Date: 20120524
Docket: IMM-6987-11
Citation: 2012 FC 596
Ottawa, Ontario, this 24th
day of May 2012
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Janos BALAZS, Katalin FARKAS,
Vanessza BALAZS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of M. Pettinella, member
of the Refugee Protection Division of the Immigration and Refugee Board (the
“Board”), pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”). The Board dismissed the applicants’ claim for refugee protection,
concluding they were not Convention refugees or persons in need of protection
under sections 96 and 97 of the Act.
[2]
Janos
Balazs (the “applicant”), his common-law spouse Katalin Farkas and their minor
daughter Vanessza Balazs (together “the applicants”) are Roma citizens of Hungary. They claim a fear of
persecution due to their ethnicity, Vanessza’s claim being based on her
parents’. The applicants allege they were verbally abused by skinheads,
Vanessza was harassed and their son was beaten.
[3]
On
June 18, 2007, the applicant claims to have been physically assaulted and
threatened by six skinheads on his way home from work. Consequently, he alleges
that he was hospitalized for three weeks, suffering from fractured ribs,
missing teeth and having had his face cut. Three to four months after being
released from the hospital, the applicant alleges that he was threatened, being
called a gypsy, such threats supposedly re-occurring a couple of times in 2008.
Whereas his spouse was also called a “dirty gypsy” and a “gypsy whore” by
skinheads on the bus.
[4]
As a
result, the applicants left Hungary for Canada on September 16, 2009 and filed for refugee
protection the same day. Their claim was heard by the Board on September 12,
2011. On September 15, 2011, the Board rendered its negative decision, denying
the applicants’ refugee claim.
[5]
The
applicants raise a number of issues, the disposition of two of which I find to
be determinative of this application for judicial review.
[6]
First,
I intend to deal with the applicants’ argument that they were denied a fair
hearing due to the incompetence of their legal counsel at the time, contrary to
the principles of natural justice. It is trite law that the applicable standard
of review to such an issue is correctness.
[7]
The
applicants submit that they were denied a fair hearing due to the incompetence
of their legal counsel at the time of the hearing, her breath smelling like
alcohol on a previous occasion and having only met her twice before. At the
hearing before me, counsel for the applicants pointed to the “poor
representations” of their legal counsel in the transcript of the hearing before
the Board.
[8]
Incompetence
of counsel has been recognized as a breach of natural justice where there is
evidence to support a finding of incompetence (see Sheikh. v Canada (Minister of Employment
and Immigration),
[1990] Imm. L.R. (2d) 81 [Sheikh]; Shirwa v. Canada (Minister of Employment
and Immigration),
[1994] 2 F.C. 51 (T.D.) [Shirwa]; Siloch v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 10 (F.C.A.) (QL), 151 N.R.
76 [Siloch]; Mathon v. Canada (Minister of Employment and Immigration) (1988), 28 F.T.R. 217 [Mathon]).
[9]
At
the end of their memorandum, the applicants reassert that they were denied a
fair hearing, relying on Siloch, above and Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817). However, the
applicants fail to explain why the hearing was conducted unfairly.
[10]
Inversely,
the respondent asserts that although applicants’ counsel may have been
incompetent, the applicants have not provided evidence of problems which may
have arisen as a result; or how their claim was prejudiced, failing to
establish that their right to a fair hearing was compromised. Thus, there was
no breach of natural justice.
[11]
The
respondent is correct: the applicants have failed to prove how their legal counsel’s
behavior at the time of the hearing prejudiced them. While the circumstances of
this case are very different than the cases relied on by the applicants, these
cases do establish that the incompetence of counsel at the hearing can result
in a denial of a fair hearing and provides grounds for judicial review on the
basis of a breach of natural justice (Shirwa, above at para 11). Thus,
where by no fault of the applicant, counsel’s misconduct results in the
applicant being denied the opportunity to a hearing, a reviewable breach occurs
(Shirwa, above at para 11; Mathon, above). However, the
applicants were not denied a hearing: their refugee claim proceeded. Thus, in
such a case, the Board’s decision can only be reviewed where extraordinary
circumstances are proven, such that “there is sufficient evidence to establish
the ‘exact dimensions of the problem’” (Shirwa, above at para 12).
Thereby, where the incompetence or negligence of counsel is sufficiently
specific and supported by the evidence, such behavior is inherently prejudicial
to the applicants, resulting in a denial of a fair hearing (Shirwa,
above at para 12). However, the applicants have not adduced any such evidence.
[12]
The
applicants have not explained how their counsel’s behavior prejudiced them,
besides their refugee claim being denied. Counsel showed up for the hearing,
made representations, questioned the applicants and appears to have followed
their instructions (compare with Mathon, above). Thus, counsel seems to
have exercised the standard of care required, bringing reasonable care, skill
and knowledge to the performance of her legal services (Mathon, above,
citing Central Trust Company v. Rafuse, [1986] 2 S.C.R. 147). Absent any
evidence of misconduct or prejudice, this Court cannot conclude that the
applicants were denied a fair hearing.
[13]
Rather,
counsel was chosen by the applicants and they had sufficient time before the
hearing to find a new lawyer if they had concerns. As stated by Justice
Marshall Rothstein in Huynh v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 11 at
para 16 [Huynh]:
.
. . That the applicant’s story was not told or did not come out clearly may
have been a fault of counsel or it may have been that the applicant did not
properly brief counsel. As I understand the circumstances, counsel was freely
chosen by the applicant. If counsel did not adequately represent his client,
that is a matter between client and counsel.
[14]
Since
the applicants have not proven that they were denied a fair trial, this Court
cannot intervene: “the failure of counsel, freely chosen by a client, cannot,
in any but the most extraordinary case, result in an overturning of a decision”
(Huynh, above at para 23). Having filed a complaint with the Law Society
of Upper Canada, the applicants are aware that they have other forms of relief
against their legal counsel if she was truly incompetent.
[15]
Secondly,
the applicants argue that the Board erred in fact, basing its decision on
erroneous findings made in a perverse or capricious manner or without regard to
the evidence before it. The applicable standard of review to this issue is
reasonableness (see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]).
Thus, this Court must determine whether the Board’s findings are justified,
transparent and intelligible, falling within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above at para 47).
[16]
The
applicants specifically take issue with the following conclusions made by the
Board: (i) the assault never occurred; (ii) the applicant never
reported the incident to the police; and (iii) the applicant never spent
time in the hospital. In coming to these conclusions, the Board ignored the
evidence before it, specifically the medical reports, the corroborating
evidence of the children and the documentary evidence, thereby committing a
reviewable error.
[17]
Furthermore,
the applicants take issue with the Board’s credibility finding, believing the
Board erred by failing to provide reasons. Rather, the Board had to consider
the totality of the evidence and explain why it did not consider the applicants
credible, which it failed to do in the applicants’ opinion.
[18]
At
the outset, it is important to correct the applicants: the Board never stated
that the applicant’s attack was never reported nor that he was never
hospitalized. Rather, the Board concluded that the applicant did not report the
threats he supposedly received and that he was hospitalized, but not for three
weeks, contrary to his allegations.
[19]
It
should be reminded that the determination of the applicant’s credibility is
completely within the Board’s jurisdiction, for “it has a well-established
expertise in the determination of questions of fact, particularly in the
evaluation of credibility and the subjective fear of persecution” of applicants
(Mohacsi v. Canada (Minister of Citizenship and Immigration), [2003] 4
F.C. 771 (T.D.) at para 18 [Mohacsi]).
[20]
The
Board’s findings and decision are reasonable, being considered as a whole (Ogiriki
v. Minister of Citizenship and Immigration, 2006 FC 342 at para 13 [Ogiriki]).
Even if one of the several reasons provided by the Board was wrong, other facts
remain to support its decision (Ogiriki, above at para 14). The Board
clearly explained why it disbelieved the applicant’s story: there were several
inconsistent versions of the applicant’s attack and the latter failed to
provide a satisfactory explanation for these inconsistencies, these
explanations being explicitly addressed by the Board in its reasons (compare
with Mohacsi, above at para 28).
[21]
Furthermore,
contrary to the applicants’ allegations, the Board did not ignore the evidence
before it. It specifically addressed the police and medical reports, the
applicants’ testimony and the documentary evidence (compare with Ameir v.
Minister of Citizenship and Immigration, 2005 FC 876 at paragraphs 27 and
31). Thereby, the Board did not fail to consider the evidence before it, having
no obligation to mention every piece of evidence, but rather considered the
totality of the evidence and justified its finding of a lack of credibility in
“clear and unmistakable terms” (Hilo v. Canada (Minister of Employment and
Immigration), [1991] F.C.J. No. 228 (F.C.A.) (QL), 130 N.R. 236; Mohacsi,
above at para 19; Gondi v. Minister of Citizenship and Immigration, 2006
FC 433 at para 16). A general finding of a lack of credibility on the part of
the applicant may extend to all evidence emanating from his testimony (Sheikh,
above at para 8). Thus, the Board’s finding that the applicants were not
credible amounted to a finding of a lack of credible evidence on which to base
their refugee claim (Grinevich v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 444 (T.D.) (QL) at para 6). This
finding, further to my above disposition of the natural justice issue, is
sufficient to dispose of the present application for judicial review without
the necessity of dealing with any other issues raised by the applicants.
[22]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[23]
Counsel
for the applicants has submitted the following questions for certification:
1.
Are criminal acts of
violence, directed at person(s), based on race or ethnicity, always
“persecution”, subject to a state protection analysis?
2.
Or, put another way,
can criminal acts of violence, based on race or ethnicity ever constitute mere
“discrimination”?
[24]
Considering
the specific reasons provided above in support of the dismissal of this
application for judicial review, the proposed questions are clearly not
determinative of the application for judicial review and, therefore, cannot be
certified (see Liyanagamage v. Canada (Secretary of State) (1993), 71
F.T.R. 67).
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada determining that the applicants were not Convention
refugees or persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.
“Yvon
Pinard”
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