Date: 20070510
Docket: IMM-4646-06
Citation:
2007 FC 505
Ottawa, Ontario, May 10, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
DRENY
AMPARO GOMEZ BEDOYA AND JOSHUA MARANTE
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Dreny
Amparo Gomez Bedoya (the principal applicant) and her son Joshua Marante (the
minor applicant) are citizens of Columbia
and, in the case of the minor claimant, also of the United States. They have applied for judicial review
of a decision by the Immigration and Refugee Board’s Convention Refugee
Determination Division (the Board), dated July 27, 2006. The Board found they
were neither Convention refugees nor persons in need of protection, pursuant to
s. 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the IRPA).
FACTS
[2]
Ms. Bedoya
claims that on October 24, 2000, an unidentified man sought admission to the
geriatric home she managed in the city of Cali. When she said she could not assist him,
he became very upset and aggressive. Her former boyfriend, Jorge Antonio Torres
Cortes, then threatened to call the police unless the man left. The man did
leave, but said he would put a bomb in the house and that Mr. Cortes would pay
for his actions.
[3]
On
February 27, 2001, Mr. Cortes disappeared. This was reported in a newspaper
article dated June 19, 2001, filed as an exhibit to Ms. Bedoya’s affidavit
before the Board. Subsequently, on August 23, 2001, Ms. Bedoya received a phone
call from a person identifying himself as a member of the Revolutionary Armed
Forces of Columbia – People’s Army (the FARC). He told her to stop looking for
Mr. Cortes. The FARC had made him disappear, because of the incident in the
geriatric home ten months earlier. The man also told Ms. Bedoya to close her
business. She did, on September 15, 2001.
[4]
Ms. Bedoya
tried to seek state protection on several occasions. In November 2000, she went
to the National General Prosecutor’s Office to report the initial incident in
the geriatric home. Then, on October 11, 2001, she made a second complaint
after receiving the phone call from the FARC member. The same day, she received
a letter outlining the protection measures of the Prosecutor’s Office. This
letter was also filed as an exhibit to her affidavit. On October 19, 2001, she made
a Petition of Right to the Social Solidarity Network of Colombia for
assistance. The letter she received in reply was also filed before the Board.
[5]
From
September 2001 to December 2003, Ms. Bedoya worked on her own and visited the U.S. for extended periods. On December 14,
2002, she gave birth to her son Joshua Marante while in the U.S. When returning to Columbia during those years, she
received no threat and apparently felt secure.
[6]
In
December 2003, she decided to start a new life and opened an aesthetics store. Shortly
thereafter, on February 27, 2004, she was again threatened. Ms. Bedoya’s niece,
who worked at the store, witnessed the incident. She confirmed the story in an
affidavit. Two armed men put a gun to Ms. Bedoya’s head. They told her to close
her business and leave the country, or they would kill her and all of her
family members. The day after, Ms. Bedoya found a note from the FARC under the
door to her house. It instructed her to run away to save her life, adding that
“tomorrow may be too late”. Again, Ms. Bedoya’s niece saw the note and referred
to it in her affidavit.
[7]
Ms. Bedoya
then made a new complaint to the National General Prosecutor’s Office, but
received no response. Afraid for her life, she asked a friend to bring her
infant son to the U.S. and left her two older
children at a friend’s house. Again, Ms. Bedoya’s friend has confirmed this in
an affidavit, to which is attached a copy of her visa and of the entry seal to
the U.S. Ms. Bedoya flew to the U.S.
a few days later, where she joined her son and lived with his grandmother.
[8]
On October
19, 2004, both applicants came to Canada
and sought refugee protection. Ms. Bedoya says she did not apply for refugee
status in the U.S. because one of her relatives living there told her the acceptance
rate for Columbian refugee claimants was very low, and that she would be
detained and separated from her son while her claim was examined.
THE DECISION UNDER REVIEW
[9]
The Board
found Ms. Bedoya was not credible or trustworthy on several key aspects of her
story. Its reasons can be summarized as follows:
·
Ms.
Bedoya’s claim that a senior member of the FARC guerrillas would seek admission
to her geriatric home in a government-controlled area, whose management he did
not know or trust, was not credible;
·
Her claim
that her boyfriend’s disappearance was related to this alleged incident was not
credible either, since it occurred six months later and since the target of the
guerrillas’ anger was supposed to be Ms. Bedoya herself;
·
The
threats Ms. Bedoya allegedly received about closing her business did not occur
until ten months after the alleged triggering incident;
·
Ms. Bedoya
continued to live and work in Columbia from the time of the alleged
incident in 2000 up until 2004 without being harmed by anyone. She also
frequently travelled back and forth to the U.S. during this period;
·
Ms. Bedoya
could not provide any reason why the FARC guerrillas would return and demand she
close her new business, a beauty shop, when it opened in 2003;
·
The FARC
guerrillas did not kidnap or kill her at any point, despite allegedly
threatening her at gunpoint with a demand that she leave the country;
·
The claim
that FARC guerrillas followed up their threat at gunpoint with another message
by pamphlet reminding her to leave the country was not credible;
·
Ms. Bedoya
indicated in her PIF that her mother and children were still in Colombia, but did not testify that
they were in hiding until the hearing. The Board did not find her explanation
that they remained “mostly indoors” credible;
·
There is
no evidence that Ms. Bedoya’s two children in Columbia have been traced or harmed, despite the
FARC’s alleged skill at tracking Ms. Bedoya’s long-term movements;
·
Ms. Bedoya’s
explanation for not seeking refugee status in the U.S. was not credible. Her son is an American
citizen. She lived in the U.S. for several months without any
incidents to support a fear of racism, as per her relative’s warnings
about the success rate of Columbian refugee claims. The Board found that if Ms.
Bedoya felt genuinely threatened, she would have sought refuge at the first
opportunity;
·
No
evidence was provided to support the refugee claim of Ms. Bedoya’s son, who is
an American citizen entitled to reside outside of Colombia.
ISSUES
[10]
This
application for judicial review raises essentially two issues:
1. Did the Board err in
determining that the applicants’ claim, evidence and testimony were not
credible?
2. Were the applicants denied
natural justice and fairness through the incompetence of their counsel before
the Board?
ANALYSIS
[11]
There is
no dispute about the appropriate standard of review in this case. Findings of
fact and credibility are to be reviewed on the most deferential standard of
patent unreasonableness, and should therefore be interfered with only if made
in a perverse or capricious manner or without regard for the material before
the Board: Aguebor v. Canada (Minister of Citizenship and
Immigration)
(1993), 160 N.R. 315 (F.C.A.). As oftentimes repeated by this Court and the Federal
Court of Appeal, “…the Board is entitled to conclude that an applicant is not
credible because of implausibility in his or her evidence as long as its
inferences are not unreasonable and its reasons are set out in ‘clear and
unmistakable terms’”: RKL v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 116 at paragraph 9.
[12]
As for the
alleged incompetence of counsel representing the applicants before the Board,
the case law is replete with statements to the effect that a finding of incompetence
by counsel severe enough to breach natural justice will be a rare and unusual
occurrence. When such a breach has been established, however, a pragmatic and
functional analysis to determine the applicable standard of review will not be
required, as there is no need to assess the proper degree of deference with
respect to procedural fairness: Canada (Attorney General) v. Sketchley,
2005 FCA 404.
[13]
Turning
first to the Board’s credibility findings, I would normally be extremely
hesitant to intervene since they appear to be cogent and based on the evidence.
Without doubt, there were some inconsistencies and implausibilities in Ms.
Bedoya’s story. The hearing transcript and the record show she lived with her
children for more than two years without any fear, and travelled freely and
extensively back and forth to the U.S.
for reasons unrelated to any feeling of threat. The fact that she did not claim
refugee status in the U.S. was also relevant to gauging
her subjective fear. In a nutshell, I believe the Board’s reasoning and
inferences were grounded in the evidence before it and were neither capricious nor
perverse.
[14]
I am nevertheless
of the view that the Board erred by disregarding significant pieces of
corroborating evidence. When reviewing an applicant’s file and testimony to
assess her credibility, it is not enough to focus only on certain parts. While
courts should no doubt refrain from reading an administrative tribunal’s
reasons hypercritically, we must at least ensure all the relevant evidence has
been properly considered. When critical aspects of an applicant’s file are not
taken into consideration without any explanation, especially when they tend to
contradict the tribunal’s findings, s. 18.1(4)(d) of the Federal Courts Act
must find application. As Justice John Evans stated in Cepeda-Gutierrez v.
Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1425 at paragraph 17:
…the more important the evidence that is
not mentioned specifically and analyzed in the agency's reasons, the more willing
a court may be to infer from the silence that the agency made an erroneous
finding of fact "without regard to the evidence": Bains v.
Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency’s burden of explanation increases with
the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears squarely
to contradict the agency's finding of fact.
[15]
In the
present case, there is not a word about the affidavit sworn by Ms. Bedoya’s
niece, who confirmed not only that two armed men came to the beauty salon and
threatened her aunt, but also that a flyer was slid under the door of her house
telling the family members to flee for their lives. Similarly, not a word is said
about the affidavit of Ms. Bedoya’s friend who attested that she travelled to Miami with Ms. Bedoya’s minor son, all at Ms.
Bedoya’s expense. Also entered into evidence was a newspaper article showing a
picture of Mr. Cortes, along with others, with the caption that he disappeared
on February 27, 2001; yet, the Board did not see fit to even mention that exhibit.
[16]
It is not
as if these pieces of evidence were of marginal relevance or simply buttressed
the Board’s conclusion. Quite to the contrary, they were central to the applicants’
claim and bolstered the strength of their story. If the Board was of the view
that they were unreliable, for one reason or another, or that they did not
offset what it perceived to be fatal flaws in Ms. Bedoya’s allegations, it had
a duty to explain why and to give reasons. Considering the impact of the
Board’s decision on refugee claimants’ lives, one should never be left to
speculate as to why a prima facie corroborating and reliable piece of
evidence has been left out. For that reason, I am therefore prepared to accept Ms.
Bedoya’s submission that the Board’s credibility finding was patently
unreasonable.
[17]
On the
other hand, the allegations of incompetence against Ms. Bedoya’s first lawyer
and of an ensuing breach of natural justice must be rejected. An allegation of
professional misconduct could be made, since there is evidence in the record of
a letter referring the matter to the Barreau du Québec. Indeed, counsel for the
Minister acknowledged Ms. Bedoya’s first lawyer failed her in some respects.
However, I have not been convinced that such failures amount to a breach of
natural justice.
[18]
This Court
has made it clear that a party should not be allowed to raise the incompetence
of his lawyer unless that lawyer has had an opportunity to explain his conduct,
or without evidence that the
matter has been referred to the governing body for investigation: see, for example,
Nunez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 555 (F.C.T.D.); Sathasivam v. Canada (Minister of
Citizenship and Immigration), 2004 FC 438; Kizil v. Canada
(Minister of Citizenship and Immigration), 2004 FC 137; Gonzalez v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1274. As
mentioned, this requirement has been met in the present instance.
[19]
The
standard for this Court to conclude that the lawyer’s incompetence was so
severe as to amount to a breach of natural justice is very high, as we can see
from the following extract of Shirwa v. Canada (Minister of
Employment and Immigration) (1994), 23 Imm. L.R.(2d) 123 (F.C.T.D.) at
paragraphs 11 and 12:
In a situation where through
no fault of the applicant the effect of counsel’s misconduct is to completely
deny the applicant the opportunity of a hearing, a reviewable breach of
fundamental justice has occurred …
In other circumstances where a
hearing does occur, the decision can only be reviewed in “extraordinary
circumstances”, where there is sufficient evidence to establish the “exact
dimensions of the problem” and where the review is based on a “precise factual
foundation.” These latter limitations are necessary, in my opinion, to heed the
concerns expressed by Justices MacGuigan and Rothstein that general
dissatisfaction with the quality of representation freely chosen by the
applicant should not provide grounds for judicial review of a negative
decision. However, where the incompetence or negligence of the applicant’s
representative is sufficiently specific and clearly supported by the evidence
such negligence or incompetence is inherently prejudicial to the applicant and
will warrant overturning the decision, notwithstanding the lack of bad faith or
absence of a failure to do anything on the part of the tribunal.
[20]
In
addition, the applicants must show that there is a reasonable probability that
but for this alleged incompetence, the result of the original hearing would
have been different: Shirvan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1509; Jeffrey v. Canada
(Minister of Citizenship and Immigration), 2006 FC 605; Olia v.
Canada (Minister of Citizenship and Immigration), 2005 FC 315.
[21]
The
applicants allege their former counsel did not properly assist them with their
PIF. However, they do not describe how this lack of assistance resulted in any
critical evidence missing from the PIF. The only example is that Ms. Bedoya did
not state her children in Colombia were “in hiding” in her PIF. Yet,
the credibility finding against her was not based on the fact she did not
explain her children were “in hiding”. Rather, the Board did not find her
explanation of her children’s whereabouts satisfactory. As for the fact that
Ms. Bedoya’s PIF was written in “broken English” because she did not have the
assistance of a Spanish interpreter, this is not a sufficient argument in
itself, absent proof that the poor quality of her English prevented her from fully
setting out her story. I note in passing that Ms. Bedoya was granted an
extension of time to file her PIF, at the request of her former counsel, so an
interpreter could help her. I also note that she was provided with an
interpreter at the Board hearing.
[22]
It was
also suggested that evidence could have been filed to substantiate the
allegations of discriminatory treatment against refugee claimants in the U.S. Again, I do not find this argument
persuasive. While it is true the Safe Third Agreement with the U.S. only
entered into force a few months after the applicants entered Canada, the fact remains that the U.S. has ratified the United Nations Convention Relating to the
Status of Refugees, and
there is no reason to believe it does not abide by its obligations. The fact
that the rate of successful applications may be lower there than in Canada does
not justify the applicants’ failure to seek refugee protection in the U.S. The Board could certainly take that factor into
consideration in assessing Mrs. Bedoya’s subjective fear: Breucop v. Canada (Minister of Citizenship and
Immigration), 2004 FC
117; Pissareva
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 2001 (F.C.T.D.).
[23]
The last
piece of allegedly missing evidence was Ms. Bedoya’s psychiatric evaluation. The
evaluation, made more than a year before her Board hearing, contains evidence
that could be equally helpful or harmful to Ms. Bedoya. In any event, such
evidence would not have been determinative to her claim. In light of all the
circumstances of this particular case, its non-inclusion does not rise to the
level of a breach of natural justice. Indeed, the applicants’ former counsel
may have made a considered strategic decision to omit the evaluation, in light
of its contents. I note as well that Ms. Bedoya was allowed to give evidence on
the evaluation at her Board hearing, and was given the opportunity to file the
document after the hearing. She declined that offer and asked instead that the
Board make its decision as quickly as possible.
[24]
All things
considered, I find the allegations of incompetence quite similar to those
considered by Justice Marshall Rothstein in Huynh v. Canada (Minister of Employment and
Immigration)
(1993), 65 F.T.R. 11 (F.C.T.D.). In that case, counsel had allegedly failed to
tell the applicant’s entire story, failed to review the PIF with the applicant
prior to the hearing and completed the form during the hearing, did not submit
all available information on country conditions, did not object to problematic
interpretation, was not familiar with the refugee process and did not advise
the applicant about the possibility of judicial review. Despite all these
shortcomings, Justice Rothstein refused to overturn the Board’s decision as it
was not one of those extraordinary cases where counsel’s failures amounted to a
breach of natural justice. As a result, I would reject the applicants’
submissions on this second ground for judicial review.
CONCLUSION
[25]
On the
basis of the above, the application is allowed, the Board decision is set aside
and the matter is referred back to a different panel of the Board for
redetermination.
[26]
Counsel
for the applicants submitted two questions for certification, which can be
framed as follows:
1. Does the Court require that a
counsel accused of incompetence so severe as to give rise to a breach of
natural justice be added as a mis-en-cause in an immigration judicial review
proceeding?
2. If a complaint of incompetence
has been laid against such a lawyer with their law society, must a decision
upholding the complaint be added to the record before the Court will find that
incompetence giving rise to a breach of natural justice has occurred?
[27]
I agree
with the respondent that these questions should not be certified. First, they
would not be determinative of the appeal, as the decision does not rest on a
breach of natural justice resulting from the first lawyer’s alleged
incompetence. Second, I believe the law is well settled on the requirements
that must be met for this Court to consider a lawyer’s failures and,
eventually, to be found of sufficient import to justify quashing a Board
decision.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed, the Board decision is set aside and the matter is referred
back to a different panel of the Board for redetermination.
"Yves
de Montigny"
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