Date: 20081010
Docket: IMM-647-08
Citation: 2008 FC 1145
OTTAWA, Ontario, October 10, 2008
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
PHAKCHIRA
PHROMSENA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant in this matter seeks judicial review of the decision of the Refugee
Protection Division (RPD) that she is neither a Convention refugee nor a person
in need of protection. She claimed protection on the basis that she feared persecution
by her ex-husband and by gangsters to whom she owes money in Thailand.
[2]
The
RPD noted that Ms. Phromsena had not gone to the police or sought any other
form of protection after she was abused by her ex-husband or threatened by the
gangsters. On the basis of inconsistencies and contradictions in her
testimony, she was found not to be a credible witness. The RPD found it to be
an unusual coincidence that the applicant’s ex-husband had arrived in Canada shortly
after she did and pointed out that she had not approached Canadian authorities
for assistance after her ex-husband allegedly strangled her in this country.
[3]
The
RPD also noted that an internal flight alternative (IFA) likely existed for the
applicant and that she would reasonably be expected to avail herself of such
before fleeing to another country. It was also noted that Ms. Phromsena could
sell land that she owns in Thailand to pay off the
gangsters who she claims would harm her due to her unpaid debts, which arose
either due to her ex-husband’s drug use or from opening a business.
[4]
The
applicant contests the decision of the RPD on three points:
a. The Panel
failed to provide her with a fair hearing when it refused to adjourn her
hearing to allow her new counsel to assist her;
b. Her right to
a fair hearing was denied when the Refugee Protection Officer was permitted to
disclose documents in the middle of the hearing on which the decision was based
in part; and
c. The Panel
ignored evidence directly relevant which contradicts its decision.
[5]
The
right to counsel and the timing of disclosure of documents are both issues of
procedural fairness. Should the procedure which led to the decision of the RPD
be found to have been unfair, the decision must be vacated unless it is
inevitable that the claim would have been rejected: Cortes Silva v. Canada (Minister of
Citizenship and Immigration), 2005 FC 738, 265 F.T.R. 297. The
assessment of the evidence is a matter squarely within the expertise of the RPD
and deference should be given it. A decision on the evidence will be upheld
unless it is unreasonable.
[6]
The
applicant had clearly made her intentions known that she wished to be
represented by counsel when she hired her previous counsel. Her subsequent
counsel, retained following a breakdown in her relationship with her first
counsel, attempted to obtain an adjournment of her hearing and went so far as
to indicate that he would be available for a hearing the day after that
scheduled. The applicant submits that it was an unfair exercise of the RPD’s
discretion to refuse his request. She further argues that it was also unfair
for the RPD to fail to record any discussion which took place with the
unrepresented applicant in order to allow her to fully understand its full
reason for denying the requested adjournment.
[7]
The
respondent counters that the right to counsel is not absolute and that a fair
hearing was not denied in this case as the issues were not complex and the
applicant was properly able to represent her own interests and to explain the
basis of her claim to the RPD: Mervilus v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1206, 262 F.T.R. 186.
[8]
While
it is correct that some circumstances require an applicant to be represented in
order to ensure that his or her case is decided according to natural justice,
the requirement of representation is not absolute. The decision to adjourn a
scheduled hearing is discretionary and due deference must be shown to the RPD
in its scheduling of hearings. The current case does not fall within the category
described by Justice Sean J. Harrington at paragraph 25 of Mervilus. It
must also be noted that the transcript of the hearing shows that the applicant
indicated to the RPD at the outset that it was her preference to continue with
the hearing in the absence of her counsel. I do not find that the refusal to
adjourn the hearing in order to allow the applicant to be represented resulted
in a breach of procedural fairness.
[9]
Next,
the applicant submits that her right to procedural fairness was denied by the
reliance of the RPD on documents which were disclosed in the middle of the
hearing. The failure to disclose documentary evidence in sufficient time to
allow the applicant to make ‘full answer and defence’ is a breach of natural
justice: Nrecaj v. Canada (Minister of Employment
and Immigration), [1993] 3 F.C. 630, 65 F.T.R. 171.
[10]
The
respondent answers that the documents disclosed mid-hearing were not relied
upon by the RPD as they were not directly relevant to the applicant’s case. One
concerned the criminalization of marital rape in Thailand and the
other explained limitations on the access by media to information in the hands
of the authorities regarding domestic violence. Both documents are only
relevant to the circumstances of the applicant in giving some context of the
seriousness with which Thai authorities view domestic violence.
[11]
The
law is clear that an applicant must be permitted to know what evidence will be
used in the examination of his or her claim in order to allow for the provision
of explanations. That being said, evidence which is only peripherally relevant
to an applicant’s claim and which would not require an explanation cannot, by
its very nature, be relevant to a ‘full answer and defence’. In the case at
bar, I cannot see how the applicant would have needed to address the two
documents the timing of disclosure of which she contests. The RPD clearly
understood her claim and the evidence surrounding it. It is clear from the
transcript, as well, that the Refugee Protection Officer ensured that the
applicant had seen, in a pre-hearing conference, all the documentary evidence
which she would be presenting. Ms. Phromsena was aware of the ‘case she had to
meet’ and the duty to provide a fair hearing was not breached.
[12]
Finally,
the applicant submits that the RPD erred in ignoring documentary evidence which
describes the ineffectiveness of measures adopted by the Thai authorities to
counter domestic violence and which supported her contention that the
authorities would fail to become involved in domestic abuse matters.
[13]
The
respondent submits that the RPD need not refer in its reasons to every piece of
evidence proffered by an applicant. The RPD’s serious concerns about the
credibility of the applicant were combined with its assessment of the documentary
evidence and resulted in the negative decision on her refugee claim. Such
assessment was open to the Panel and was not in error.
[14]
It
is trite law that the RPD is presumed to have considered all the evidence
before it absent significant indications to the contrary: see, for example, Florea
v. Canada (Minister of
Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 598.
Having found the applicant’s story not to be credible, the Panel is not then to
be faulted for failing to address documentary evidence which was not relevant
to that same story. The Panel did not ignore relevant evidence and its
decision was not unreasonable. Accordingly, the application for judicial review
will be dismissed.
[15]
No
question of general importance has been proposed for certification and none
arises on these facts.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for
judicial review is dismissed. No questions will be certified.
"Louis S. Tannenbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-647-08
STYLE OF CAUSE: PHAKCHIRA
PHROMSENA v. M.C.I.
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: September
2, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: TANNENBAUM D.J.
DATED: October
10, 2008
APPEARANCES:
|
Daniel Winbaum
|
FOR THE APPLICANT
|
|
Michael
Butterfield
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Klein, Winbaum
& Frank
Barristers and
Solicitors
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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