Date: 20081218
Docket: IMM-2902-08
Citation: 2008 FC 1398
Toronto, Ontario, December 18, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JANE OKOJIE
SAMUEL OKOJIE
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are an adult woman and her minor son. Both are citizens of Nigeria. The female
Applicant also has an infant daughter born in Canada who is not a
subject of these proceedings.
[2]
The
decision under review is that of a Pre-Removal Risk Assessment (PRRA) officer
who, in a written decision dated March 25, 2008 rejected the Applicants’
application on the basis that they would not be subject to risk of persecution,
danger of torture, risk to life or risk of cruel and unusual treatment or
punishment if returned to Nigeria.
[3]
The
Applicants seek to have that decision quashed and the matter returned for a
re-determination by a different officer. Their counsel raises two issues in
this regard:
1. Did the PRRA
Officer breach the rules of procedural fairness, natural justice and the
Applicants’ right to fundamental justice?
2. Was the PRRA
Officer’s assessment of the evidence characterized by patent unreasonableness?
[4]
For
the following reasons, I hold that the application is dismissed.
Issue
1: Procedural Fairness and Natural Justice
[5]
Applicants’
Counsel’s main argument in the written material and in oral argument dealt with
the issue of procedural fairness and natural justice. I agree with Applicants’
Counsel that no question of standard of review arises in this regard. If there
was a lack of procedural fairness that amounted to a denial of natural justice
then the judicial review must be allowed and the matter returned for proper
determination by someone else.
[6]
In
the present case the Applicants submit that there was an oral hearing conducted
by a PRRA Officer at which the adult Applicant and her friend were questioned
but that the Applicants’ lawyer representative was ejected from the room at an
early stage of the hearing leaving the Applicants without proper representation
and in no fit state to continue to be questioned or conduct themselves at the
hearing.
[7]
In
the regard the Applicants have provided an affidavit from the adult Applicant
and the lawyer who was ejected, Henryson Nwakobi. The Respondent filed the
Affidavit of the PRRA Officer Vaughn Spence. No affiant was cross-examined.
[8]
The
version of the events in question differs as between the affiants. Where there
is a conflict, I prefer the evidence of Spence since it is based on notes he
made shortly having the hearing while the others base their evidence on
recollection several months later. I have also carefully reviewed the Tribunal
Record. As a result the following facts emerge and are largely not
contradicted by the Applicants except where noted.
1. The
Applicants sought a Pre-Removal Risk Assessment (PRRA) based essentially on the
allegation that the adult female Applicant says she is a lesbian and to return
to Nigeria would place
her at risk;
2. The PRRA
application form signed by the adult Applicant names her Canadian
representative as “Julius Ehikwe (Dr.)”
3. The PRRA
Officer who was dealing with the application, Spence, conducted an oral hearing
on March 18, 2008;
4. Present at
the hearing in addition to the Officer were the adult female Applicant, her
friend Ms. Richards, Julius Ehikwe (Dr.) and one other male person.
5. The Officer
was led to believe that the one other male person was present as an observer
and was a brother of Ehikwe. Here the evidence is in conflict, the female
Applicant says that the other person was there as her “representative” but what
she does not say is whether she advised the Officer that such was the case or
not is not stated in her affidavit. The male person, later identified as
Henryson Nwakobi, an Ontario Lawyer, in his affidavit also says that he was
present as the Applicants’ representative but does not say that he advised the
Officer as to that matter. Spence, in his affidavit, states that if Nwakobi
was present a representative nobody told him. Spence attests that if someone
had said so, that he, Spence, would have made a note in his file to that
effect. Applicants’ Counsel in oral argument appears to accept the fact that Nwakobi
was not introduced to the Officer as a representative of the Applicants’ in
that he argues that the Officer had a duty to inquire of Nwakobi when he turned
up at the hearing, as to the capacity in which he was present. I simply do not
accept this argument. A person turning up at a hearing of this kind, who is
acting as a representative, has the duty to identify himself/herself as acting
in such a capacity. Here I accept the evidence of Spence that the person was
simply introduced as an observer who was permitted to sit in. Nwakobi, as a
lawyer should bear the onus of positively identifying himself to the Officer if
he was acting in the capacity as representative.
6. Shortly into
the questioning of the adult female Applicant by the Officer the Applicant
appeared to be hesitant in completing an answer. At this point the other male
person (now identified as Nwakobi) spoke up and interjected, completing the
answer that he believed the Applicant was going to give. An exchange between
the Officer and Nwakobi followed (who said what to whom and who was heated in
giving remarks is in dispute but unimportant). As a result Nwakobi was ejected
from the hearing room.
7. The adult
female Applicant appeared to be upset by the incident and took a few minutes to
compose herself.
8. The
Applicants’ were given an opportunity to seek an adjournment but declined.
Julius Ehikwe remained during the completion of the examination of the adult
female Applicant and of her friend Ms. Richards.
9. The negative
PRRA decision was communicated by letter addressed to the Applicants and a
carbon copy was sent to Julius Ehikwe.
10. No complaint as to the
ejection of Nwakobi from the hearing was made until the filing of the
Application for Leave to seek judicial review. The Applicants, accompanied by
Ehikwe continued with the hearing. Ehikwe was on the record as representative
before, during and after the hearing. Nwakobi was never on the record in any
capacity.
[9]
I
am satisfied on the evidence that Ehikwe, not Nwakobi, was the representative
of the Applicants and acted throughout, before, during and after the oral
hearing as the Applicants’ representative. Nwakobi, if he was acting in any
capacity at all, was never so identified in any written material and neither he
or anyone else made that point clearly to the Officer at the hearing. Nwakobi,
as a lawyer, has a duty to the Officer to disclose his capacity, if indeed he
had any. Nwakobi had a further duty as a lawyer, whether or not he represented
anybody, to be respectful and to behave himself during the hearing. I
appreciate that the evidence is in conflict in this regard therefore I do not,
and I need not, take the point of respect and behaviour any further. The point
is, as a lawyer, Nwakobi had a duty, if he acted as a representative for a
person, to identify himself as such. He did not. He cannot now, nor can
others, when it appears to suit the Applicants’ convenience, identify himself
as a representative of the Applicants.
[10]
There
was no lack of procedural fairness or denial of natural justice.
Issue #2: Officer’s
Assessment of the Evidence
[11]
Each
party was content, in respect of this issue, to rely on the written
representation made in there Memorandum of Argument.
[12]
Applicants’
representations were brief and amounted to nothing more than a quarrel with
certain findings made by the Officer. The function of the Court is not to
reweigh factual findings made by the Officer in the absence of a material
misunderstanding or oversight (e.g. per Layden-Stevenson J. in Augusto v. Canada (Solicitor
General),
2005 FC 673 at para. 9). No such misunderstanding or oversight arises in the
case. There is no basis for review in this respect.
Certification and Costs
[13]
Counsel
for the Applicants proposed questions for certification. Counsel for the
Respondent did not, arguing that the matter raised here are fact specific and
no question of general importance arises. I agree. No question will be
certified.
[14]
There
are no special reasons to award costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
- The application is
dismissed;
- No question is
certified;
- No costs are
ordered.
“Roger
T. Hughes”
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