Docket: IMM-3426-15
Citation:
2016 FC 548
Ottawa, Ontario, May 16, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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MUHAMMAD HABIB
GHAURI,
RIFFAT HABIB,
AND
MUHAMMAD
SHERDIL GHOURI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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and
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MAX BERGER
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Intervener
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JUDGMENT AND REASONS
I.
Background
A.
Nature of the Application
[1]
This application for judicial review, brought
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] seeks to set aside the June 8, 2015 decision of the
Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada
[IRB] , dismissing the applicants’ appeal from the Refugee Protection Division
[RPD] of the IRB. The RPD rejected the applicants’ refugee claim after finding
they were neither Convention refugees nor persons in need in protection
pursuant to sections 96 and 97 of the IRPA respectively.
[2]
In addition to arguing that the RAD committed a
reviewable error on the merits, the applicants submit that the incompetence of
their counsel before the RAD prejudiced their position and caused a breach of
natural justice. In advancing this position the applicants have complied with
Chief Justice Crampton’s March 7, 2014 Procedural Protocol regarding
Allegations Against Counsel or Other Authorized Representative in Citizenship,
Immigration and Protected Person Cases before the Federal Court.
[3]
The RAD counsel was granted intervener status
and permitted to file written representations as well as provide oral
submissions responding only to the allegations of solicitor
negligence/incompetence.
B.
Facts
[4]
The applicants are a married couple and their
three children. The husband, wife and one of their children are citizens of
Pakistan. The other two children were born in the United States while the
applicants were living there, and are nationals of the United States.
[5]
The events at issue began when the applicants
returned from the United States to Pakistan in June, 2014. In discussions with
friends in July, 2014, the principal applicant, Mr Ghauri [the PA], a
businessman, apparently angered some individuals as a result of supportive and
positive comments he made regarding members of the Ahmadi faith. As a result of
these comments the PA began to feel ostracized and his business dropped off.
Attempted assaults occurred as well as threatening phone calls.
[6]
The applicants fled to Canada on valid visas in
September, 2014 and requested protection several weeks later. Subsequent to
arriving in Canada, the PA learnt that his cousins have said the applicants are
infidels and deserve to be punished.
C.
RPD Decision
[7]
The RPD rejected the applicants’ claim after
finding: (1) the applicants’ evidence relating to the events alleged was
neither credible nor reliable; (2) adequate state protection existed in
Pakistan; (3) no nexus to a Convention ground existed and the applicants faced
a generalized rather than personalized risk; and (4) viable Internal Flight
Alternatives [IFA] existed in Islamabad and Karachi.
[8]
In determining the applicants’ evidence was not
credible or reliable the RPD notes that there was no evidence linking the PA’s
reports of attempted assault with his earlier expression on religion. The RPD
also identifies a number of instances where evidence was not included in the
PA’s narrative that was directly relevant to issues such as state protection
and personal risk, information that one would reasonably expect to be contained
in the narrative in light of the PA’s burden.
[9]
On the question of IFA, the RPD rejected the
PA’s claim that the Taliban were targeting him. After doing so, the RPD found
that any potential agents of harm were local and there was no persuasive
evidence that potential agents of harm had influence anywhere in Pakistan. The
RPD rejected the applicants’ objections to the proposed IFAs of Islamabad and
Karachi as the objections failed to satisfy the second prong of the IFA test.
D.
RAD Decision under Review
[10]
The RAD confirmed the RPD’s decision that the
applicants are neither Convention refugees nor persons in need of protection
based on the IFA finding only.
[11]
The RAD notes that the Refugee Appeal
Division Rules, SOR/2012-257 [RAD Rules] require that appellants provide in
their Memorandum full and detailed submissions regarding the errors that are
the grounds of the appeal and the location of those errors in the RPD’s
decision (Sub-rule 3(3)(g)). The RAD notes that the applicants’ Memorandum
challenged the RPD’s credibility findings as well as the RPD’s conclusions on
state protection, nexus and generalized risk but did not make any submissions
on IFA.
[12]
The RAD then concludes at paragraph 20 of its
decision that, “It is clear that the IFA determination
stands on its own – that is, it is not influenced by or dependent on other
findings, including credibility.” The RAD then concurred with the RPD’s
findings on IFA.
II.
Issues and Analysis
A.
Positions of the Parties
(1)
Applicants
[13]
The applicants submit the RAD’s decision was:
(1) unreasonable; or (2) is the result of a breach of natural justice arising
from the incompetence of the intervener, counsel before the RAD.
[14]
The applicants argue that the RAD unreasonably
found the RPD’s IFA determination stood on its own. The applicants submit that
the RPD’s credibility findings were connected to the IFA finding in that had
the RPD believed that the applicants had been targeted by the Taliban, the IFA
decision would have been very different. An error in the credibility findings
would affect the reasonableness of the IFA findings and as such the RAD was
obligated to consider the arguments placed before it, including the submission
that the RPD erred in its determination that the Taliban did not target the
applicants. The failure to do so, the applicants argue, renders the decision
unreasonable.
[15]
In the alternative the applicants argue that the
intervener was negligent or incompetent in failing to (1) request the
applicants’ RPD file from RPD counsel and (2) raise an argument before the RAD
on IFA.
(2)
Respondent
[16]
The respondent argues that the RAD’s finding
that the applicants had viable IFAs was reasonable. The RAD reasonably limited
its assessment to the material before the RPD and made the indisputable finding
that the applicants did not contest the RPD’s IFA finding which was
determinative of the applicants’ claim.
[17]
On the issue of incompetent counsel before the
RAD, the respondent argues that the jurisprudence demonstrates that clients
will be held to the consequences of their choice of adviser (Cove v Canada
(Minister of Citizenship and Immigration), 2001 FCT 266 at para 6, 104 ACWS
(3d) 761 (TD) [Cove]). Counsel incompetence will only constitute a
breach of natural justice in extraordinary circumstances and an applicant has
the burden of establishing (1) that their counsel’s act or omission constituted
incompetence without the benefit and wisdom of hindsight, and such incompetence
must be sufficiently specific and clearly supported by the evidence and (2) the
result would have been different but for the incompetence (Galyas v Canada
(Minister of Citizenship and Immigration), 2013 FC 250 at paras 83-84, 429
FTR 1 [Galyas]; Memari v Canada (Minister of Citizenship and
Immigration), 2010 FC 1196 at paras 33, 36, 378 FTR 206 [Memari]; R
v GDB, [2000] 1 S.C.R. 520 at paras 27-29).
[18]
After citing the law on this issue, the
respondent did not take a position on whether the counsel incompetence occurred
in this case.
(3)
Intervener
[19]
The intervener’s submissions go beyond the
allegations of negligence/incompetence and address the merits of the
application contrary to the February 12, 2016 Order granting intervener status.
I have therefore not addressed the intervener’s submissions as they relate to
the merits of the application.
[20]
The intervener submits that the RAD’s negative
decision is not the result of counsel incompetence. The intervener argues that
this matter was handled in accordance with his long standing practice in the
immigration field and he did so in a competent and professional manner. He did
not request the file from RPD counsel only after determining that the
applicants provided him all the information required for the appeal, he
assigned carriage of the file to an experienced associate and the decision of
the associate not to pursue an IFA argument was a strategic decision based on
the evidence that was placed before the RPD and the decision rendered.
B.
Issues
[21]
The application raises the following issues:
(1)
What is the applicable standard of review?
(2)
Did the RAD err in finding that the RPD’s
finding on IFA was independent of all other findings the applicants challenged
before the RAD, including credibility?
(3)
If the RAD decision is reasonable, was the
intervener incompetent or negligent before the RAD and did this lead to a
breach of natural justice?
C.
Analysis
(1)
What is the applicable standard of review?
[22]
The parties submit, and I agree that this Court
applies a reasonableness standard of review when reviewing the RAD’s
conclusions on its own decision-making process and the RAD’s review of the
RPD’s decision (Huruglica v Canada (Minister of Citizenship and Immigration),
2016 FCA 93 at paras 32, 35 [Huruglica]; Ngandu v Canada (Minister of
Citizenship and Immigration), 2015 FC 423 at para 12, 34 Imm LR (4th) 68).
The correctness standard of review applies to the allegations of incompetent or
negligent representation as issues of procedural fairness are engaged (Galyas
at para 27).
[23]
The RAD must apply the correctness standard of
review with respect to reviewing findings of law, as well as findings of fact
and mixed fact and law of the RPD that raise no issue of credibility of oral
evidence and must take a case-by-case approach to the level of deference it
owes to the relative weight of testimony and their credibility or lack thereof
(Huruglica at paras 37, 69-71, 103).
(2)
Did the RAD err in finding that the RPD’s
finding on IFA was independent of all other findings the applicants challenged
before the RAD, including credibility?
[24]
I am of the opinion that the RAD committed a
reviewable error in concluding that the “IFA
determination stands on its own – that is, it is not influenced by or dependent
on other findings, including credibility” (RAD decision at para 20).
[25]
There was a link in the RPD’s decision between
the credibility findings flowing from the RPD’s analysis under sections 96 and
97, and the IFA determination.
[26]
This linkage, in my view, required that the RAD
consider and address the RPD’s credibility determinations. The applicants
contested the RPD’s credibility findings and findings of fact as they related
to the issue of the Taliban as agents of persecution, advancing the following
submissions to the RAD in their Memorandum:
10. The RPD at paragraph 23 of the
decision impugns the Applicant’s credibility further by stating that the
Appellant did not mention the calls from the Taliban in his BOC narrative.
However, this is clearly incorrect: At line 53 of the Appellant’s BOC, he says,
“Later I began receiving threatening phone calls from the Taliban that my days
were over because I had changed my faith and because I was agitating for Ahmadi
faith.”
11. This written testimony is entirely
consistent with both the timeline and the details provided at the hearing. The
Board Member clearly made a mistake in finding that the Appellant did not
mention the threatening calls in the BOC, further cementing the Appellant’s
argument that the credibility analysis is erroneous.
[27]
The PA also provided a statutory declaration to
the RAD reiterating his fear of the Taliban in Pakistan.
[28]
The RPD’s finding that the Taliban were not the
agents of persecution was in my opinion a condition precedent for the RPD’s
determination that there would be a viable IFA as the fears and risks did not
flow from the Taliban but rather were local in nature. The RAD failed to
address the RPD’s factual and credibility determinations underpinning the IFA
finding. These factual and credibility findings were directly relevant to the
issue of the Taliban as an agent of persecution and the RAD was placed on
notice by the applicants that the RPD had misconstrued the contents of the
applicant’s BOC as it related to this issue. In the circumstances I am not
satisfied that the outcome would have been the same had the RAD considered the
credibility findings relevant to the IFA analysis undertaken by the RPD.
[29]
I will allow the application for that reason.
[30]
However, I wish to make the following comments
on the RAD’s role and obligations and an appellant’s onus before the RAD in
light of the recent decisions of the Federal Court of Appeal on the RAD. In my
view Huruglica at para 103 and Singh v Canada (Minister of
Citizenship and Immigration), 2016 FCA 96 at paras 54-55 [Singh]
underscore the views expressed by Justice René LeBlanc in Dhillon v Canada
(Minister of Citizenship and Immigration), 2015 FC 321 at paras 18-20 [Dhillon],
a case which the RAD relied on when interpreting subsection 110(1) of the IRPA
and RAD Rule 3(3)(g) in this case.
[31]
Subsection 110(1) of the IRPA provides that a
person or the Minister may appeal to the RAD against a decision of the RPD, in
accordance with the rules of the Board. RAD Rule 3(3)(g) places the onus on the
appellant to identify in their Memorandum the errors that are the grounds of
the appeal and the location of the errors in the RPD’s decision or in the audio
or other electronic recording of the RPD hearing.
[32]
The Federal Court of Appeal in Singh, in
the context of discussing subsection 110(4) of the IRPA, held at para 55 that “These rules must be respected, and it must be presumed that
the explicit choices that were made match the objective pursued. It is not the
responsibility of the courts to rewrite such provisions when they are intelligible
and unequivocal.” That principle should equally apply to the appellant’s
onus to identify the errors of the RPD on appeal as discussed in Dhillon at
paras 18-20.
[33]
Indeed, the Federal Court of Appeal in defining
the RAD’s role in Huruglica held at para 103 “Thus,
after carefully considering the RPD decision, the RAD carries out its own
analysis of the record to determine whether, as submitted by the appellant, the
RPD erred.” This further reinforces the principle that it is the
appellant’s responsibility, not the RAD’s, to “establish
that the RPD erred in a way that justifies the intervention of the RAD. It is
not the RAD’s function to supplement the weaknesses of an appeal before it”
(Dhillon at para 20).
[34]
Here the applicants alleged to the RAD that the
RPD erred in finding the Taliban were not the agents of persecution, and the
RAD could not escape its obligations set out in Huruglica at para 103 by
relying on the RPD’s IFA finding without more. This was a reviewable error in
the circumstances of this case. However, my decision on these facts should not
detract from the following principle that emerges from the case-law: appellants
before the RAD that fail to specify where and how the RPD erred do so at their
peril.
(3)
If the RAD’s decision is reasonable, was the
intervener incompetent or negligent before the RAD and did this lead to a
breach of natural justice?
[35]
In light of my conclusion that the RAD has
committed a reviewable error I will not address the issue of counsel competency
except to highlight and endorse the submission of the respondent on this
question. Clients will normally be held to the consequences of their choice of
adviser (Cove at para 6) and, except in extraordinary circumstances
where competency of counsel gives rise to a breach of procedural fairness that
compromised the reliability of the result, it is not for the Courts to address
issues of competency (Memari at paras 33, 36).
III.
Conclusion
[36]
The matter is returned to the RAD for
redetermination, a redetermination that is to consider the RPD’s factual and
credibility findings that impact upon or are relevant to the IFA assessment.
[37]
The applicants’ counsel requested at the hearing
of this matter that should the decision be returned for redetermination that
the applicants be permitted to make further submissions on IFA. Sub-rule 29(2)
of the Refugee Appeal Division Rules, SOR/2012-257 speaks to a
circumstance where a person wishes to advance written submissions not
previously provided, requiring that person make an application to the Division
in accordance with RAD Rule 37. The making of further IFA submissions on
redetermination is a question that falls within the discretion of the RAD to
address and will be left there. The parties have not identified a question of
general importance.
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