Docket: IMM-2500-14
Citation:
2015 FC 6
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 5, 2015
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
|
JOSEPH REZKO
|
SAYDI JAJJO
|
MERIAM REZKO
|
Applicants
|
and
|
MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision by Officer C. Palmer [Officer] of Citizenship and Immigration
Canada [CIC] dated February 6, 2014, rejecting the applicants’ application for
a pre-removal risk assessment [PRRA] on the ground that they had not
demonstrated more than a mere possibility of persecution or established, on a
balance of probabilities, that they would face a risk to their life or a risk
of torture or cruel and unusual treatment if returned to Syria.
[2]
The applicants left their country in 2010. Their
claim for refugee protection was rejected on December 12, 2011 (leave refused
by this Court on April 11, 2012). In March 2012, the applicants submitted a
PRRA application, which was refused on June 7, 2013, and which resulted in an
application for leave and judicial review. The applicants were represented at
the time by Luc R. Desmarais [former counsel]. On December 13, 2013, the former
counsel discontinued the review application after reaching an agreement with the
respondent that there would be a new review of the PRRA application. In fact,
on December 20, 2013, a CIC officer advised the former counsel that the
applicants had until January 12, 2014, to submit any new documentation or
information to add to their PRRA application. On February 6, 2014, the Officer
refused the PRRA application.
[3]
The applicants are now accusing their former
counsel of professional negligence because they say they knew nothing about the
settlement, the discontinuance or the opportunity to submit new evidence. In
addition, they say that their former counsel was not acting as a designated
representative of the applicants in the PRRA application; rather, it was the immigration
consultant who completed the PRRA application. In the alternative, they submit
that the impugned decision was unreasonable.
[4]
The application for judicial review must fail.
[5]
Exceptionally, this Court may consider that
counsel’s failure or negligence can result in a breach of procedural fairness
and justify a new hearing before an administrative decision-maker, but only if
the fault alleged falls within professional incompetence and the outcome of the
case would have been different had it not been for counsel’s wrongful conduct (R
v GDB, 2000 SCC 22 at paras 26-29; Yang v Canada (Citizenship and
Immigration), 2008 FC 269 at paras 19-24; Kaur v Canada (Citizenship and
Immigration), 2014 FC 505 at paras 23-24).
[6]
Moreover, this Court has developed the Procedural
Protocol re: Allegations Against Counsel or Other Authorized Representative in Citizenship,
Immigration and Protected Person Cases Before the Federal Court (March 7,
2014, Notice to the Legal Profession, online: Federal Court
http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Notices/procedural-protocol_7mar2014)
[Procedural Protocol]. Under this protocol, current counsel must notify
the former counsel in writing with sufficient details of the allegations of
incompetence or negligence against him or her and must give the former counsel
seven days to respond, in order to determine whether the allegations are
founded even before filing and serving the application record. In addition, if
leave is granted in the case, current counsel must inform the former counsel, who
may make a motion for leave to intervene.
[7]
In this case, because the Procedural Protocol
was not followed, the only information the Court has regarding the conduct of
the applicants’ former counsel consists of general allegations in the principal
applicant’s affidavit. The former counsel did not receive notice, he did not
respond to the allegations against him, and he did not ask to intervene. The
Court therefore does not have the benefit of the former counsel’s
representations.
[8]
In the principal applicant’s affidavit, he
indicates only that the former counsel did not advise them of the
discontinuance or the opportunity to submit new evidence. However, the
principal applicant does not indicate that he was following his own case or that
he himself had tried to contact his lawyer in the period between the filing of
the application for judicial review and the receipt of the PRRA decision. In
addition, the applicants now submit that they were prejudiced, referring to
various passages of the impugned decision that mention the lack of additional
evidence, but the principal applicant’s affidavit, memorandum and supplementary
memorandum do not identify the nature of this new evidence or how its
production could lead to a different result.
[9]
The applicants’ general allegations are not
sufficient in this case. The applicants did not follow the Procedural Protocol,
which means that the Court does not have the former counsel’s representations.
Moreover, the applicants have not shown that the former counsel’s conduct
prejudiced them. The Court still does not know what the applicants’ real
intentions are. However, they have new counsel, even though he did not find it
appropriate to request an extension of time to submit a new affidavit or to ask
that the hearing be adjourned so that the former counsel could be involved (if
only to confirm that these clients had not filed a complaint with the Barreau
du Québec against their former counsel). Accordingly, the Court is unable to
find that the former counsel’s actions resulted in a breach of procedural
fairness that would justify setting aside the impugned decision.
[10]
The applicants also submit that they designated
Mr. Raed Makho [consultant] to represent them in dealings with CIC regarding the
PRRA application (see forms IMM 5476 dated February 18, 2013). They contend
that all communications between CIC and the applicants had to go through the
consultant, not the former counsel. There is no indication that the applicants
changed or withdrew the consultant’s authorization. The fact that the
applicants instructed Mr. Desmarais to represent them in this Court does not
imply that the applicants had also instructed him to represent them in dealings
with the CIC.
[11]
I concur with the respondent that CIC did not
act improperly in the circumstances. As a result of the exchange of
correspondence with Mr. Desmarais in December 2013 after the discontinuance—he
did not ask the CIC to redirect the correspondence to the consultant—CIC could
reasonably believe that he was acting as the applicants’ representative.
Moreover, I am also not satisfied that CIC’s Operational Manual Inland
Processing at Chapter 9 Use of Representatives [IP 9] is
determinative because there was a final decision on the PRRA application for
which the consultant was designated. Based on the apparent agency doctrine,
everything indicated with respect to third parties, including CIC, that the
applicants’ former counsel was acting with the consent of the applicants who
had authorized him to discontinue the review application (see for example Wandlyn
Motels Limited et al v Commerce General Insurance Co et al, [1970] S.C.R. 992,
1970 CanLII 162 (SCC) at pp 1003-1004; Bois Expansion inc c Yaraghi,
2008 QCCA 739 at para 27). The former counsel represented the applicants when
the application filed with this Court was settled, and CIC could therefore send
the former counsel the letter indicating that the applicants had until a
certain date to file new evidence because this was a communication directly
related to the settlement reached with the respondent.
[12]
On the merits, the applicants have not shown
that the decision was unreasonable. In the impugned decision, the Officer
conducted a complete and well reasoned analysis of the evidence submitted by
the applicants in their PRRA application in March 2012 as well as the more
recent objective evidence. The Officer extensively assessed the current
conditions in Syria, generally and more specifically for Christians, and her
analysis shows that she considered all the evidence, including the evidence
supporting the applicants’ claims The Officer concluded that, based on the
evidence before her, Christians in Syria do not face persecution throughout the
country but that Christians face a risk under paragraph 97(1)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27, in the city of Homs, while
internal flight alternatives are available in Damas, Alep and other regions. This
was an acceptable outcome given the applicable law and the evidence before the
Officer.
[13]
Since the applicants have not established that
there was a breach of procedural fairness or that the decision was
unreasonable, the application for judicial review will be dismissed. Counsel
agree that no question of general importance was raised in this case and, therefore,
the Court will not certify a question.