Sathasivam v. Canada (Minister of Citizenship and Immigration), 2004 FC 438

Date: 20040324

Docket: IMM-6187-02

Citation: 2004 FC 438

Ottawa, Ontario, this 24^th day of March, 2004

Present:           The Honourable Justice James Russell                                

BETWEEN:

                                                SARVANANTHAN SATHASIVAM

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

[1]                This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated November 20, 2002, ("Decision") denying the motion of Sarvananthan Sathasivam ("Applicant") to re-open and re-instate his refugee claim.

BACKGROUND

[2]                The Applicant is a 45-year-old Hindu Tamil from Jaffna, Sri Lanka. He alleges persecution at the hands of the LTTE and the Sri Lankan army. He came to Canada on August 22, 1998, and claimed Convention refugee status at the border.

[3]                The Applicant duly completed and filed his Personal Information Form ("PIF") in time. While he was waiting for his claim to be heard, he married someone who was a Permanent Resident of Canada.

[4]                The Applicant was referred to a hearing under the expedited process in April, 1999. He did not succeed in his claim and so was referred to a full hearing. That hearing was delayed and the Applicant was advised by his counsel to withdraw his refugee claim and to file an inland application for permanent residence under the spousal category.

[5]                The Applicant claims to have psychiatric problems. Additionally, he says he is illiterate and did not have any knowledge of the refugee process or of the sponsorship regulations. He relied completely on his legal counsel and followed the direction given by his counsel. On August 27, 1999, his counsel withdrew the Applicant's refugee claim.

[6]                On February 22, 2000, the Applicant's inland application for spousal sponsorship was denied.

[7]                On March 23, 2000, a Notice of Motion to Reinstate was filed through another legal counsel in relation to the refugee claim. The CRDD denied that Motion on April 26, 2000.

[8]                An Application for judicial review was filed and the Court allowed that application on October 2, 2001 (Sathasivam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1481, 2001 FCT 1080). The basis for MacKay J.'s decision to allow the Applicant's judicial review application is summarized in the following words from his reasons:

17. In my opinion, the Board erred in law in relying upon its own knowledge of the applicant's former counsel to discredit, and to disbelieve his evidence that he had been misled by counsel's advice, without giving the applicant notice of its doubt about that evidence and an opportunity to address that doubt.

[9]                On October 7, 2002, the Board (formerly the CRDD) reconsidered the Applicant's motion in the presence of both Applicant's counsel and a Refugee Protection Officer and, on November 12, 2002, dismissed the application for re-instatement for a second time. The Board denied the motion because it was not persuaded there had been a breach of natural justice or that it would be in the interests of justice to re-open the claim.

[10]            This judicial review application arises from that Decision. The Applicant says that he still fears returning to his home country.

DECISION UNDER REVIEW

[11]            The Board noted the following in deciding that it would not be in the interests of justice to reinstate the Applicant's claim:

The claimant came to Canada as a Convention Refugee alleging a fear of persecution in Sri Lanka. Within a year of his arrival in Canada, the claimant decided to renounce his refugee claim only in order to expedite his landing in Canada. Despite alleging today a continued fear of persecution in Sri Lanka, the panel is not persuaded that the claimant's behaviour in Canada is consistent with the behaviour of someone seeking protection. The Refugee Protection system exists to protect refugees and is not a means of obtaining immigrant status in Canada. Thus, if the claimant came to Canada for the reasons alleged in his Personal Information Form (PIF), why would he renounce to them so quickly? The panel is not persuaded by claimant's explanation as having to wait a longer period for a full refugee claim hearing.

[12]            The Board stated the following in relation to the natural justice issue:

... He was duly assisted by counsel at all levels. ... Applicant, by his own testimony, said that previous counsel did not persuade or coerce him to abandon his refugee claim; rather this was presented to him as an option. ...

...

In the panel's mind, there is no element of natural justice that has not been respected and that would lead to the reinstatement of this claim.

RELEVANT LEGISLATION

[13]            Rule 53(3) of the Refugee Protection Division Rules SOR/2002-228, under the Immigration and Refugee Protection Act 2001, c. 27 indicates as follows:

ISSUES

[14]            The Applicant raises the following issues:

Did the Board fail to appreciate that the Applicant suffered a breach of natural justice in this matter?

Did the Board, in breach of the interests of justice, fail to allow this application?

ANALYSIS

What is the applicable standard of review to apply to the Decision of the Board?

[15]            In my opinion, the appropriate standard of review in this case is reasonableness simpliciter as indicated by Kelen J. in Gulishvili v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1200:

[9]          The case at bar turns on a question of mixed fact and law - did the CRDD err in deciding that the facts of the applicant's case did not justify reinstatement of her Convention refugee application? The standard of review in such matters is that of reasonableness simpliciter, or in plain English, whether the CRDD was "clearly wrong"as per Evans J.A. in Cihal v. Canada (Minister of Citizenship and Immigration) (2000), 257 N.R. 62 (F.C.A.).

Did the Refugee Board fail to appreciate that the Applicant suffered a breach of natural justice in this matter?

[16]            The Applicant says his former legal counsel gave him such bad advice that there was an error and/or negligence on the part of counsel. These are serious allegations and should not be made lightly. The Applicant refers to Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (T.D.) and Mathon v. Canada (Minister of Employment and Immigration) (1988), 28 F.T.R. 217 as examples of legal counsel committing such serious errors that the Court felt there was a breach of natural justice.

[17]            In Mathon, supra, counsel failed to file an application for redetermination on time, despite the fact that the claimant in that case had signed the document on time. Pinard J. concluded at p. 229 that "as the exclusion was solely the result of a lawyer's error and/or negligence, a litigant who has acted with care should not be required to bear the consequences of such an error or negligence."

[18]            In Shirwa, supra, Denault J. confronted a situation involving an even more deficient counsel. The claimant in that case was misled into believing that his counsel was a lawyer when he was not. The counsel was found negligent because his representation of the claimant before the board consisted solely of entering the PIF into evidence. His conduct during the hearing did not meet the standard of reasonable care. Denault J. also noted in that case that the failure to provide written submissions was also prejudicial to the claimant. Counsel for the claimant in Shirwa, supra, failed to respond to any of the concerns expressly identified by the Refugee Hearing Officer. Also in Shirwa, supra, "other relief" sought by the claimant (i.e. a complaint to the Law Society) was limited because the Law Society could not bring any proceedings against the claimant's counsel who was not a lawyer. The cumulative effect of all of these considerations was that the conduct of the applicant's counsel was considered highly prejudicial to the claimant. Denault J. found that this prejudice amounted to a denial of natural justice because the claimant was denied a full and fair hearing, and the decision of the board in Shirwa, supra, was reviewable on this basis.

[19]            In the previous decision of this Court concerning the Applicant, I note that MacKay J. indicated as follows:

17. In my opinion, the Board erred in law in relying upon its own knowledge of the applicant's former counsel to discredit, and to disbelieve his evidence that he had been misled by counsel's advice, without giving the applicant notice of its doubt about that evidence and an opportunity to address that doubt.

18. That was the key factor, though not the only factor, on which the decision-maker relied in determining that there were not sufficient reasons why the claim should be reinstated and why it was not in the interests of justice to have the claim reinstated. In my view, that error is sufficient to warrant an order setting aside the decision to deny the application to reinstate the refugee claim. It may well be that reconsideration of this matter would produce no different result. But where there has been unfairness in the process of the decision-maker in relation to determining the key factor in his decision, the Court has an obligation to intervene.

[20]            In the present application, I find that there has not been any such unfairness on the part of the Board. The Respondent notes that the Applicant testified at the hearing before the Board that his previous counsel did not persuade or coerce him to abandon his refugee claim. The Applicant also signed the withdrawal notice which indicated that he understood the nature and the consequences of his withdrawal and that he was withdrawing without any influence. On the basis of this evidence, it was reasonably open to the Board to find that "there is no element of natural justice that has not been respected and that would lead to the reinstatement of this claim."

[21]            The Board clearly relied on the Applicant's own testimony that his previous counsel did not persuade or coerce him to abandon his refugee claim. The Applicant does not deny that this was, indeed, his testimony. He was not coerced to withdraw his refugee claim and he did so for reasons that made sense to him at the time. Because of subsequent events, he now wishes that he had not withdrawn his refugee claim, but this does not place him upon the same footing as the claimants in Shirwa, supra, and Mathan, supra.

[22]            The Board clearly considered the Applicant's allegations about his former counsel's advice, but ultimately determined that this did not amount to a breach of natural justice. This Court has established that counsel's incompetence may provide grounds for review on the basis of a breach of natural justice. But, there must be no fault on the part of the claimant.

[23]            Rothstein J. (as he then was) in Huynh v. Canada (Minister of Employment and Immigration) (1993), 21 Imm L.R. (2d) 18 (F.C.T.D.) made the following cautionary remarks:

23. ... It seems to me that in many cases unsuccessful litigants may wish to blame the result on the inadequacy of counsel. Where there is merit to such a claim, a client may be able to proceed against counsel and secure recovery However, in my opinion, the failure of counsel, freely chosen by a client, cannot, in any but the most extraordinary case, result in an overturning of a decision on appeal or judicial review.

[24]            Pelletier J. in Nunez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 555 (F.C.T.D.), made it clear that the Court should not accept allegations of serious professional misconduct against a member of the bar and an officer of the Court without having the member's explanation for the conduct in question, or without evidence that the matter has been referred to the governing body for investigation. In the case at bar, there is no evidence before me that the Applicant has filed any complaint against his former counsel.

[25]            The only evidence before the Court is that the Applicant made a decision to abandon his refugee claim based upon advice from his former counsel that the spousal sponsorship application was automatic and he did not need to pursue the refugee claim. Applicant's present counsel argues that it is impractical to expect someone in the position of the Applicant to go further than the Applicant has in making some kind of complaint against his former counsel, and refers me to Shirwa, supra, and the decision in Saad Taher v. Canada (Minister of Citizenship and Immigration) 2002 FCT 991 to support his position that a breach of natural justice occurred in the case at bar that the Board failed to recognize.

[26]            Shirwa, supra, makes it clear that "the incompetence of counsel in the context of a refugee hearing provides grounds for review of the tribunal's decision on the basis of a breach of natural justice," (para. 11) and that "in a situation where through no fault of the applicant the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred (Mathon)."

[27]            In my opinion, the central issue before me on this ground of complaint is what evidence of counsel's incompetence or misconduct is required before grounds for review can be said to exist. In this case, no refugee hearing took place. The Applicant says he withdrew his refugee application because his former counsel advised him that the spousal sponsorship was automatic so that he didn't need to pursue the request for refugee status and he could withdraw it: "On the advice of my lawyer, I withdrew my case." (Tribunal Record, p. 228.)

[28]            When this matter was argued before the Board, the Applicant was represented by Mr. Gordon Wiseman. As regards the conduct of the Applicant's former counsel and his advice on material issues, Mr. Wiseman spoke, inter alia, as follows:

In fairness to [former counsel], who's not here, he may well not have been aware, as my friend points out, that, ... that, A, that Claimant may have had this medical problem, and B, he may not have been aware that he need not have withdrawn the .... the claim, and could have, at the same time, proceeded with the sponsorship. (Tribunal Record, p. 237)

...

... we're certainly not suggesting that [former counsel] gave misleading advice. (Tribunal Record, p. 237)

...

He was married and he brought this to his lawyer's attention, but he went through the fast track and... and then... and then we heard that there was going to be some delay after the fast-track, in terms of scheduling the Hearing, and it was at this point that, it appears, his lawyer did give him this... I believe the word was used as an option, you know, that he can withdraw the claim, and proceed in the... under the wife's sponsorship. And the understanding, clearly, in Mr. Sathasivam's mind was that this would be a faster or more expedient way of doing it. Otherwise, clearly, there's no advantage or reason to withdraw the claim. I would say that that only stands to... to common sense, as to why, in his mind, he would go along with that.

By some of the questions, much was made about whether he could withdraw or should withdraw or may withdraw, and ultimately he said the lawyer told him he can withdraw. Again, I would submit that it's, in such an instance where he has a lawyer and the lawyer is suggesting... clearly, there's a suggestion made and that's got to come from the lawyer.

So... so in such a case, where a relatively unsophisticated client is relying on his lawyer's advise, as he clearly did in this case, and as it happens, for whatever reason, and not, as I've said before, because the advice was misleading... that's not our position... but, as I say, because there was a condition perhaps unknown to [former counsel], and the advice turned out not to be good, then... then I would... I would submit that at least the benefit of any such doubt should go to the Claimant under such circumstances.

[29]            In view of these submissions by Mr. Wiseman to the Board, it is difficult to fault the Board's Decision or to see how the conduct of his former counsel led to a breach of natural justice.

[30]            In Taher, supra, at para. 2 the situation as described by Pinard J. was quite different:

There was clear and uncontradicted evidence before the Board showing that the applicant, who did not speak or understand any of our Canadian official languages, had retained an experienced attorney within a reasonable time. It is through the unique fault of the counsel that the applicant's PIF was not filed and his address, phone number and name of counsel were not provided. The applicant was therefore not negligent.

[31]            In the case at bar, the Applicant was not negligent. He reasonably relied upon advice from his counsel. But there was no "unique fault of the counsel" that resulted in his refugee claim not being heard. The Tribunal Record indicates that the Applicant did not take the position before the Board that his former counsel had given him misleading advice. The simple fact is that a decision was made that did not turn out as expected. It was a decision that the Applicant accepted because he expected his in-land spousal sponsorship claim to be successful. The fact that it was not and that, as a result, his refugee claim has not been heard does not mean that there has been a breach of natural justice. Hence, the Board's finding on this issue was reasonably open to it and should not be disturbed by this Court.

Did the Board, in breach of the interests of justice, fail to allow this application?

[32]            The Applicant admits that his overall objective was to become a permanent resident of Canada and that there was nothing inherently wrong in his attempting to short circuit the process to achieve this goal. In this regard, the Applicant suggests that his actions were "in the interest of administrative process economy and in the interest of financial economy of the Applicant." However, the Applicant's desire to be landed in Canada, one way or the other, does not overcome the Board's concern that the "system exists to protect refugees and is not a means of obtaining immigrant status in Canada." An outcome that is unfavourable to the Applicant does not imply that the interests of justice have not been met or that a reviewable error has occurred.

[33]            The Applicant has failed to establish that the Board ignored relevant evidence related to the interests of justice or that the Board erred by failing to give "due significance" to the Applicant's marriage to a permanent resident. In my opinion, even if the Court might have reached a different determination from the one reached by the Board, there is nothing unreasonable about the following conclusion by the Board:

Despite alleging today a continued fear of persecution in Sri Lanka, the panel is not persuaded that the claimant's behaviour in Canada is consistent with someone seeking protection. The Refugee Protection system exists to protect refugees and is not a means of obtaining immigrant status in Canada. Thus, if the claimant came to Canada for the reasons alleged in his Personal Information Form (PIF), why would he renounce them so quickly? The panel is not persuaded by claimant's explanation as having to wait a longer period for a full refugee claim hearing. In the panel's mind, it would not be in the interest of justice to reopen the present claim.

[34]            I therefore find that the Board did not err in breach of the interests of justice in failing to allow the application.

[35]            Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.

                                     FEDERAL COURT

             Names of Counsel and Solicitors of Record

DOCKET:                  IMM-6187-02

STYLE OF CAUSE: SARVANANTHAN SATHASIVAM

                                                                                              Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                          Respondent

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   TUESDAY JANUARY 6, 2004

REASONS FOR ORDER

AND ORDER BY:    The Honourable Justice Russell

DATED:                     March 24, 2004            

APPEARANCES BY:                                     Mr.Kumar Sriskanda

For the Applicant

Ms. Rhonda Marquis

For the Respondent

SOLICITORS OF RECORD: Kumar Sriskanda

Toronto, ON

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

                               Date: 20040324

Docket: IMM-6187-02

BETWEEN:

SARVANANTHAN SATHASIVAM

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                     Respondent

REASONS FOR ORDER