Date: 20051202
Docket: IMM-2933-05
Citation: 2005 FC 1635
Ottawa, Ontario,
December 2, 2005
PRESENT: THE HONOURABLE
MR. JUSTICE HARRINGTON
BETWEEN:
ARGENTINA TORRES RAMOS and
ANGEL ESTABAN GARCIA CARBAJAL
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
HARRINGTON J.
[1]
Several
years ago, Argentina Torres Ramos and her husband, Angel Esteban Garcia
Carbajal, unsuccessfully applied for refugee status in Canada. Their claim was
based on an allegation of extortion by a renegade soldier in Honduras. The
father of Argentina Torres Ramos had refused to pay the soldier, and he was
killed. The same thing happened to her cousin.
[2]
The
applicants claimed refugee status in Montréal on August 11, 2000. The said they
crossed the border between Canada and the United States on July 29, 2000. They
did not report to an Immigration officer after having crossed the border. The
applicants stated they left Honduras on July 1, 2000 and
transited through Guatemala and Mexico before arriving in the United States.
They did not claim safe haven in any of these countries.
[3]
On
March 22, 2001, the Refugee Protection Division of the Immigration and Refugee
Board determined that the applicants were not Convention refugees. The
applicants then applied for the “post-determination refugee claimants in Canada
class” program but were transferred to the “Pre-Removal Risk Assessment” (PRRA)
program. This application was also dismissed. This negative decision of the
PRRA officer is now the subject of an application for judicial review before
this Court.
[4]
At first
sight, it is important to note that the PRRA officer’s decision seems perfectly
reasonable. He determined that the applicants did not adduce personalized
evidence to support their fears of persecution, and considering the
documentation concerning Honduras, they did not meet the definition of refugee,
because there were no risks if they returned to their country.
[5]
The
applicants submitted two arguments to try to convince this Court to allow their
application for judicial review: the first argument is based on the fact that
the applicants had no oral hearing, and the second argument is based on the
fact that their immigration counsellor omitted to submit a document fundamental
to their case to the PRRA officer.
[6]
The PRRA
officer did not question the applicants’ credibility under paragraph 113(b)
of the Immigration and Refugee Protection Act and section 167 of the Immigration
and Refugee Protection Regulations. The PRRA officer was justified
in proceeding without an oral hearing and relying solely on the documentary
evidence.
[7]
The key
document to which the applicants referred was a letter from the applicant’s
mother, Angel Esteban Garcia Carbajal, dated September 22, 2004. This letter
was most vague and only repeated the fact that the mother was worried they
would be killed if they came back to Honduras. The mother alleged that she
received a call two months ago for her son, but the person calling did not want
to identify himself. A little later, there was another similar call. The mother
underlined the fact that the same thing happened before the applicant’s cousin
was killed. In addition, a friend of this cousin stated he had been questioned
in a park by two men who wanted to know where the mother’s son was. Finally,
the mother stated [translation] “I prefer that you be far from me but
safe and sound”. This letter did not refer to an incident and did not clearly
and concretely specify that the applicants would be in danger if they were to
return to Honduras.
[8]
The
applicants received help from an immigration counsellor who was not a lawyer.
The applicants gave the letter in question to the counsellor, but he did not
file it. It is possible the counsellor considered that this letter was too
vague and self-serving, such that it would hinder a successful application. In
any event, no information was submitted to explain why this specific document
had not been filed in spite of the fact several other documents were filed.
[9]
This is a
case in which the strategy and judgement of an immigration counsellor are
called into question. Usually, the Court does not intervene in such a case. If
an applicant, personally or with the help of an agent, whether or not he is a
lawyer, does not invoke the best argument possible, it is unfortunate, but the
Court should not intervene. In Cove v. Canada (MCI) 2001 FCT 266, [2001]
F.C.J. No. 482 (QL), the situation of an immigration counsellor was
specifically mentioned at paragraph 5:
The applicant is fully entitled to
entrust her immigration problems to an immigration consultant rather than to a
member of the immigration bar. It may be that in doing so she saved some fees,
but perhaps not. She is also fully entitled to take her immigration
consultant’s advice on the steps to be taken in pursuing her claim. But the
applicant runs into difficulty when she suggests that she ought to receive a
dispensation from the rules because she was not represented by a lawyer and
received bad advice.
[10]
As
mentioned in Cove, above, there are however exceptions to this rule.
Pelletier J. cited Rothstein J. at paragraph 7:
In Drummond v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 477,
(1996), 112 F.T.R. 33,
Rothstein J. (as he then was) identified an exception to the principle
enunciated by Reed J.:
However,
in extraordinary cases, competency of counsel may give rise to a natural
justice issue. In such cases, the facts must be specific and clearly proven;
see: Sheikh v. Canada (1990), 71 D.L.R. (4th) 604
(F.C.A.); Huynh v. M.E.I. (1993), 21 Imm. L.R. (2d) 18
(F.C.T.D.); and Shirwa v. M.E.I. (1993), 23 Imm. L.R. (2d) 123
(F.C.T.D.).
[11]
This is
not a situation in which the counsellor, a lawyer or not, did not fulfill his
administrative obligations, such as reporting a change of address. As I stated
in Medawatte v. Canada (Minister for Public Safety and Emergency
Preparedness) 2005 FC 1374, [2005] F.C.J. No. 1672 (QL) at paragraph
10:
There is a great deal of jurisprudence in these matters to the effect that
a party must suffer the consequences of his or her own counsel. I subscribe to
that view. If a case has been poorly prepared; if relevant jurisprudence was
not brought to the attention of the Court in a civil case; if there was a bad
choice in witness selection, the consequences fall on that party. Is there a
difference, however, between malfeasance and non-feasance? In this case, it is
not a question of a lawyer doing something poorly. He did not do something he
should have done. In Andreoli v. Canada (Minister of Citizenship and
Immigration) 2004 FC 1111; [2004] F.C.J. No. 1349,
(QL), the applicants' refugee claim was ordered abandoned because the
interpreter in their lawyer's office failed to provide the authorities with a
change of address. I found in that case the board in deciding that the
applicants were the authors of their own misfortune was punishing them for the
carelessness of a third party. I found that to dismiss that application would
be to disregard the principles of natural justice. I said: . . .
This is not
a case where counsel poorly pleaded their case on the merits. Rather, it
involved a matter that had never been heard because of an administrative error
which occurred at counsel's office.
[12]
In
addition, one must not lose sight of the fact that, in spite of the result of
this application for judicial review, the applicants are entitled to make
another PRRA application under section 165 of the Immigration and Refugee
Protection Regulations.
|
165.
A person whose application for protection was rejected and who has
remained in Canada since being given notification under section 160 may make
another application. Written submissions, if any, must accompany the
application. For greater certainty, the application does not result in a stay
of the removal order.
|
165. La
personne dont la demande de protection a été rejetée et qui est demeurée au
Canada après la délivrance de l’avis visé à l’article 160 peut présenter une
autre demande de protection. Les observations écrites, le cas échéant,
doivent accompagner la demande. Il est entendu que la demande n’opère pas
sursis de la mesure de renvoi.
|
[13]
The
applicants’ application is solely based on the fact that this letter, which was
not filed, would have influenced the conclusion reached by the PRRA officer.
However, on the basis of the evidence adduced before this Court, and
considering this letter is vague and does not mention any concrete incident to
the effect that the applicants actually are at risk, this case should not be
submitted to another PRRA officer for rehearing. As mentioned above, the PRRA
officer’s decision is reasonable. He considered the circumstances in Honduras.
It is also important to underline the fact he was of the opinion that
considerable efforts were made to check on what the renegade soldier actually
did.
ORDER
1.
The
application for judicial review is dismissed.
2.
There is
no question to be certified in this case.
“Sean Harrington”
Certified
true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2933-05
STYLE OF CAUSE: ARGENTINA TORRES RAMOS AND
ANGEL ESTEBAN GARCIA CARBAJAL v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: November
24, 2005
REASONS FOR ORDER
AND ORDER BY: The
Honourable Mr. Justice Harrington
DATED: December
1, 2005
APPEARANCES:
Mr. Claude Brodeur FOR
THE PLAINTIFFS
Mr. Daniel Latulippe FOR
THE DEFENDANT
SOLICITORS OF RECORD:
Beauchesne Trempe & Partners FOR
THE PLAINTIFFS
Montréal, Quebec
John H. Sims, Q.C. FOR
THE DEFENDANT
Deputy Attorney General for Canada
Montréal, Quebec
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