Date: 20080618
Docket: IMM-5109-07
Citation: 2008 FC 755
Toronto, Ontario, June 18,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ROMEO
MEJIA DOMANTAY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for leave for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of
a decision rendered on November 7, 2007 by the Immigration Appeal Division of
the Immigration and Refugee Board (Board), wherein the Board determined that
the applicant’s deliberate and sustained abuse of the Canadian immigration
system outweighed the humanitarian and compassionate considerations, and thus
the appeal of his deportation order was dismissed.
I. The Facts
[2]
Citizen
of the Philippines and a former
Roman Catholic Priest, the applicant entered into an intimate relationship with
one of his parishioner who later gave birth to his daughter. In 1997, the
applicant left the Roman Catholic Church and visited Canada and the United
States
for several months. While in Vancouver, he met a woman with whom he entered into
a fraudulent marriage for the purpose of immigrating to Canada, as he admitted.
They were later divorced.
[3]
On
January 24, 2001, the applicant married his parishioner and attempted to
sponsor her to Canada. The applicant included the daughter of the
couple, who was listed as an accompanying dependent but not as the applicant’s
daughter.
[4]
The
applicant was found to have breached section 40(1) (a), and it was later
determined that he was excluded from Canada. The applicant did not
challenge these findings in any manner. He admitted his misrepresentations but
was seeking a stay of his removal order based on humanitarian and compassionate
grounds.
[5]
In
a decision dated November 7, 2007, the applicant’s appeal was denied.
II. Issue
[6]
The
sole issue raised by this application, is whether by allowing the applicant’s
former representative, allegedly someone who was not a “member in good standing
of a bar of a province, Chambre des notaires du Québec or the Canadian Society
of Immigration Consultants”, as required by the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations), to represent the
applicant, the Board committed a breach of procedural fairness or natural
justice.
III. The Regulations
[7]
With
respect to any duty incumbent upon the Board to monitor those who appear before
it, it is useful to examine the provisions which relate to “authorized
representatives” which include sections 2, 10(2) and 13 of the Regulations.
Section 2 defines an authorized representative as:
|
… member in good standing of
a bar of a province, the Chambre des notaires du Québec or the Canadian
Society of Immigration Consultants incorporated under Part II of the Canada
Corporations Act on October 8, 2003.
|
(Un) membre en règle du barreau d’une
province, de la Chambre des notaires du Québec ou de la Société canadienne de
consultants en immigration constituée aux termes de la partie II de la Loi
sur les corporations canadiennes le 8 octobre 2003.
|
[8]
Pursuant
to s.13.1(1) of the Regulations:
|
…no person who
is not an authorized representative may, for a fee, represent, advise or
consult with a person who is the subject of a proceeding or application
before the Minister, an officer or the Board.
|
… il est interdit à
quiconque n’est pas un représentant autorisé de représenter une personne dans
toute affaire devant le ministre, l’agent ou la Commission, ou de faire
office de conseil, contre rémunération.
|
[9]
This
provision though is subject to two exceptions found at s.13.1 (2) and (3) of
the Regulations: The first being a four year grace period after the coming into
force of the provision for persons who were already providing those services, if
both the client and the application are the same as before the coming into
force of the section. The second exception concerns students-at-law, who are
permitted to represent clients if acting under the supervision of a member in
good standing of a bar of a province or the Chambre des notaires du Québec who
represents, advises or consults with the person who is the subject of the
proceeding or application.
[10]
Finally,
s.10(2) of the Regulations sets out the information that is required to be
contained in applications made under the Regulations. This provision was also
the result of the same amendment which established s.13.1 and the definition of
“authorized representative” set out in s.2 of the Regulations. More
particularly, the provision indicates that the application shall include,
unless otherwise provide by the Regulations, the contact information of
the applicant’s representative, whether a fee is being charged, and a
declaration that the information provided is accurate. Further, if a fee is
being charged, the applicant is asked to include the name of the organization
of which the representative is a member and the membership identification
number issued by that organization to the representative.
[11]
The
Court note that the Canada Gazette Extra Vol. 138, No 4 is particularly
relevant to the present case in that it contains the Regulatory Impact Analysis
Statement of the amendments to the Regulations which resulted in the current
form of the provisions noted above. Instructively it states that:
|
Amendments to sections 2 and 13 and
subsection 10(2) of the Immigration and Refugee Protection Regulations are
necessary to encourage the immigration consulting industry to self-regulate.
These amendments are intended to protect applicants from unscrupulous representatives
while preserving the integrity of Canada's
immigration system
|
Il est nécessaire de modifier
les articles 2 et 13, ainsi que le paragraphe 10(2) du Règlement sur
immigration et la protection des réfugiés (RIPR) afin de protéger le public
contre les consultants en immigration sans scrupules ainsi que pour
encourager l’industrie des consultants en immigration à s’autoréglementer.
|
[12]
Further
the document contains a Regulatory impact Analysis Statement. Although not part
of the Regulations this Statement explains the purpose of this amendment as
follows:
|
The purpose of this provision is to prescribe
which immigration representatives may or may not represent, advise or consult
with a person who is the subject of a proceeding or application before the Minister,
an officer, or the IRB
|
Ces dispositions ont pour but de préciser quels
représentants en immigration peuvent ou ne peuvent pas représenter, contre rémunération,
une personne dans toute affaire devant le ministre, un agent ou la CISR.
|
[13]
Finally,
the section of the Statement entitled “Compliance and Enforcement” (Respect et
execution) reads as follows:
|
Consultants and lawyers will need to be
members in good standing of CSIC or one of the provincial or territorial law
societies to conduct business with CIC, the CBSA or the IRB.
The IRB will not deal with a non-member
as counsel, but will continue processing the case and treat the person who is
the subject of the proceeding as represented.
[…]
|
Les consultants et les avocats devront être des membres en
règle de la SCCI ou d’un ordre professionnel de juristes d’une province ou
d’un territoire pour traiter avec CIC, l’ASFC ou la CISR
La CISR refusera de traiter avec un conseil qui ne sera
pas member de la SCCI. Dans ce cas, elle considèrera la personne faisant
l’ofjet d’une procédure comme une personne non représentée.
[…]
|
III. Standard of Review
[14]
Pursuant
to Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, [2003]
S.C.J. No. 28 (QL), at paragraph 100, “it is for the courts, not the Minister,
to provide the legal answer to procedural fairness questions.” Accordingly,
questions of procedural fairness do not undergo a pragmatic and functional
analysis, it is solely the ultimate decision that is subject to the standard of
review (C.U.P.E., above, at paragraph 100).
IV. Analysis
[15]
The
crux of the applicant’s argument is based on the fact that his representative
at the hearing was not a “member in good standing of a bar of a province,
Chambre des notaires du Québec or the Canadian Society of Immigration
Consultants”, and as such, was not an authorized representative pursuant to the
Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).
Given that the applicant’s counsel was not an authorized representative; the
Board would have violated the principles of procedural fairness and natural
justice by permitting this individual to represent the applicant in a
proceeding before it.
[16]
The
applicant submits that incompetence of counsel may constitute a breach of
natural justice (Sheik v. Canada (Minister of Employment
and Immigration) (1990), 11 Imm. L.R. (2d) 81), and further that where an
applicant has been left without counsel through no fault of his own, this may
also constitute breach of natural justice (Abasalizadeh v. Canada (Minister
of Citizenship and Immigration), [2004] F.C.J. No. 1714 (QL)). According to
the applicant, a counsel who is not a “member in good standing of a bar of a
province, Chambre des notaires du Québec or the Canadian Society of Immigration
Consultants” is not competent to represent an applicant at a hearing.
[17]
Further,
the applicant contends that the Board’s obligation in this regard is similar to
that of the Court in relation to its officers. The Court has a duty to uphold
the principles established in the Federal Courts Act, R.S., 1985, c.
F-7, and its Rules, which includes ensuring that counsel who appear before it
are officers of the Court (Parmar v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1000 (QL), at paragraph 7; Al-Koutsi v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1005
(QL), at paragraph 7).
[18]
According
to the applicant, the Board has explicitly undertaken to actively monitor that
only authorized or unpaid representatives act as counsel before all its
tribunals. The applicant cites the “Policy for Handling IRB Complaints
Regarding Unauthorized, Paid Representatives”. However, given that this policy
became effective April 10, 2008, and thus post-dates the decision in question,
it is not relevant to the present judicial review.
[19]
Based
on the foregoing, the Court shares the view that there is a duty incumbent upon
the Board to verify that those individuals representing clients with whom it
has dealings are authorized representatives pursuant to the Regulations, or
that they are not receiving a fee for their services. This duty envisions the
protection of applicants and the preservation of the integrity of Canada's
immigration system.
[20]
Given
that a duty exists, it remains to be determined how far that duty extends, and
if in reality the applicant’s counsel at the hearing before the IAD was not an
authorized representative or not someone who was not receiving a fee.
[21]
The
applicant states that he retained the office of Max Chaudhary to act on his
behalf in his appeal before the Board and that a certain Ms. Akhbari was sent by
Mr. Chaudhary’s office to act on his behalf at his hearing on November 7,
2007. This is consistent with the tribunal record in which Mr. Chaudhary’s
office is the point of contact for Immigration Canada during the relevant time
period.
[22]
Based
on the evidence produced by the applicant, the Court is satisfied that the
applicant’s former counsel, Mr. Chaudhary, was indeed receiving a fee, and that
Ms. Akhbari was neither a member of the Law Society of Upper Canada (LSUC) nor
a member of the Canadian Society of Immigration Consultants (CSIC).
[23]
However,
the information given by the applicant through his affidavit is minimal. There
is nothing in his affidavit to outline the relationship that he had with his
representative and has not even outlined that he was unaware of his chosen
representative qualifications, or that any misrepresentation occurred, or that
any financial compensation was paid. He does not also indicate when he became
aware that she was not authorized to represent him and the circumstances
surrounding that realization.
[24]
This
would be pertinent information to know when deciding a case of this nature.
Since if for any reasons the applicant knew, at the time of his hearing before
the Board, that Ms. Akhbari was not authorized to act as his representative,
why wait after the Board’s decision to raise the issue? If he knew and he
accepted, that we do not know, then what is his prejudice? It is abundantly
clear from a review of the transcript that the applicant had no issues
regarding Ms. Akhbari representation at the hearing before the Board. She might
have been unqualified but still competent to represent the applicant, and this
with his full knowledge and acceptance. The Court does not know since the
evidence does not say.
[25]
While
the file indicated to the Board that the applicant was represented by Mr.
Chaudhary’s firm, a member in good standing of LSUC, on the other hand the
applicant’s representative’s, Ms. Akhbari, from Mr. Chaudhary’s firm, was
always addressed during the hearing as the applicant’s counsel. How was the
Board, under these circumstances, to know that Ms. Akhbari was not qualified to
represent the applicant, or a student-at-law, who was permitted to represent
clients if acting under the supervision of a member in good standing of a bar? Certainly
not from the applicant’s silence.
[26]
The
onus is on the applicant to choose his representative. It is not the obligation
of the Board to police the applicant’s right to counsel, while the applicant bears
the onus of establishing the circumstances surrounding his allegation that any
duty owed him was not met, and that as a result he suffered a breach of natural
justice.
[27]
The
Court finds that the applicant’s record establishes that Mr. Chaudhary, who was
held out by the applicant as his counsel, underwent the necessary verifications
to determine that he was indeed an authorized representative. In view of the
apparent applicant’s acceptance of the representative’s delegated to him by Mr.
Chaudhary’s firm for the Board’s hearing, and the circumstances of this case, the
Court is satisfied that the Board fulfilled any verification duties that are
incumbent upon it, and that the applicant has not established that the Board
failed to meet its verification obligation pursuant to the Regulations, or that
it committed a breach of procedural fairness or natural justice. Therefore, the
application will be dismissed.
[28]
No
question of general importance was put forward for certification, and none will
be certified.
JUDGMENT
FOR THE
FOREGOING REASONS THE COURT dismisses the application.
“Maurice
E. Lagacé”
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