Docket: IMM-97-16
Citation:
2017 FC 79
Toronto, Ontario, January 23, 2017
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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SANDORNE
BOTRAGYI, ATTILA HRANEK, VERONIKA RAMONA HORVATH,
SANDOR ERIK
BOTRAGYI
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
In 2011, Ms Sandorne Botragyi and other members
of her family sought refugee protection in Canada based on their fear of
persecution in Hungary. A panel of the Immigration and Refugee Board denied
their claims. They sought and obtained leave to seek judicial review of that
decision, but the Court dismissed their application.
[2]
The applicants then sought a pre-removal risk
assessment (PRRA) and submitted to the PRRA officer some additional information
that had not been part of their refugee claims. In particular, the applicants
informed the officer that they had not been competently represented by counsel
during the prosecution of their claims.
[3]
The officer refused to consider much of the documentation
the applicants provided. Specifically, the officer declined to accept
information relating to the conduct of their former counsel because, in his
view, any issue of alleged incompetence was remedied when the applicants were
allowed to seek judicial review of the Board’s decision. Given that they lost
on their application, that issue, according to the officer, was no longer
relevant.
[4]
The applicants argue that the officer
unreasonably failed to consider their new evidence. In particular, they maintain
that the officer failed to appreciate the fact that they had no choice but to
present what appeared to be new evidence to the officer because their former
counsel had failed, out of incompetence, to present to the Board the evidence that
was then available. They ask me to quash the officer’s decision and order
another officer to reconsider their PRRA.
[5]
I agree with the applicants that the officer
failed to appreciate that the allegations of incompetence not only affected the
hearing before the Board, but also had to be taken into account in deciding
whether the evidence before the officer could have reasonably been submitted
previously. In the circumstances, I will allow the application for judicial
review.
[6]
While the applicants presented a number of
grounds for challenging the officer’s decision, I will confine my reasons to
the alleged incompetence of counsel.
II.
The PRRA Officer’s Decision
[7]
The applicants contended that their former
counsel gave them only 20 minutes to complete their written narratives and did
not give them any guidance about what to include. Counsel then arranged for the
narratives to be translated. The translations were poorly done, and the
applicants had no chance to review them before the hearing of their refugee
claim. Counsel met with them only once before the hearing, and did not give
them any advice about what kinds of evidence they should gather. The same
counsel represented the applicants at the hearing, on their application for
leave, and on their judicial review.
[8]
Based on these circumstances, the officer
concluded that any issue about the competence of counsel was resolved by the
fact that the applicants obtained leave to seek judicial review, and then
failed in their application.
III.
Did the Officer Err?
[9]
In my view, yes.
[10]
In deciding whether to admit new evidence, the
officer first had to consider whether that evidence was reasonably available to
the applicants at the time of their hearing before the Board. The officer then
had to consider whether, in the circumstances, the evidence could reasonably
have been presented to the Board (Immigration and Refugee Protection Act,
SC 2001, c 27, s 113(a) – See Annex).
[11]
Here, at least some of the evidence the
applicants provided the officer was reasonably available at the time of their
hearing before the Board. However, the PRRA officer did not go on to consider
whether that evidence could reasonably have been presented to the Board under
the circumstances. As I see it, the officer did not appreciate the possibility
that the applicants had been denied a reasonable opportunity to put their
evidence before the Board due to the conduct of their counsel at the time.
[12]
This is not to say that the officer should have
admitted the new evidence. Rather, the officer should have considered the full
circumstances before concluding that the evidence was not admissible. It was an
error of law not to have done so.
IV.
Conclusion and Disposition
[13]
The PRRA officer erred by excluding evidence
tendered by the applicants before considering whether, in the circumstances,
they had been denied an opportunity to present their evidence to the Board. On
that basis, I will allow this application for judicial review. Neither party
proposed a question of general importance for me to certify, and none is
stated.
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