Docket:
IMM-12719-12
Citation: 2014 FC 288
Ottawa, Ontario, March 25, 2014
PRESENT: The Honourable Mr. Justice Boivin
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BETWEEN:
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NANCY JAZUVIRUA TJAVERUA
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) of a decision made by the Refugee Protection Division
of the Immigration and Refugee Board (the Board) on November 16, 2012, wherein
the Board rejected the applicant’s application for refugee protection.
Factual
background
[2]
Nancy Jazuvirua Tjaverua (the applicant) is a
citizen of Namibia. She arrived in Canada on December 21, 2010, and claimed
protection at the port of entry. In her application, the applicant claims that
she feared her uncle and that she was scared for her life in Namibia.
[3]
She alleges that her parents died in a car
accident in 2002. In her father’s will, it was provided that the applicant’s
uncle would take care of the family’s property but that he would hand it over
to the applicant when she reached the age of twenty-two (22). On September 20,
2010, the applicant asked her uncle to hand over the property to her, but he
refused and assaulted her.
[4]
The applicant states that she complained to the
family elders who asked her uncle to comply with her father’s will. The
applicant’s uncle refused once again. On November 25, 2010, five (5) men
entered in the applicant’s room, assaulted her and threatened to come back.
[5]
The applicant considered complaining to the
police, but decided against it because she was convinced that the police would
not intervene as her situation would have been perceived as a purely family
matter.
[6]
After her arrival in Canada, the applicant
entered into a relationship with David Kataturua, another refugee claimant from
Namibia. The applicant claims that Mr. Kataturua was very abusive towards her
and that they had several violent altercations that led to criminal charges
being filed against the applicant and Mr. Kataturua.
[7]
On July 6, 2012, the applicant gave birth to a
baby girl, but the infant, born with brain damage, died on July 13, 2012.
[8]
The applicant called Peter Obula Kalu, who was
her counsel during the proceedings before the Board, to inform him of the death
of her newborn child and the violent altercations with Mr. Kataturua.
Mr. Kalu said he was sorry for the events, but that they had nothing to do with
her refugee claim and that he would not mention them in his submissions before
the Board.
[9]
The applicant’s claim was heard on October 24,
2012. At the hearing, Mr. Kalu questioned the applicant for five (5) minutes,
and made submissions during another five (5) minutes. The applicant claims
that, despite the fact that she felt the hearing had “gone terribly wrong”, Mr.
Kalu told her “she had a 50/50” of succeeding in her claim (Applicant’s
Memorandum at para 15).
[10]
The applicant’s claim was dismissed by the Board
on November 16, 2012.
Impugned
decision
[11]
In its decision, the Board concluded that the
applicant failed to establish that she is a person in need of protection based
on a lack of credibility, on the fact that property rights are not a Convention
ground for refugee protection and on her failure to seek the protection of the
state.
Issues
[12]
This application raises the following issues:
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Was the applicant denied a fair hearing due to
the incompetence of her lawyer?
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Is the Board’s finding on state protection
reasonable?
Standard of
review
[13]
The parties submit, and the Court agrees, that the
correctness standard is applicable in the case at bar. It is now well
established that issues of procedural fairness and natural justice, like
denials of fair hearings due to incompetent counsel, are reviewable as
questions of law. No deference is due by this Court (Canadian Union of
Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at
paras 100, 102, 103, [2003] 1 S.C.R. 539; Dunsmuir v New Brunswick, 2008
SCC 9 at paras 55, 60, 79, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339).
[14]
The second issue is reviewable under the reasonableness
standard. The Board’s analysis of state protection is a question of mixed fact
and law and attracts the reasonableness standard (Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 FCR 636).
Analysis
[15]
The allegation of counsel’s incompetence is a
serious allegation and the threshold for demonstrating incompetence is a high
one. Justice Martineau observed the following in Parast v Canada (Minister of Citizenship and Immigration), 2006 FC 660 at para 11, [2006] FCJ No
844 (QL):
11. … According
to the case law, evidence of counsel’s incompetence must be so clear and
unequivocal and the circumstances so deplorable that the resulting injustice
caused to the claimant is blatantly obvious …
(Citations
omitted.)
[16]
The Supreme Court of Canada, in R v GDB, 2000
SCC 22 at para 26, [2000] 1 S.C.R. 520, stated that in order to successfully
challenge a decision based on incompetent counsel, “it must be established,
first, that counsel’s acts or omissions constituted incompetence and second,
that a miscarriage of justice resulted”. This principle has been consistently
followed by this Court in immigration proceedings dealing with counsel’s
incompetence (Memari v Canada (Minister of Citizenship and Immigration),
2010 FC 1196 at para 34, [2012]2 FCR 350 [Memari]). As stated by Chief
Justice Crampton of this Court in Memari, above at para 36, since such a
recourse is extraordinary:
[36] …the performance
component must be exceptional and the miscarriage of justice component must be
manifested in procedural unfairness, the reliability of the trial result having
been compromised, or another readily apparent form.
[17]
Concerning the “performance” component, the
applicant’s main complaint regarding Mr. Kalu’s conduct was his failure
to identify that her relationship with Mr. Kataturua gave rise to a
gender-based ground for refugee protection.
[18]
It is worthy of note that the relationship with
Mr. Kataturua started in Canada and not in Namibia. Nothing in the evidence
suggests that the applicant knew Mr. Kataturua prior to her arrival in Canada or that he could pursue her if they were to return to Namibia. As such, the events involving
Mr. Kataturua in Canada do not give rise to any new need of protection in Namibia and cannot constitute a sur place claim. The applicant therefore failed to
establish that Mr. Kalu’s decision not to mention these events or adduce
evidence appear to be a professional mistake. Mr. Kalu’s other main
alleged shortcoming was his failure to prepare a better narrative that might
have helped the applicant appear to be more credible before the Board. Again, there
is no evidence that Mr. Kalu’s strategic choices, unsatisfying performance at
the hearing or limited interaction with the applicant, amounted to the
exceptional circumstances required by the jurisprudence of this Court.
[19]
Even if the “performance” component were to be
satisfied, the applicant has to demonstrate how her counsel’s conduct had any
material impact on the result of her claim. It remains unclear what the
applicant told her lawyer about Mr. Kataturua or whether she indicated that she
feared returning to Namibia because of him. As mentioned above, there is no
evidence brought forward by the applicant that Mr. Kataturua – whom the
applicant met in Canada and not in Namibia – would pursue her and harm her in Namibia, thus establishing a well-founded fear of persecution in Namibia.
[20]
Furthermore, the applicant may have been
dissatisfied with the performance of the lawyer she appointed, - she indeed
filed a complaint to the Law Society of Upper Canada (LSUC) against Mr. Kalu’s
professional conduct - but the record does not support her claim that the
Board’s credibility findings would have been any different had Mr. Kalu
allegedly been more diligent. The Board’s main credibility concern lied with
the applicant’s omission to mention her uncle and the story of her challenged
inheritance during her interview at the point of entry, which happens to be the
very foundation of her claim. The applicant does not point to a single error
made by her counsel that explained this omission or what led the Board to misconstrue
the applicant’s narrative.
[21]
The Court also notes that the applicant did not
approach any Namibian authority because she did not think her family matter
would have been taken seriously. The Board determined that, given the assaults
and threats she described in her narrative, it was a matter that fell within
the purview of the Namibian police (Tribunal record, p. 52-53 and 64-65). The
applicant did not challenge this finding of the Board before the Court. While
it is true that, in certain circumstances, it may not be reasonable to expect a
claimant to seek protection, nothing in the case at bar suggests that it was
the case for the applicant. As the respondent submitted, the issue of state
protection is determinative and constitutes sufficient grounds to dismiss the
application. There is therefore no reasonable probability that the outcome
would have been different.
[22]
Despite able arguments by counsel for the
applicant, the Court remains unconvinced that the applicant has established
that Mr. Kalu’s conduct amounted to extraordinary incompetence or that his
conduct resulted into a miscarriage of justice.
[23]
The Court has sympathy for the applicant’s story
and the personal difficulties she encountered since she arrived in Canada. Regrettably, however, sympathy alone does not allow this Court to quash the Board’s
decision.
[24]
For these reasons, the application will be
dismissed.
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