Docket: IMM-2800-15
Citation:
2016 FC 441
Ottawa, Ontario, April 20, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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ZEF LESI, SANJA
LESI AND SANY LESI
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
brought pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]. The underlying issues in this
judicial review stem from a decision of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada [IRB] rejecting the applicants’
refugee claim finding they are neither Convention refugees nor persons in need
of protection and a decision of the Refugee Appeal Division [RAD] of the IRB,
dismissing the appeal from the RPD for a lack of jurisdiction. There are
several decisions identified and addressed later in this Judgment and Reasons
that may be captured within the scope of the application.
[2]
This is the third judicial review application
brought by these applicants regarding the RPD and the RAD decisions. Counsel
for the applicants was the same on each of the judicial review applications.
The respondent submits this application is an abuse of this Court’s process
constituting special reasons for awarding costs against the applicants within
the meaning of Rule 22 of the Federal Courts Citizenship, Immigration and
Refugee Protection Rules, SOR/93-22 [FC IRPR] and potentially against their
solicitor personally.
[3]
The application fails in respect of all the
potential decisions under review for the reasons that follow.
II.
Background
[4]
The applicants are a family, the principal
applicant [PA] Zef Lesi, his wife Sanja Lesi and their child Sany Lesi. They
are all citizens of Croatia. Zef is Roman Catholic and ethnically of Albanian
descent. Sanja is of mixed Croat-Albanian ancestry.
[5]
They arrived in Canada on October 27, 2011 and
claimed refugee protection upon arrival due to their race and nationality under
section 96 of the IRPA. They also claimed protection under section 97 of the
IRPA. In advancing their claim the applicants made the following allegations:
A.
The PA experienced persecution for his entire
life in Croatia due to being ethnically Albanian;
B.
On September 4, 2006 four Croatian men beat
Sanja, she went to the hospital but the police did nothing because they were
Albanian;
C.
On September 24, 2011, five Croatian men
attacked and beat the PA. He knew three of them and one of them was a police
officer. He did not report the attack to the police because nothing would have
been achieved; and
D.
On September 28, 2011 individuals broke into the
applicants’ home and wrote racist death threats on the walls. Again the
applicants did not seek police protection on the basis that they believed it
would be worthless to do so.
[6]
Their application was heard by the RPD in March,
2014. In April, 2014 the RPD dismissed the applicants’ claim concluding the
applicants were not credible and disbelieved their narrative on the basis that:
A.
There were no references in the documentary
evidence to discrimination or persecution of Roman Catholics of Albanian
descent in Croatia;
B.
The applicants failed to provide any objective
evidence to support their alleged fear, particularly after the PA testified
that “We had some. But not here” (Certified
Tribunal Record at page 403) notwithstanding the three years the applicants had
to identify such documentation;
C.
The applicants undermined their credibility
after failing to claim protection in safe third countries on three occasions,
as such their actions were inconsistent with their subjective fears,
particularly in light of the PA’s testimony that the applicants always feared
for their lives in Croatia;
D.
The applicants’ failed to provide any
corroborative evidence such as police or medical reports in respect of three
alleged incidents of persecution;
E.
The applicants’ own evidence relating to
education, access to health care and employment in Croatia does not support the
allegation of experiencing discrimination at the level of persecution in
Croatia; and
F.
The objective documentary evidence refers to
Croatia as a democratic state, that ethnic relations were stable overall
despite some instances of violence against ethnic minorities, particularly
ethnic Serbs and Roma. The RPD found this evidence contradicted the applicants’
subjective fear, and also supported a conclusion that even if the applicants
did have genuine subjective fears, that these fears were not objectively
well-founded.
[7]
The RPD further held that even if the applicants
were credible, it would reject the claim on the issue of state protection. The
RPD concluded that the applicant’s allegation that there would be no point in
seeking police protection, without providing objective evidence to corroborate
the allegation beyond the one negative interaction with the police does not
constitute clear and convincing evidence rebutting the presumption of state
protection in Croatia.
[8]
The applicants appealed the RPD’s decision to
the RAD. The RAD dismissed the appeal for lack of jurisdiction. The RAD
explained that the Balanced Refugee Reform Act, SC 2010, c 8 as amended
by the Protecting Canada’s Immigration System Act, SC 2012, c 17
provides that a decision made by the RPD in respect of a claim for refugee
protection referred to the RPD before August 15, 2012 is not subject to appeal
to the RAD. The RAD decision notes that the applicant’s refugee claims were
referred to the RPD on October 27, 2011.
[9]
The applicants filed an application for judicial
review (IMM-4247-14) in this Court and identified the RPD and RAD’s decisions
[the First Application]. They then filed a motion for an extension of time to
file their application record.
[10]
On August 12, 2014, Justice Michel Shore denied
the motion for an extension of time to file the application record on the basis
that there had been a failure to demonstrate a continuing intention to pursue
the matter [the Justice Shore Decision].
[11]
On September 30, 2014, a Registry Officer with
the Court certified that Chief Justice Paul Crampton ordered, on August 28,
2014, that the application for leave is dismissed due to the failure to file an
application record [the Chief Justice Crampton Decision].
[12]
On December 3, 2014, the Canada Border Services
Agency [CBSA] granted the applicants a deferral of removal until July 3, 2015
in order to allow the minor child to finish the school year [the Notice of
Deportation].
[13]
On February 27, 2015 the applicants filed a
second application for judicial review to this Court (IMM-975-15) and
identified (1) the Notice of Deportation to take effect in July of 2015; and
(2) the above referenced RAD and RPD decisions [the Second Application]. The
applicants requested, among other things, (1) an order granting the stay of
deportation; (2) that the previous order for dismissal of judicial review be
vacated and judicial review be allowed to proceed; and (3) that the applicants
be granted a pre-removal risk assessment [PRRA].
[14]
On March 2, 2015, the applicants filed a motion
seeking to stay their removal to Croatia scheduled for July 3, 2015 and to
re-open the First Application.
[15]
On April 28, 2015 Justice Sandra Simpson
dismissed the application for leave and the stay motion on the basis that the
stay motion was premature and that the Court has no jurisdiction to re-open the
First Application [the Justice Simpson Decision].
[16]
On June 8, 2015, the applicants requested a
further deferral of their removal on the basis of Ms. Lesi’s pregnancy and the
best interests of the applicant’s child Sany Lesi. On June 11, 2015, a CBSA
Enforcement Officer denied the request to defer the removal order because there
was not a sufficient basis to warrant a deferral of the execution of removal
from Canada [the CBSA Decision].
[17]
On June 16, 2015 the applicants filed a third
application for judicial review with this Court (IMM-2800-15) [the Third
Application]. The applicants stated they sought judicial review of (1) the
Notice of Deportation to take effect on June 29, 2015 and (2) the RAD and RPD
decisions.
[18]
On June 16, 2015, the applicants filed a motion
to stay their removal scheduled for June 29, 2015.
[19]
On June 26, 2015, Justice René LeBlanc granted
the applicants’ motion for the stay of their removal to Croatia scheduled for
June 29, 2015 until the final disposition of the applicant’s application for
leave and judicial review against the CBSA Decision [Justice LeBlanc Stay
Order].
[20]
On October 22, 2015, Justice LeBlanc granted
leave for judicial review of the RPD’s decision for the purpose of the Third
Application [the Justice LeBlanc Leave Application Order].
III.
Issues
[21]
The application raises the following issues:
A.
What is the applicable standard of review;
B.
What is the effect of the Justice LeBlanc Leave
Application Order in light of the previous Justice Shore Decision, Chief
Justice Crampton Decision and Justice Simpson Decision;
C.
Which decision is this Court reviewing;
D.
Is the Notice of Deportation reviewable;
E.
Did the Justice LeBlanc Stay Order and the
Justice LeBlanc Leave Application Order [the Justice LeBlanc Orders] render
judicial review of the CBSA Decision moot;
F.
Was the RAD’s decision correct in law;
G.
Was the RPD’s decision reasonable; and
H.
Does this Third Application constitute an abuse
of process that gives rise to special reasons for the purpose of Rule 22 of the
FC IRPR justifying an order of costs against the applicants and/or their
solicitor personally?
IV.
Anaylsis
A.
Standard of Review
[22]
With the exception of the RAD decision, the
decisions potentially engaged on the Third Application involve questions of
fact and mixed fact and law to which the reasonableness standard of review
applies (Alhayek v Canada (Minister of Citizenship and Immigration),
2012 FC 1126 at paras 49-50, 418 FTR 144). The impugned RAD decision on the
other hand engages a true question of jurisdiction to which a correctness
standard of review applies (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190
at para 59 [Dunsmuir]).
B.
Justice LeBlanc’s Leave Application Order
[23]
The circumstances arising in the Third
Application are analogous to those found in Guzman v Canada (Minister of
Citizenship and Immigration), 2002 FCT 15 at para 5, 215 FTR 299 [Guzman].
Guzman dealt with the applicant’s second application for judicial review
of a decision by the Minister’s Delegate’s that found the applicant a danger to
the public. The first application had been dismissed, however, leave was
granted on a second application by Justice Lemieux. The respondent requested
that Justice Marc Nadon dismiss the second application on the grounds of abuse
of process and/or res judicata. Justice Nadon recognized that the second
judicial review application was identical to the first noting at paragraphs 4
to 5 and 7:
[4] I start with the proposition
that Mr. Justice Lemieux ought not to have granted leave to the applicant to
commence a second judicial review application. That proposition is, in my view,
clearly supported by the authorities [emphasis added], and in particular,
by the judgment of the Federal Court of Appeal in Metodieva v. Canada
(1998), 132 N.R. 38. In Metodieva, the applicant, whose first
application for leave to commence judicial review proceedings in respect of a
decision of the Refugee Board was dismissed by Hugessen J.A. on December 18,
1990, filed a second application for leave on May 15, 1991, in regard to the
same decision. Décary J.A., who wrote the Reasons for the Court of Appeal,
referred, at page 43, to a passage from the decision of Jackett C.J. in Lamptey-Drake
v. M.E.I., [1980] 1 F.C. 64, where the Chief Justice stated, at page 67,
that:
[...] Once having considered and
dismissed an application for leave to appeal, the court has, in my view, no
jurisdiction to hear another application for leave to appeal in the same
matter.
[5] After quoting from Lamptey-Drake,
supra, Décary J.A. went on to state the following, at page 43:
[6] [...] The applicant is seeking to
obtain indirectly with respect to the order of December 18, 1990, what she
could not obtain directly through the procedure prescribed by the Rules. I
certainly could not acquiesce in such a development, which is completely
contrary to the rule of res judicata and the stability of the judicial process.
[…]
[7] Lastly, at page 43 of his
Reasons, Décary J.A. makes it clear that the Court did not have jurisdiction to
hear the second leave application:
[7] I think it is important to
point out that the court does not have jurisdiction to decide the matter again,
and that this is so whatever the reason for dismissing the first application
for leave. In the case at bar, the order of December 18, 1990, read as follows:
"The application, being unsupported by affidavit or other material, is
dismissed" [...]
[24]
Notwithstanding Justice Nadon’s disagreement
with Justice Lemieux’s granting of leave on the second application, Justice
Nadon concludes that he is not in a position to disregard the subsequent
decision to grant leave and dismiss the judicial review application as res
judicata, he states at paragraphs 8, 10 to 11 and 16:
[8] Consequently, it seems to me,
with respect, that it cannot be seriously disputed that the applicant's second
leave application ought to have been dismissed. However, my colleague Lemieux
J. granted the applicant leave to commence a second application.
[…]
[10] [T]he fact of the matter is that
Lemieux J. granted the applicant leave to commence a second judicial review
application. Is it now open to me to disregard his decision and dismiss the
judicial review application on grounds of abuse process and/or res judicata?
In my view, it is not…there was res judicata, in my view, with
respect to whether the applicant ought to have been allowed to commence a
second judicial review application. Although it is clear, in my view, that
leave ought not to have been granted, leave was granted. Since no appeal can be
taken from a decision granting or refusing leave, Lemieux J.'s decision is
final [emphasis added].
[11] I am supported in this view by the
decision of the Federal Court of Appeal in Canada (Solicitor General) v.
Bubla, [1995] 2 F.C. 680.
[…]
[16] Strayer J.A. states in unequivocal
terms that a judge of the Trial Division cannot review a decision made by
another judge of the Trial Division. Strayer J.A. also states in clear and
unambiguous terms that the hearing of an application for judicial review cannot
serve as a disguised appeal from the decision granting leave to commence that
judicial review application. I conclude from the Court of Appeal's decision in Bubla,
supra, that I cannot review or set aside, directly or indirectly, the
decision made by Lemieux J. to grant leave to the applicant to commence this
judicial review application [emphasis added].
[25]
As was the case in Guzman, I am of the
opinion that leave should not have been granted on the Third Application, at
least insofar as it sought review of either the RPD or RAD decisions. In my
opinion these matters were res judicata, a view reflected in the Justice
Simpson Decision. However, as was the case in Guzman, my disagreement
with the decision to grant leave, a decision that I expect arose out of the
repetitive and unclear nature of the Third Application, is not a basis to
refuse to consider the judicial review application, leave having been granted (Pascale
v Canada (Minister of Citizenship and Immigration), 2011 FC 881 at paras
41-44, 394 FTR 208).
C.
Which Decisions are being reviewed
[26]
The Court must determine which decision(s) it is
reviewing on this judicial review. The multiple decisions, the lack of clarity
in the Third Application and the content of the Justice LeBlanc Orders generate
a number of possibilities.
(1)
Justice LeBlanc’s Orders
[27]
Justice LeBlanc’s Stay Order states “The Applicants’ removal to Croatia, scheduled for June 29,
2015, is stayed until final disposition of the Applicants’ Application for
Leave and Judicial Review against the Canada Border Services Agency decision,
dated June 11, 2015, not to defer removal.” However, the Justice LeBlanc
Leave Application Order refers to “an application for
judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board dated April 24, 2014.” The Justice LeBlanc
Orders leave open the possibility that the Court could be reviewing (1) the
CBSA Decision and/or (2) the RPD decision.
(2)
Notice of Application for the Third Application
(IMM-2800-15)
[28]
The applicants in this Third Application state
the following:
The applicant seeks leave of the Court to
commence an application for judicial review of:
Notice of Deportation to take effect June
29, 2015; and [emphasis added]
[A]n application to the Immigration Appeal
Division for review of the decision of the Refugee Protection Division (RPD) of
the Immigration and Refugee Board dated April 24, 2014 (decision) served April
28, 2014, which refused the Applicants’ application to be deemed Convention
refugees or persons in need of protection under sections 96 and 97 of the Act.
The matter was appealed to the RAD and decision dismissed for lack of
jurisdiction, the parties having entered Canada in 2011 prior to the s. 36 cut
off date. The decision was served on May 27, 2014 to the principal claimant
prior to permitting perfection of the Appeal, in accordance with written direction
given by the Case Management Officer, RAD dated May 13, 2014.
[29]
The language used in identifying the RAD and RPD
decisions is almost identical to that used in the First and Second
Applications.
[30]
The applicants seek the following relief, which
is identical to that sought in the Second Application:
1.
That the Order be granted staying the
deportation of the Applicants;
2.
That the previous Order for dismissal of
judicial review be vacated and allowed to proceed in accordance with the timely
filed Notice of Application;
3.
That the Applicants be granted a pre-risk assessment
prior to removal in accordance with fairness, while giving them an opportunity
to be heard on the merits with new evidence;
4.
That this Honourable Court extend the time in
the event it is needed to grant the relief sought; and
5.
To grant such relief as this Honourable Court
deems just.
[31]
To complicate the matter even further, the
applicants in the Third Application identify the RAD as the recipient of the
Notice of Application but makes reference to the RPD file numbers. The
applicants’ Memorandum of Argument is similarly unclear, identifying the Third
Application as one being made to the “Immigration
Appeal Division for review of the decision of the Refugee Protection Division”
in paragraph 1 and identifying the RPD as the decision under review at
paragraph 6.
[32]
The Notice of Application for the Third
Application can be interpreted as asking the Court to review; (1) the Notice of
Deportation; (2) the Justice Simpson Decision and the Chief Justice Crampton Decision
to dismiss the applications for judicial review of the RAD decision; (3) the
RAD’s decision; and (4) the RPD’s decision. At no time do the applicants
specify that they are seeking an exemption from Rule 302 of the Federal
Courts Rules, SOR 98-106 [Federal Courts Rules].
[33]
Although both the applicants’ materials and the
Justice LeBlanc Orders identify the RPD’s decision, they inconsistently
identify other decisions which this Court should review. In the interests of
disposing of the issues possibly raised in the Third Application clearly and
finally, I will address each of the potential decisions falling within the
broad and unstructured Third Application filed by the applicant and within the
scope of the Justice Leblanc Orders.
(3)
The Notice of Deportation/Direction to Report
[34]
As the respondent submits and as reflected in
the Justice Simpson Decision, a Notice of Deportation, is an informational
communication, known as a Direction to Report, it is not a decision, and it is
not subject to judicial review (Bergman v Canada (Minister of Public Safety
and Emergency Preparedness), 2010 FC 1129 at para 18, 194 ACWS (3d) 1223).
D.
The CBSA Decision (June 11, 2015 Refusal to
Defer Removal)
[35]
Although the Justice LeBlanc Stay Order stayed
the applicants’ removal to Croatia “until the final
disposition of the Applicants’ Application for Leave and Judicial Review
against the Canada Border Services Agency decision dated the June 11, 2015, not
to defer removal”, I am of the view that Justice Leblanc’s Leave
Application Order, coupled with the passage of time has had the effect of
rendering the judicial review of the CBSA Decision moot.
[36]
In Baron v Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81, 309 DLR (4th) 411 [Baron],
Justice Nadon writing for the majority held the granting of a stay of removal
causing the passing of the date of removal does not necessarily render an
application for judicial review of a decision not to defer removal moot in
every case. Justice Nadon further held at paragraphs 29 to 31 that whether such
an application is moot due to the passing of the removal date will depend on
the proper characterization of the controversy that exists between the parties:
[29] I agree entirely with the parties
that the determination of the mootness issue depends on the proper
characterization of the controversy that exists between them. In this regard,
the parties implicitly concede that if the characterization of the dispute as
found by the Judge, i.e. "whether an applicant should be removed, and is
obliged to leave, on the scheduled removal date" (paragraph 45 of her
Reasons), is correct, then the judicial review application is moot. However,
they submit that the proper characterization is whether the appellants should
be removed prior to the determination of their H&C application. At
paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his
submission as follows:
[33] The correct
characterization of the controversy, however, is whether an applicant should be
removed prior to the happening of a particular event, such as prior to
the determination of a pending H & C application. It is then not the
passing of the removal date which renders the judicial review application moot,
but the happening of the event. This characterization of whether removal is
reasonably practicable prior to the happening of the event is entirely
consistent with the enforcement officer's mandate under section 48 of the IRPA
to execute a removal order as soon as reasonably practicable. It is this
characterization of the controversy that the Applications Judge should have
adopted, and erred in failing to do so.
[30] Since the appellants' H&C
application had not been dealt with at the time of the hearing before the
learned Applications Judge [and I am not aware of any determination having been
made since Dawson J. rendered her decision], the parties take the position that
the controversy still exists between them and thus that the matter is not moot.
[31] In my view, the parties have
properly characterized the nature of the controversy which exists between them.
I find support for this view in the Reasons given by Strayer D.J. in Amsterdam
v. M.C.I., 2008 FC 244, where he dismissed an application for judicial
review of the decision of an enforcement officer who had refused to defer the
applicant's removal from Canada. Although Strayer J. was of the view that on
the facts before him, the judicial review application was moot, he nonetheless
exercised his discretion to decide the application on its merits.
[37]
In this circumstance, unlike Baron, the
controversy between the parties related to Ms. Lesi’s pregnancy, with an
approximate due date of October 13, 2015, and the risks of travel by plane on
the scheduled date for removal, June 29, 2015, presented to her health and the
health of her unborn child. The Justice LeBlanc Stay Order granted the stay of
removal until the final disposition of the judicial review of the CBSA Decision
not to defer removal. The Justice Leblanc Leave Application Order granted leave
on October 22, 2015 for judicial review of the RPD decision. This had the
effect of surpassing the two dates that were in issue before Justice Leblanc on
the stay motion: June 29, 2015 and October 13, 2015. This judicial review of
the Third Application was heard on January 19, 2016, over three months after
the approximate due date of October 13, 2015. As a result, no live controversy
exists between the parties as it relates to the CBSA Decision effectively
rendering the matter moot.
[38]
Even if the live controversy between the parties
extended beyond October 13, 2015, that controversy relates to the RPD and RAD’s
decisions both of which are identified in the Third Application. Therefore,
judicial review of the CBSA Decision is moot.
(1)
RAD Decision
[39]
The RAD decision was based on subsection 36(1)
of the Balanced Refugee Reform Act, SC 2010, c 8 as amended by section
68 of the Protecting Canada’s Immigration System Act, SC 2012, c 17
which provides that an RPD decision in respect of a claim for refugee
protection referred to the RPD before the day on which that section comes into
force is not subject to an appeal to the RAD. As the RAD noted, that provision
came into force on August 15, 2012 (Order Fixing August 15, 2012 as the Day
on which Certain Sections of the Act Come Into Force, SI/2012-65, (2012) C
Gaz II, 1917). The relevant provisions state:
Balanced
Refugee Reform Act, SC 2010, c 8:
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36. (1) A
decision made by the Refugee Protection Division before the day on which this
section comes into force is not subject to appeal to the Refugee Appeal
Division.
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36. (1) N’est pas
susceptible d’appel devant la Section d’appel des réfugiés la décision de la
Section de la protection des réfugiés rendue avant la date d’entrée en
vigueur du présent article.
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Protecting
Canada’s Immigration System Act, SC 2012, c 17
amended subsection 36(1) of the Balanced Refugee Reform Act, SC 2010,
c8:
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68. Sections 36 to 37.1 of the Act are replaced by the following:
36. (1) A decision made by the Refugee Protection Division in
respect of a claim for refugee protection that was referred to that Division
before the day on which this section comes into force is not subject to
appeal to the Refugee Appeal Division.
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68. Les articles 36 à 37.1 de la même loi sont remplacés par ce
qui suit :
36. (1) N’est pas susceptible d’appel devant la Section d’appel
des réfugiés la décision de la Section de la protection des réfugiés à
l’égard de toute demande d’asile qui lui a été déférée avant la date d’entrée
en vigueur du présent article.
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Order Fixing August 15, 2012 as the Day on which
Certain Sections of the Act Come into Force,
SI/2012-65, (2012) C Gaz II, 1917:
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His Excellency
the Governor General in Council, on the recommendation of the Minister of
Citizenship and Immigration, pursuant to subsection 42(1) of the Balanced
Refugee Reform Act, chapter 8 of the Statutes of Canada, 2010, fixes
August 15, 2012 as the day on which section 2, subsection 15(4) and section
36 of that Act come into force.
|
Sur
recommandation du ministre de la Citoyenneté et de l’Immigration et en vertu
du paragraphe 42(1) de la Loi sur des mesures de réforme équitables
concernant les réfugiés, chapitre 8 des Lois du Canada (2010), Son
Excellence le Gouverneur général en conseil fixe au 15 août 2012 la date
d’entrée en vigueur de l’article 2, du paragraphe 15(4) et de l’article 36 de
cette loi.
|
[40]
Referral of the applicant’s application to the
RPD occurred on October 27, 2011(Certified Tribunal Record at page 58). The RAD
did not err in determining it lacked jurisdiction to consider the applicant’s
appeal from the RPD as it had been referred to the RPD before August 15, 2012.
(2)
RPD Decision
[41]
The applicants argue that the RPD erred in (1)
failing to consider relevant evidence; (2) failing to provide adequate reasons
for rejecting the evidence; and (3) in conducting a flawed state protection
analysis. I respectfully disagree.
[42]
The RPD disbelieved the applicants’ narrative on
a balance of probabilities due to multiple issues with credibility and rejected
the claim on the basis of credibility alone.
[43]
The RPD reasonably drew a negative credibility
inference from the applicants’ failure to claim protection in the UK in 2006
when visiting that country for six months and again when the PA failed to
provide a reasonable explanation for not claiming protection in the UK in 2010
when he visited for a funeral (Sahin v Canada (Minister of Citizenship and
Immigration), 2013 FC 664 at paras 40-43). The RPD considered the failure
to claim protection when presented with the opportunity to do so in the context
of the PA’s evidence that he had feared persecution in Croatia throughout his
life.
[44]
In addition to the credibility concerns arising
out of the applicants’ admitted failure to claim protection in the UK, the
applicants did not produce any objective documentary evidence to demonstrate
that Roman Catholics of Albanian descent faced persecution in Croatia. In this
regard the RPD notes that the applicants had approximately three years to
identify and produce documentary evidence in support of their claim. In
addition the RPD drew a negative inference from the applicants’ inability to
produce any impartial documentary evidence in the form of police or medical
reports to corroborate the three major incidents of alleged violence.
[45]
The credibility issues in totality provided the
RPD with a rational basis upon which to conclude that the applicants lacked a
genuine subjective fear of persecution in Croatia and to give little weight to
the documentary evidence the applicants provided in the form of letters and a
diagnosis report (Lopez v Canada (Minister of Citizenship and Immigration),
2009 FC 972 at paras 31-32, 190 ACWS (3d) 236).
[46]
Despite finding that credibility was
determinative of the claim, the RPD went on to address the issue of state
protection. The applicants argue that the RPD analysis was flawed as the RPD
conflated serious state efforts at protection with the adequacy of state
protection in the circumstances of the applicant. Again I disagree. Finding
that the applicants had failed to rebut the presumption of state protection was
within the range of possible acceptable outcomes based on the facts and the law
(Dunsmuir at para 47).
[47]
The applicants reported that in September, 2006
they approached the police for assistance, but the police did not respond
because the applicants were ethnically Albanian. The applicants did not attempt
to complain of this alleged police inaction to the Prosecutor’s Office or
approach the National Ombudsman after its establishment in 2009. The RPD
determined that the single negative interaction with the police was not enough
to rebut the presumption of state protection in a democracy such as Croatia (Ruszo
v Canada (Minister of Citizenship and Immigration), 2013 FC 1004 at para
51, 440 FTR 106). As such the applicants could not rely on this one incident as
an excuse for failing to approach the police or other state authorities when
further incidents occurred in 2011. While the applicants may disagree with this
finding and may well be able to advance other reasonable interpretations of the
evidence, their disagreement does not render the finding unreasonable (Dunsmuir
at para 47).
V.
Costs
[48]
Rule 22 of the FC IRPR provides that costs are
not awarded or payable for an application for leave, application for judicial
review or an appeal under the FC IRPR unless “special
reasons” exist. The term “special reasons”
is not defined and no definition has been developed in the jurisprudence (Ndungu
v Canada (Minister of Citizenship and Immigration), 2011 FCA 208 at para 6,
423 NR 228 [Ndungu]). A finding that special reasons for costs exist
under Rule 22 of the FC IRPR triggers this Court’s discretionary power over the
amount and allocation of costs under Rule 400 of the Federal Courts Rules
(Almrei v Canada (Minister of Citizenship and Immigration), 2014 FC 1002
at paras 64-65, 31 Imm LR (4th) 92 [Almrei]).
[49]
The respondent argues that the applicants
actions in refiling the Third Application for leave, arising from the same
matters which the Court already dismissed on two earlier occasions, amounts to
an abuse of process, giving rise to special reasons for costs. In support of
this position the respondent relies on Coombs v Canada (Minister of National
Revenue – MNR), 2015 FC 869 at para 28, 254 ACWS (3d) 980, where Justice
Denis Gascon held: “Abuse of process is a common law
principle permitting courts to stop proceedings that have become unfair or
oppressive. This includes situations where a party re-litigates essentially the
same dispute when earlier attempts at relief have failed.” The
respondent further notes that the refiling of a claim after it had been
dismissed for delay has also been held to be an abuse of process (Sauve v
Canada, 2002 FCT 721 at para 20, 115 ACWS (3d) 205).
[50]
The respondent notes striking similarities
between the three applications and, relies on Johnson v Canada (Minister of
Citizenship and Immigration), 2005 FC 1262 at para 26, 275 FTR 316, where
Justice Eleanor Dawson held “Special reasons may be
found if one party has unnecessarily or unreasonably prolonged proceedings, or
where one party has acted in a manner that may be characterized as unfair,
oppressive, improper or actuated by bad faith.”
[51]
The applicants submit that the Federal Court has
jurisdiction to hear immigration and refugee matters, and that in accordance
with the general principle reflected in Rule 22 of the FC IRPR costs should not
be awarded to the respondent in this case. However, the applicants argue that
if costs are to be awarded they should be awarded to the applicants on the
basis of the respondent’s delay and inappropriateness (Ndungu at
paragraph 7).
[52]
It should have been clear, if not to the
applicants then their counsel, Ms. Holly that Leave for Judicial Review of the
RAD and RPD decisions had been denied not once but twice. Despite orders from
this Court in the First Application (IMM-4247-14) and the Second Application
(IMM-975-15) the applicants’ counsel filed the Third Application identifying
these very decisions.
[53]
Where litigation is an attempt to re-litigate a
matter which the Court has previously determined the proper administration of
justice is undermined. This has been held to be an abuse of process (Almrei
at para 45). Again, this is the applicants’ third challenge of the same RAD and
RPD decisions; almost identical applications were filed in each instance. Furthermore,
this is the applicants’ second challenge of the Chief Justice Crampton
Decision. The Justice Simpson Decision is also challenged in the Third
Application notwithstanding that Decision clearly stated the Court has no
jurisdiction.
[54]
All of these circumstances point to a potential
finding that special reasons exist for an award of costs against the applicants
pursuant to Rule 22 of the FC IRPR. Furthermore, the applicants’ counsel Ms.
Holly advanced the Third Application on behalf of her clients. The respondent
has submitted that where counsel has contributed directly to the process abuse
then costs could be awarded against counsel personally, a possibility
contemplated by rule 404 of the Federal Courts Rules.
[55]
Ms. Holly was made aware of the possibility of
an award of costs payable by her personally both through the respondent’s
written submissions and in the hearing of this matter and she was provided the
opportunity to be heard. In the course of her submissions Ms. Holly made clear
that she was not acting in bad faith but rather seeking to vigorously advance
the interests of her clients and that she was acting in a pro bono
capacity.
[56]
In the circumstances of this case, I find the
applicants and their counsel’s above-referenced actions, while not pursued in
bad faith, were inappropriate and improper, amounting to an abuse of process
that could constitute special reasons for an award of costs under Rule 22 of
the FC IRPR. While I have struggled with the question of costs in this case,
such orders are discretionary and I have decided not to order of costs against
the applicants or against their counsel personally who acted pro bono in
this case.
VI.
Conclusion
[57] In summary:
A.
The Notice of Deportation is not a “decision” and is not subject to review by this Court;
B.
The Justice Simpson Decision and Chief Justice
Crampton Decision are not reviewable by this Court for the reasons set out
above, and in the Justice Simpson Decision;
C.
Judicial review of the CBSA Decision is moot;
D.
The RAD’s decision to dismiss the applicants’
appeal from the RPD for want of jurisdiction was correct in law;
E.
I am satisfied that the RPD did not commit any
reviewable errors in denying the applicants’ claim; and
F.
Costs are not awarded under Rule 22 of the FC
IRPR.
[57]
The application is denied. The parties did not
identify a question for certification.
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