Date: 20070419
Docket: IMM-2456-06
Citation: 2007 FC 349
Toronto, Ontario, April 19, 2007
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
ALEJANDRO
FABIAN AGRI
ADRIANA RUIZ
KEVIN AGRI-RUIZ
GIULIANA AGRI-RUIZ
Applicants
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS
FOR ORDER AND ORDER
[1]
The applicants seek an advantage because they were not
represented by counsel when they applied for a pre-removal risk assessment
(PRRA). They submit that the PRRA officer had a duty to lead them through the
process by the hand and that the guideline issued by Citizenship and
Immigration Canada was incomplete and misguiding. I disagree.
[2]
The applicants come from Argentina. They claimed to be Convention refugees or otherwise in need of
protection because the principal applicant, Mr. Agri, a businessman in Mendoza province witnessed the murder of a fellow businessman.
Police involvement was alleged. Their claim was dismissed. However, they were
entitled to have a PRRA before returning to Argentina. They availed themselves of that opportunity. The evidence they filed
included four documents which the officer would not consider on the grounds
that they were not new evidence. The officer correctly noted that they related
to incidents that predated the refugee rejection decision by the Immigration
and Refugee Board (the Board).
[3]
Section 113(a) of the Immigration and Refugee Protection
Act, S.C. 2001 c. 27 provides:
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113. Consideration of an application for protection shall be
as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
|
113. Il est
disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des éléments de
preuve survenus depuis le rejet ou qui n’étaient alors pas normalement
accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les
circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;
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[4]
It was submitted, particularly since the applicants were
not represented during the PRRA proceedings, that it should have been explained
to them what comprises new evidence, what comprises old evidence, and that
there was a burden upon them to explain why the “old” evidence was not
presented before the Board. Furthermore, the guideline titled “Applying for a
pre-removal risk assessment - unsuccessful refugee claimants” was misleading,
in the sense that it was incomplete. Although the guideline did state that new
evidence included evidence which was not normally accessible or would not reasonably
have been expected to have been presented to the Board, and that it was
important to clearly identify such new evidence, it was not specifically stated
that such new evidence had to be accompanied by an explanation as to why it had
not been available and presented earlier. In this case, the applicants prepared
their forms with the help of a community aid organization which could deal with
translation between Spanish and English, but which did not have a legal background.
[5]
Even if the applicants were not aware that a guideline is
not itself the law, had they cared to read the entire form they would have seen
this clear statement: “This is not a legal document. For legal information,
please refer to the Immigration and Refugee Protection Act, 2001 and Immigration
and Refugee Protection Regulations, 2002.”
ISSUES
[6]
The issue is whether the PRRA officer had a positive duty
to explain to the applicants that since the evidence they presented did not
arise after the rejection of the refugee claim, they had an obligation to
explain why it was not reasonably available or why they could not reasonably have
been expected to present it to the Board. If the answer is in the affirmative,
they were denied a fair hearing, and are entitled to a new one. It is not for
the Court to surmise what the outcome might have been had the officer taken
this evidence into account. (Cardinal v. Director of Kent Institution, [1985]
2 S.C.R. 643).
[7]
The standard of judicial review dictated by the pragmatic
and functional approach set down by the Supreme Court is not in issue. Matters
of natural justice are not touched by that approach. The Court owes the officer
no deference. Another way of putting it is that the standard of review is
correctness (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 and Canada (Attorney General) v. Sketchley, 2005 FCA 404).
DISCUSSION
[8]
The burden was upon the applicants to make their case. They
had no legitimate expectation that because they produced documents which had
not been before the Board, the officer would consider them as constituting
“new” evidence. Nor was this a case which could be said to have raised concerns
so that they should have been given sufficient opportunity to respond in a
meaningful way. See for example Khwaja v. Canada (Minister of Citizenship
and Immigration), 2006 FC 522, [2006] F.C.J. No. 703 (QL), and Guo v. Canada (Minister of Citizenship and
Immigration), 2006 FC 626, [2006] F.C.J. No. 795
(QL). More to the point is the decision of Mr. Justice Teitelbaum in Ngyuen
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1001, [2005]
F.C.J. No. 1244 at paragraph 17, where in speaking of the Board he said:
It
is not the obligation of the Board to act as the attorney for a claimant who
refuses to retain counsel. It is not the obligation of the Board to tell the
claimant that he may ask for an adjournment of the hearing and it is not the
obligation of the Board to "teach" the Applicant the law on a
particular matter involving his or her claim.
[9]
Even accepting that the applicants were not aware that they
had to provide an explanation, as stated by Lord Atkin in Evans v. Bartlam,
[1937] A.C. 473 at page 479:
The fact is that there
is not and never has been a presumption that every one knows the law. There is
the rule that ignorance of the law does not excuse, a maxim of very different
scope and application.
[10]
For these reasons, the application shall be dismissed. At
the hearing it was agreed that whichever party was unsuccessful should have a
reasonable opportunity to suggest a question of general importance which could
be certified to the Court of Appeal. The applicants shall have until Tuesday,
10 April 2007 to submit a question of general importance via the Toronto
Registry. The respondent shall have until Monday, 16 April 2007, to reply.
[11]
Following the release of the original reasons on 2 April
2007, Mr. Agri’s counsel proposed the following question for certification:
Does an Immigration
Officer owe a greater duty of fairness to an unrepresented applicant to allow
the applicant an opportunity to provide all necessary evidence in order to
satisfy a specific legal requirement?
[12]
Reliance was placed on the decision of Mr. Justice O’Reilly
in Nemeth v. Canada (Minister of Citizenship and Immigration), 2003 FCT 590, [2003] F.C.J. No. 776 (QL). The facts of that case were
quite different. Mr. Nemeth had a lawyer who was unable to attend the hearing
before the Immigration and Refugee Board, but who requested an adjournment. Nevertheless,
Mr. Nemeth appeared alone before the Board and said he had no need for counsel.
During the hearing it became evident that Mr. Nemeth did not understand what he
had to do and it was too late to correct the shortcomings. The application for
judicial review was allowed, because although Mr. Nemeth had not been abandoned
by counsel and had waived his right to be represented by counsel, he did not
receive a fair hearing as the Board had been aware that he had been represented
until the last minute, and should have been alive to the risk that he was ill-prepared
to represent himself. That is not the situation here. The Agris were
unrepresented from the outset.
[13]
The documents issued by the Board make it perfectly clear
that a party is entitled to be represented by counsel if he or she so chooses.
One has no right to expect, by not retaining counsel, that the Board will act
both as a decision-maker and as advocate for the applicant.
ORDER
THIS COURT ORDERS that the application for
judicial review is dismissed. There is no question to certify.
“Sean Harrington”
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