Docket:
IMM-33-14
Citation: 2014 FC 875
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, September 15, 2014
Present: The Honourable Mr. Justice Martineau
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BETWEEN:
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JEAN DE DIEU IKUZWE
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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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JUDGMENT AND REASONS
[1]
The applicant challenges the legality of a decision
of the Refugee Protection Division of the Immigration and Refugee Board (Board)
denying his application to reopen the refugee claim.
[2]
The applicant is a citizen of Rwanda of Tutsi
ethnicity who left his country to come to Canada in January 2001. On April 24,
2003, his refugee claim was refused by the Board for the reason that there are serious
reasons to think that he was complicit in crimes against humanity within the
meaning of article 1F(a) and (c) of the Convention Relating to the Status of
Refugees (Convention) and that he cannot avail himself of the protection of
Canada under section 98 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act). This last decision has not been the subject of an
application for judicial review. On December 3, 2013, the Board denied the
application to reopen, which was presented more than 10 years after original decision,
because there was no breach of a principle of natural justice, hence this application
for judicial review.
[3]
The standard of correctness applies to the issue
of whether a breach of a principle of natural justice was established by the
applicant: Hillary v Canada (Citizenship and Immigration), 2011 FCA 51 at
paras 27 to 30. In this case, the applicant based his application to
reopen on the adverse effects of the original decision-maker’s erroneous legal
analysis of his exclusion. As a new fact, the applicant alleged that he suffered
from schizophrenia (a medical condition not diagnosed at the time), to the
extent that [translation] “this mental state could have had an impact on the assessment
of the applicant’s ‘credibility’ if that could
have been submitted before the RPD during his hearing”.
[4]
The applications to reopen refugee claims are
governed by section 62 of the Refugee Protection Division Rules, SOR/2012-256
(the Rules):
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62. (1) At any time
before the Refugee Appeal Division or the Federal Court has made a final
determination in respect of a claim for refugee protection that has been
decided or declared abandoned, the claimant or the Minister may make an
application to the Division to reopen the claim.
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62. (1) À tout
moment avant que la Section d’appel des réfugiés ou la Cour fédérale rende
une décision en dernier ressort à l’égard de la demande d’asile qui a fait
l’objet d’une décision ou dont le désistement a été prononcé, le demandeur
d’asile ou le ministre peut demander à la Section de rouvrir cette demande
d’asile.
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…
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[…]
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(6) The Division
must not allow the application unless it is established that there was a
failure to observe a principle of natural justice.
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(6) La Section ne
peut accueillir la demande que si un manquement à un principe de justice
naturelle est établi.
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(7) In deciding the
application, the Division must consider any relevant factors, including
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(7) Pour statuer
sur la demande, la Section prend en considération tout élément pertinent,
notamment :
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(a) whether the
application was made in a timely manner and the justification for any delay;
and
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a) la question de
savoir si la demande a été faite en temps opportun et, le cas échéant, la
justification du retard;
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(b) the reasons why
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b) les raisons pour
lesquelles :
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(i) a party who had
the right of appeal to the Refugee Appeal Division did not appeal, or
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(i) soit une partie
qui en avait le droit n’a pas interjeté appel auprès de la Section d’appel
des réfugiés,
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(ii) a party did
not make an application for leave to apply for judicial review or an
application for judicial review.
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(ii) soit une
partie n’a pas présenté une demande d’autorisation de présenter une demande
de contrôle judiciaire ou une demande de contrôle judiciaire.
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[5]
At the time of the original decision, the applications
to reopen were governed by section 55 of the Refugee Protection
Division Rules, SOR/2002-228, which read as follows:
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55. (1) A claimant
or the Minister may make an application to the Division to reopen a claim for
refugee protection that has been decided or abandoned.
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55. (1) Le
demandeur d’asile ou le ministre peut demander à la Section de rouvrir toute
demande d'asile qui a fait l’objet d’une décision ou d’un désistement.
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…
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[…]
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(4) The Division
must allow the application if it is established that there was a failure to
observe a principle of natural justice.
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(4) La Section
accueille la demande sur preuve du manquement à un principe de justice
naturelle.
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[6]
Under subsection 62(6) of the Rules and according
to recognized case law, an application to reopen will only be allowed if the
original decision-maker breached a principle of natural justice, i.e. in very limited
circumstances (Seyoboka v Canada (Minister of Citizenship and Immigration),
2010 FC 488 at para 24). Since December 2012, the new subsection 62(7)
of the Rules requires the Board to consider any relevant factors, including the
reasons why a party has not presented an application for leave and judicial
review.
[7]
In his application to reopen, the applicant complained
of a breach of a principle of natural justice flowing from a misapplication of
law by the original decision-maker. Indeed, the Supreme Court of Canada decided
in 2013 in Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40 (Ezokola),
that the threshold to pass to be complicit within the meaning of article 1F(a)
of the Convention is higher than the test previously applied under case law. Therefore,
the Board did not apply the correct test in its original decision, which
constitutes gross unfairness, to the extent that everything must now be started
over. The applicant also alleged that he suffered from paranoid schizophrenia
that was not diagnosed at the time of the original hearing and that the Board was
not able to consider this particular medical condition during the assessment of
his credibility.
[8]
No reviewable error was committed by the Board. Must
it be repeated that natural justice relates to the procedural protections and
do not cover the errors of law that could have been committed by the original
decision-maker. Moreover, the Board refused the application to reopen essentially
because the original decision was consistent with the state of the law applicable
at the time. Regardless, the Board did not commit any reviewable error of law
in noting that Ezokola has no retroactive effect. With respect to the
conclusion that there was no breach of a principle of natural justice, the
Board could also rely on the fact that the applicant was represented at the
time by experienced counsel and that a designated representative was assisting
the applicant. Further, the applicant’s learned counsel does not claim that
there could have been a breach of natural justice because the applicant was poorly
represented by his former counsel, neither does he claim that she should have
requested to postpone the hearing because the applicant was not in a mental
state to testify or understand what was going on. In addition, nothing
prevented the applicant from requesting the review of the 2003 decision if he
was of the opinion that the original decision-maker had misapplied the Convention
principles. The applicant did not have to wait for a judgment of the Supreme Court
in another matter to clarify the applicable law.
[9]
The applicant claims today that the schizophrenia
diagnosis could have had an impact on the assessment of his credibility. Very
well. However, a new fact is not in itself sufficient to justify an application
to reopen. A breach of a principle of natural justice must be shown. At the
risk of repeating myself, the original decision-maker was conscious of the mental
state of the applicant who, at the time, said that he suffered from [translation] “insomnia
and almost nightly nightmares, obsessive flashbacks, memory trouble and concentration”.
The applicant’s former counsel had also raised the particular mental condition
of her client and a designated representative had been appointed for him, to
the effect that the applicant did not demonstrate to the Court that a principle
of natural justice was breached in this case. In any event, it is not even certain
that, according to the new evidence on the record, the applicant indeed suffered
from schizophrenia in 2003.
[10]
This application for judicial review must be dismissed.
Counsel agree that no question of law of general importance was raised in this
matter.
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