicated that he understood the Board’s explanation of
exclusion. The applicant indicated he was ready to proceed without counsel at
two different points in the hearing.
[24]
It
is important, in assessing the ultimate fairness of the hearing, to recall that
the applicant did not bring any documents to the hearing to show that his
permanent resident status had been revoked. The applicant had two years to
address the effect of his status in the U.S. for his
Canadian refugee claim and to prepare for his hearing. He was represented by
counsel for almost that entire length of time. Even though he fled the U.S.
upon notice of an asylum revocation hearing, he had ample opportunity to
determine his status in the U.S. and obtain any documentation necessary to
establish that he had lost protection in the U.S. Even if
exclusion had not been specifically raised at the outset of his hearing, in
Canada, his former counsel would have recognized the need to investigate his
status in the U.S., given the
length of time the applicant resided in the U.S. In any
event, by June 23, 2010, the date of the Minister’s disclosure, the applicant
would have known, or ought to have known, that exclusion was in issue.
[25]
In
sum, the denial of the adjournment neither undermined the fairness of the
hearing nor was it unreasonable. The applicant was aware of, but chose not to
disclose, facts which might have rendered his case so complex such that an
adjournment might have been granted. The applicant had two years to adduce evidence
of his status, or lack thereof, in the U.S., or to
introduce the facts which might have rendered his case complex so as to make
the refusal to grant an adjournment unreasonable. On the facts before the
Board there was no evidence that the applicant took any steps to obtain
evidence that would, in fact, change the factual foundation of his claim.
The Claim under Section
96
[26]
The
Board also considered the substance of the applicant’s refugee claim. The
applicant alleged that in 1999, he was detained on two occasions by the state security
services in Uganda because of
his acquaintance with an officer in the Ugandan army who was suspected of opposing
the government. He provided no documentation to support this claim. Given the
absence of any corroborating evidence in support and the vagueness the
permeated his evidence, the Board’s rejection of the claim was reasonable. There
were also ample grounds to support the Board’s finding that the applicant was
not credible. In light of the applicant’s willingness to misrepresent his
identity to Canadian and U.S. officials for over eleven years, the Board reasonably
gave little weight to the applicant’s testimony of these alleged events in Uganda. As there
was no reviewable error in the Board’s finding that the applicant was not
credible and had not established a serious possibility of persecution in Uganda I would not,
regardless of my ruling on misconduct, intervene on the basis of any error with
respect to either the identity analysis or the merits of the applicant’s refugee
claim.
Faulty recording
[27]
There
was a break in the transcript of the proceedings before the Board. The
applicant submits that an incomplete transcript does not allow a reviewing court
to adequately assess the reasonableness of the findings on credibility.
[28]
Lack
of a record does not pre-emptively constitute a breach of procedural fairness.
The analysis remains contextual. The Board produced a substantially complete
transcript and only a small portion appears missing. Any deficiencies in the
transcript did not impede the argument on this judicial review; moreover the
applicant did not identify which portions of his testimony were not recorded
and how the missing portions of the transcript prejudiced his application for
judicial review. Procedural fairness is not breached on mere speculation that
an unformed or unarticulated argument might be lurking in gaps in the record.
In any event, the applicant does not resile from the facts material to the
exclusion analysis. This argument fails.
Conclusion
[29]
To
return to the point of principle, having examined the merits of the claim in
accordance with the criteria in Thanabalasingham, this is an appropriate
case within which the discretion to dismiss on the basis of conduct is warranted.
The application for judicial review is dismissed by reason of the applicant’s
mendacious conduct which disentitles him to any of the equitable remedies this
Court has the jurisdiction to grant.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
ANNEX A
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Immigration and Refugee
Protection Act,
2001, c.
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98. A person referred to in
section E or F of Article 1 of the Refugee Convention is not a Convention
refugee or a person in need of protection.
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Loi sur l’immigration et la
protection des réfugiés (L.C. 2001, ch. 27)
98. La personne visée aux
sections E ou F de l’article premier de la Convention sur les réfugiés ne
peut avoir la qualité de réfugié ni de personne à protéger.
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United Nations’ Convention
Relating to the Status of Refugees, [1969] Can TS No 6
E. This Convention shall not apply to a
person who is recognized by the competent authorities of the country in which
he has taken residence as having the rights and obligations which are
attached to the possession of the nationality of that country.
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Convention relative au
statut des réfugiés des Nations Unies, R.T. Can. 1969 no 6
E. Cette Convention ne sera
pas applicable à une personne considérée par les autorités compétentes du
pays dans lequel cette personne a établi sa résidence comme ayant les droits
et les obligations attachés à la possession de la nationalité de ce pays.
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ANNEX B
Rule 48(4) of
the Refugee Protection
Division Rules (SOR/2002-228) sets out eleven factors
a member must consider when deciding an application for adjournment, one of
which is complexity.
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Refugee Protection Division
Rules (SOR/2002-228)
48.
[…]
Factors
(4) In deciding the application,
the Division must consider any relevant factors, including
(a) in
the case of a date and time that was fixed after the Division consulted or
tried to consult the party, any exceptional circumstances for allowing the
application;
(b) when
the party made the application;
(c) the
time the party has had to prepare for the proceeding;
(d) the
efforts made by the party to be ready to start or continue the proceeding;
(e) in
the case of a party who wants more time to obtain information in support of
the party’s arguments, the ability of the Division to proceed in the absence
of that information without causing an injustice;
(f) whether
the party has counsel;
(g) the
knowledge and experience of any counsel who represents the party;
(h) any
previous delays and the reasons for them;
(i) whether
the date and time fixed were peremptory;
(j) whether
allowing the application would unreasonably delay the proceedings or likely
cause an injustice; and
(k) the nature
and complexity of the matter to be heard.
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Règles de la Section de la protection
des réfugiés (DORS/2002-228)
48.
[…]
Éléments à considérer
(4) Pour statuer sur la demande, la
Section prend en considération tout élément pertinent. Elle examine
notamment :
a) dans le cas où elle a fixé la date et l’heure de la
procédure après avoir consulté ou tenté de consulter la partie, toute
circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
d) les efforts qu’elle a faits pour être prête à commencer ou
à poursuivre la procédure;
e) dans le cas où la partie a besoin d’un délai supplémentaire
pour obtenir des renseignements appuyant ses arguments, la possibilité
d’aller de l’avant en l’absence de ces renseignements sans causer une
injustice;
f) si la partie est représentée;
g) dans le cas où la partie est représentée, les connaissances
et l’expérience de son conseil;
h) tout report antérieur et sa justification;
i) si la date et l’heure qui avaient été fixées étaient
péremptoires;
j) si le fait d’accueillir la demande ralentirait l’affaire de
manière déraisonnable ou causerait vraisemblablement une injustice;
k) la
nature et la complexité de l’affaire.
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