Date:
20120928
Docket: IMM-8005-11
Citation: 2012 FC 1144
Ottawa, Ontario, September 28, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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ARIF ZAHERALI
HASSANA ALI DHALLA
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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]
The applicant is a citizen of Tanzania. He is educated and English-speaking, and yet, if he is believed, he was taken in by an
unscrupulous consultant and negligently represented by a lawyer whom he did not
retain. He takes no responsibility for his current predicament but blames the
consultant and the lawyer.
[2]
This much is without doubt – the applicant’s
refugee claim was declared by the Refugee Protection Division of the
Immigration and Refugee Board to have been abandoned and the applicant is
seeking to have that decision set aside. Most everything else in this file
raises doubt because the evidence is contradictory, confusing, and suspect.
That evidence and my assessment of it is set out in the following section.
Background
The Applicant
and the Consultant
[3]
The applicant filed an affidavit in this
application which, in addition to the exhibits attached and the certified
tribunal record (CTR), reveals the following history.
[4]
The applicant says that “when I first made my
refugee claim, I retained a counsel, Ademola Oladapo (“Oladapo”), to represent
me” and was told that he was authorized to do so and paid him “about $3,000 or
$4,000” for his services, but has no receipts.
[5]
The form entitled “CLAIM FOR REFUGEE PROTECTION
IN CANADA” in the CTR contains a Third Party Declaration which reads as
follows:
Did someone assist
you in filing out this form? If yes, this person needs to sign the following
declaration.
I (print full name
clearly) Ademola Oladapo, do solemnly declare that I have assisted in the
accurate completion of this form to the person concerned. I have been informed
by the person, and I do believe, that he/she completely understands the nature
and effect of these forms, and I make this solemn declaration conscientiously
believing it to be true and knowing that it is of the same force and effect as
if made under oath.
Mr. Oladapo checks
that he is a “Consultant” and signed the declaration on September 13, 2009.
[6]
The applicant, on October 14, 2009, signs and
declares the information in the form to be true. On October 15, 2009, the
Board sent the applicant a form letter acknowledging receipt of the refugee
claim and informs him that the Board must receive his completed Personal Information
Form (PIF) within 28 days or he will have to appear on November 25, 2009, for
an abandonment hearing. The letter also sets out his entitlement to legal
representation as follows:
Ø
at your expense or you may be eligible to
receive assistance from Legal Aid. For information about Legal Aid, read the
booklet called The Refugee Protection Claim Process – An Overview;
Ø
if you choose to hire counsel, you should do so
immediately, so that your counsel can send your PIF to the IRB on time and
prepare for your hearing;
Ø
you should hire a counsel who is able to send
your PIF on time to the IRB or to proceed on a scheduled hearing date, if not
you will have to hire another counsel who is able to do so;
Ø
if your counsel charges a fee, your counsel
must be a member in good standing of either a bar of a province, the Chambre
des notaires du Québec or the Canadian Society of Immigration Consultants in
order to be able to represent you before the IRB;
Ø
if your counsel charges a fee, your counsel must
provide the RPD with their membership identification number and the name of the
organization of which they are a member;
Ø
when you hire counsel after a date has already
been set for your hearing, you are responsible for making sure that your
counsel is available and ready to proceed on the scheduled date;
Ø
you should make sure that your counsel is
available on the scheduled date. The RPD may not change the date or time of
your hearing because your counsel cannot attend, therefore it may be necessary
for you to hire new counsel who is available on the scheduled date;
Ø
if you hire counsel or change counsel, you must
immediately advise the RPD and CIC, in writing, of the name, address, telephone
number, fax number and email address, if any, of your counsel, and if your
counsel charges a fee, their membership identification number and the name of
the organization they belong to. [emphasis added]
[7]
The PIF was filed in time and the applicant
signed Declaration A (as he did not require the assistance of a translator)
declaring the following:
I declare that the
information in this form and all attached documents is complete, true and
correct. I declare that I am able to read English and that I fully understand
the entire content of this form and all attached documents. My declaration has
the same force and effect as if made under oath.
[8]
The PIF contains a section entitled “Your
Counsel” and begins by asking the question “Do you have counsel?” The “No” box
was marked with an X and the remainder of the section which provides address and
other detailed information to be provided when an applicant has counsel was
marked “N/A.” Notwithstanding having sworn to the completeness and accuracy of
the PIF, in his affidavit, the applicant states: “I have just now noticed that
under the “counsel” section, this was blank.”
[9]
The CTR shows that a form entitled “NOTICE TO
APPEAR FOR A SCHEDULING CONFERENCE” dated March 2, 2011, was mailed to the
applicant (and to no one else) informing him of a scheduling conference on
March 21, 2011. That form contains the following at its end: “Note: If
you have retained counsel, please appear with a letter from counsel confirming
that he/she is retained and ready to proceed and also providing at least 6
available dates for the hearing of your refugee claim(s) [emphasis added].”
[10]
The applicant attended alone at the scheduling
conference, presented no letter from his alleged counsel, and the refugee
hearing was scheduled, with his knowledge, to be held on June 23, 2011. The
“ASSIGNMENT COURT HEARING INFO SHEET” filed at the scheduling conference by the
Presiding Member reflects that no counsel was present and that the Presiding
Member explained to the applicant the Convention refugee definition and his
right to counsel. There is nothing written on the form under the heading:
“Comments related to any of the above: (what efforts have been made to retain csl,
what is the likelihood of counsel being retained etc.)” nor does the applicant
in his affidavit attest that he informed the Board that he had counsel.
[11]
At the scheduling conference, the applicant was
handed a form entitled “PEREMPTORY NOTICE TO APPEAR” stating that he has to
appear on June 23, 2011, for the refugee hearing. That form also contains the
following statement:
You must be present
and ready to proceed by the scheduled start time. If you or your counsel
fail to appear as required, the RPD may, after giving you a reasonable
opportunity to be heard, determine your claim to be abandoned [emphasis
added].
[12]
No one appeared on June 23, 2011. The applicant’s
explanation for his failure to appear is that he had a scheduled medical
appointment that day.
Following [the
scheduling conference], I accidentally scheduled a medical appointment for June
23, 2011. When I received a notice to appear for a hearing of my claim of June
23, 2011, I spoke to Oladapo about what to do. He
advised me that it was not a problem to reschedule the hearing. I gave him a
medical note for the appointment, and he assured me and I believed that he
would attend the hearing to postpone it on my behalf. I did not keep a copy of
the note. I wish to emphasize that I would certainly have attended if I had
known that a medical appointment was not a valid reason for rescheduling the
hearing [emphasis added].
[13]
The emphasized portion of the applicant’s sworn
statement is contradicted by the objective evidence before the Court. He
swears that he made the medical appointment after the scheduling
conference and only realized the conflict when he received the Notice to
Appear; however, that form shows that he was personally served with it at the
Scheduling Conference. Therefore, contrary to his affidavit, he knew the date
of the hearing before he made the alleged medical appointment.
[14]
As a result of the applicant’s failure to
appear, the Board scheduled a show cause hearing and on August 23, 2011, mailed
a notice that it would be held on October 5, 2011. The applicant admits that
he received that notice but he again failed to attend. His reason was that he
again had a medical appointment:
Unfortunately, I also
had a medical appointment scheduled for October 5, 2011. When I received the
notice to appear for that day, I spoke to Oladapo and gave him a medical note
for that appointment. He again assured me and I believed that he would attend
on my behalf, and that it would not be a problem to postpone the hearing.
I should note that,
at that point, I was unaware that Olapado had not attended the June 23
hearing. Had I known that, I would have immediately retained new counsel, and
would have certainly have attended the October 5 hearing to explain all this.
[15]
This explanation is not credible. It is not
believable that the applicant would think that his medical appointment would
result in the postponement of the October hearing given that the hearing in
June had not been postponed for exactly that reason. At a minimum, it ought to
have raised a serious question in the applicant’s mind as to what steps his
consultant had taken to get the hearing postponed or explain his medical
appointments. If the applicant is to be believed, he simply took what Mr.
Oladapo said at face value and had none of the doubts that a reasonable or
careful person would, given the history to date.
[16]
No one appeared at the show cause hearing on
October 5, 2011, and the Board declared that the claim was abandoned. A Notice
of Abandonment Decision form dated October 13, 2011, was sent to the applicant
and written reasons were subsequently provided on January 4, 2012, when this
application commenced.
[17]
The applicant attests that when he received
notice that his claim had been abandoned, he was “shocked.” Again, he turned
to Mr. Oladapo, who he says told him he would file an “appeal to the Federal
Court, which apparently he did,” referring to the present application. The Application
for Leave and for Judicial Review states on its face that the address for
service on the applicant is “Arif Zaherali Hassan Dhalla, 2413 Islington
Avenue, Suite 604, Etobicoke, Ontario, M3W 3X6. Telephone Number (416)
802-1463 and Fax Number (416) 746-4080.” The Court notes that this is the
address Mr. Oladapo provided as his address in his declaration in the PIF. It
is not the address or phone number of the applicant.
[18]
It was at this point that the applicant retained
the law firm that now represents him. He says that in his presence, his
counsel called Mr. Oladapo and asked what had happened at the hearings. The
applicant attests to the following:
Oladapo stated that
he had sent my medical notes by fax to the RPD. He agreed to meet me on December
6, 2011 at his apartment (where I always met him previously) to give me a copy
of my file, including the correspondence with the RPD. He asked me to call to
confirm.
On December 6 and 7,
2011, I called him at the same number that [my counsel] had used, but he did
not answer, and his voicemail was full.
[19]
As a result, his counsel filed a request to the
Board under the provisions of the Privacy Act, and on December 1, 2011,
was provided with copies of all the records of the applicant in the Board’s files
(the ATIP disclosure). Rather than resolving questions, the ATIP disclosure
created more.
[20]
The first issue raised by the ATIP disclosure
that is noted by the applicant surrounds two medical letters.
[21]
The first medical letter that is contained in
the Board’s file is a letter from a dentist marked by the Board as having been
received on June 23, 2011, at around 1:40 pm, after the scheduled refugee
hearing had concluded because no one attended. The applicant says that it is a
forgery.
This letter is not the
letter I gave to Oladapo, I have never seen it until now, and I do not
recognize the name of the purported author or dental centre. This is clearly a
fake produced by someone else.
[22]
The applicant in oral submissions submits that
the language of the letter is so poor that it is obvious it was not written by
a dentist. It is dated June 22, 2011, is from Dr. Neelum Jamal of the Midtown
Dental Centre, addressed to whom it may concern, and is set out verbatim,
below:
22nd day of June,2011.
Dear
Sir/Madam
TO WHOM IT MAY CONCERN
The above named
patient by name ; Arif Zaherali H Dhalla is currently having dental
pains and will be undergoing treatment at our Dental Centre and would be
requiring some days off work.
This request arises
from the fact that he needs to perform a root Canal operation regarding his
teeth. His tooth requires Endodontic therapy due to Cavities infection deep
inside his tooth.
Thanking you in
Advance regarding your help and cooperation towards the above mentioned
Patient.
Your’s Faithfully,
Dr. Neelum Jamal.
[23]
The second medical report that is contained in
the Board’s file is a letter from a doctor received by the Board on October 6,
2011, at around 9 a.m., which the applicant says is also a forgery. He says:
I have never seen
this fax cover or medical note before. This is fax cover is not from me, and
is not in my handwriting. The medical note – which I can see is similar to the
fake medical note of June 23 – is not about me, and the purported author is not
my doctor. This is also clearly a fake. I am seeing the note for the first
time, and I am shocked.
[24]
This letter is dated October 5, 2011, is from
Dr. Hank C. Lee of the Regent Medical Clinic, is addressed to whom it may
concern, and is set out verbatim, below:
5th day of October,2011.
Dear
Sir/Madam
TO WHOM IT MAY CONCERN
The above named
patient by name ; Arif Zaherali H Dhalla is currently having a Migraine
which is caused by abnormal brain activity, which is triggered by stress ,
certain foods, environmental Factors and would be requiring some days off work.
His Migraine attack
may have been triggered by Physical or emotional stress, smoking or exposure to
smoke, Allergic reactions, loud noises or certain odors or perfumes or missed
meals.
I am therefore
recommending he has a CT scan or take an EEG testing to rule out seizures.
Thanking you in
Advance regarding your help and cooperation towards the above named Patient.
Your’s Faithfully,
Dr. Hank C. Lee.
[25]
The Court shares the applicant’s view that there
are remarkable similarities in these letters. The formatting is
identical, the first line is identical including its odd formatting and
underlining of the applicant’s name, the final paragraph is identical, and the
grammatically incorrect valediction is identical. Both are extremely suspect
and, in my view, fraudulent.
The Applicant
and the Lawyer
[26]
The second issue raised by the ATIP disclosure
that the applicant notes is that the Board’s files indicate that at some point
the applicant was represented by a lawyer, Adetayo G. Akinyemi. The applicant
attests in his affidavit: “I have no idea who this person is, and have never
met him or her.” He further states that he has filed a compliant with the Law
Society of Upper Canada regarding Mr. Akinyemi and attaches a copy as an
exhibit to his affidavit. The Minister notes, quite correctly, that there is
nothing in the affidavit or elsewhere to indicate that this complaint was filed
and is being considered by the Law Society.
[27]
This is where matters stood until a few minutes
before the scheduled hearing of this application when a letter from Mr.
Akinyemi dated September 20, 2012, addressed to myself as the hearing judge and
to the applicant’s counsel was received. The Court was informed at the hearing
that counsel for the respondent had been communicating with Mr. Akinyemi and
this apparently lead to him writing the following:
I am an Immigration
Lawyer in Toronto and I have represented and will continue to represent clients
at the Federal court.
My written
representation to this Hon. Court is brought forward to ensure that my name is
not tarnished, as I do not intend to speak on the merits of the case of this
Applicant.
I do NOT know and I
have never met Mr. Ali Dhalla and this fact is quite evident from the contents
of Mr. Dhalla’s affidavit dated the 7th day of December 2011, particularly at
paragraph 16 (a). (Copy of affidavit enclosed)
Furthermore, I do not
know and have never had a staff or representative called Ademola Oladapo
In fact, in his
complaint to the Law Society, Mr. Dhalla believes I am female which is
incorrect. (Copy of complaint enclosed)
Furthermore, in his
PIF, the claimant did not indicate he had any counsel. (Copy of PIF) enclosed.
The first indication
I ever got of the existence of Mr. Dhalla was when the Refugee Board sent me a
disclosure package for this client, indicating I was his counsel, which turned
out to be an obvious error.
Upon receipt of this
message, I was worried I may have misplaced or lost sight of one of my client’s
matters and I immediately instructed my assistant, Ms. Anyudy Urena, to write
to the Refugee Board asking for copies of this client’s PIF, so that I could
follow up, as I did not have Mr. Dhalla’s name on my list of clients. (Copy of
my assistant’s letter to the Board is herewith enclosed)
Despite my letter to
the Board, I never received a copy of the client’s PIF and when my assistant
called the Board to enquire whether my name was on the client’s PIF, she was
advised by the board that I was not listed on the client’s PIF as counsel.
I do not know how or
what document the refugee board relied on to contact me and upon my
instruction, my assistant notified the board that I was not counsel for this
individual, hoping that office would rectify any error with dispatch.
It is rather
disturbing that Mr. Ali Dhalla “scheduled” medical appointments on both days
he was expected to attend his hearing, particularly after his previous
experience of the 23rd day of June 2011 and the resultant letter of
23rd day of August 2011 that he received from the IRB. This is
however an issue that will be dealt with by the Federal Court in making a
decision on his Application for leave.
But for the error
from the scheduling unit of the IRB, there is not a single document relating to
Mr. Dhalla’s case that was prepared or sent by me on his behalf and I urge this
Hon. Court to vindicate me accordingly.
All of which is
respectfully submitted.
Dated this 20th
day of September 2012
Yours truly,
Adetayo G. Akinyemi
Barrister &
Solicitor
[28]
It was suggested by the applicant at the hearing
that Mr. Akinyemi’s letter contained false statements because he claimed that
his first knowledge of the applicant was when he received the Board’s
disclosure package but that this package was received some months after he
wrote to the Board seeking disclosure of the applicant’s PIF. On closer review
of the file, the Court is satisfied that the submission is not accurate; it is
premised on an incorrect view of the evidence. There were two disclosure
packages sent to Mr. Akinyemi and the first was sent to him only a few days
before his letter to the Board. Nonetheless, whether he became involved in the
applicant’s claim, how be became involved, and what his involvement, if any,
remain mysterious and raise further questions.
[29]
The CTR and ATIP disclosure contain the
following communications involving the Board and Mr. Akinyemi.
[30]
The first reference to Mr. Akinyemi is in a
internal Board document, Statement of Service, in the ATIP disclosure which
states that on May 2, 2011, the Board served the standard disclosure package
for Tanzania dated April 27, 2011, on “counsel” being Mr. Akinyemi. There is
nothing in either file to indicate that the Board had been informed by anyone
that Mr. Akinyemi was counsel for the applicant. I strongly suspect that this
was a clerical error made by a Board official.
[31]
This disclosure sent to Mr. Akinyemi caused him,
as he writes in his letter, to be worried that he may have lost sight of or
misplaced a client file. Accordingly, at his instruction, his secretary wrote
to the Board. That one page letter/fax is dated May 6, 2011, references the
applicant’s Board file number, and reads: “Kindly, forward a copy of my
client’s personal information form to my address noted above.”
[32]
Mr. Akinyemi says that he received no PIF in
response and upon following up, his assistant was told, correctly, that he did
not appear as the applicant’s counsel on the PIF. However, the copy of his
letter/fax in the ATIP disclosure from the Board has a handwritten notation on
it stamped May 17, 2011, that appears to read: “Copy of PIF [?BC NCR?] sent to
cnsl. Jessie.” The bracketed letters with question mark bookends are my best
guess at the handwriting. The notation may or may not indicate that Jessie
sent the PIF to Mr. Akinyemi – only Jessie knows.
[33]
Mr. Akinyemi goes on to say that he did not know
what document the Board relied upon to send him the document package but
instructed his assistant to contact the Board and notify it that he was not
counsel for the applicant. I have no reason to question Mr. Akinyemi, but note
that there is nothing in the material before the Court to objectively confirm
any such communication from his office. Nevertheless, there is evidence that
thereafter, and from time to time, but not consistently, the Board took the
view that the applicant had no counsel.
[34]
The Court notes, for example, that on the
Board’s Hearing Information sheet prepared for the Member for the June 23,
2011, hearing it is indicated that the applicant has “No Counsel.” Similarly
the RPD Hearing Disposition Record for that hearing also indicates that the
applicant has no counsel. Furthermore, in what appear to be notes of the
Member made in preparation for the June 23, 2011, hearing there is a notation
“No Counsel – nothing on file.”
[35]
However, there are other later documents in the
CTR and ATIP disclosure that indicate that from the Board’s perspective Mr.
Akinyemi was counsel for the applicant; specifically the following:
- A Re-Scheduling
Request Form for Postponed / Adjourned Cases bearing the date of June 24,
2011, lists Mr. Akinyemi as counsel and states his phone number and
contains a notation under the heading Special Instruction that indicates
that on June 27, 2011, a Board representative “spoke with counsel” and he
agreed to the matter being scheduled for October 5, 2011, at 1 pm.
- The Registrar of
the Board on August 23, 2011, sent a Notice to Appear for the show cause
hearing to be held on October 5, 2011, to both the applicant and Mr.
Akinyemi as “claimant’s counsel.”
- The Board’s form
prepared for the Member for the show cause hearing on October 5, 2011, as
well as the RPD Hearing Disposition Record indicate Mr. Akinyemi as
counsel of record.
- A Statement of
Service form of the Board reflects that on September 1, 2011, Mr. Akinyemi
was served with the Standard Disclosure Package for Tanzania dated August 31, 2011.
- The
Distribution/Statement of Service form dated October 13, 2011, indicates
that the Board served both the applicant and Mr. Akinyemi with the Board’s
decision declaring the claim to have been abandoned.
Issue
[36]
The applicant raises one issue: whether his
counsel, Mr. Oladapo and/or Mr. Akinyemi acted in an incompetent or fraudulent
manner, causing his refugee claim to be declared abandoned in breach of
procedural fairness and natural justice.
Analysis
[37]
Both the applicant and Mr. Akinyemi agree that
he was never retained by the applicant and never acted for him. I am satisfied
that the Board’s documents reflecting that he was counsel reflect a clerical
error on the part of the Board. More problematic is the Board’s document that
reflects that one of its employees had a discussion with Mr. Akinyemi
concerning the scheduling of the show cause hearing. If any such conversation
took place, I am prepared to accept, absent evidence to the contrary, that Mr.
Akinyemi did not understand that the matter involved the applicant and not one
of his clients. This is a matter the Board may wish to inquire into; however,
whether or not the conversation took place as recorded, it had nothing to do
with the applicant failing to appear at the show case hearing. The applicant
was aware of the date of the hearing but he failed to attend.
[38]
The applicant submits that a failure of natural
justice may result from the negligence or fraudulent conduct of a claimant’s
counsel. In appropriate and exceptional cases, an individual can be separated
from the consequences of the conduct of his own counsel. However, as is
rightly pointed out by the applicant in his memorandum of argument, this Court
has recently stated that “the negligence of counsel should not cause an
Applicant, who has acted with care, to suffer [emphasis added]:” Jane
Doe v Canada (Minister of Citizenship and Immigration), 2010 FC 284 at para
28.
[39]
One thing of which I am certain is that the
applicant has failed to demonstrate that he acted with care at any time prior
to the declaration of abandonment.
[40]
The applicant’s story of Mr. Oladapo is quite
simply not credible. There is no evidence that Mr. Oladapo was retained by the
applicant to do anything other than assist him in making the initial refugee
claim. I do not believe that he agreed to act as counsel at the hearing and
that the applicant only noticed that his name was absent from the PIF when he
received a copy of it as part of the ATIP disclosure. He attended the
pre-scheduling conference alone and, despite being informed of his right to
counsel, did nothing to advise the Board then or later that he already had
counsel. If, as he says, he had counsel, then there is no explanation from him
as to why he failed to mention this fact to the Board.
[41]
I further do not believe that he coincidentally
and inadvertently had two medical appointments on the two dates of the refugee
hearing and show cause hearing. I have already noted that contradiction in his
affidavit evidence as to the timing of the first appointment and the scheduling
of the hearing. I find it also significant that he has provided no explanation
of the purpose or nature of the two alleged medical appointments, much less
supporting documentation. He has not gone back to the doctors who allegedly
saw him to get replacement notes, or provided any documentation to support his
claim that he had these appointments. Critically, there is no explanation offered
as to why, if the applicant had provided Mr. Oladapo with genuine medical
notes, he would fabricate notes and send them to the Board. I find it
unbelievable that the applicant would believe that he could obtain an
adjournment because of a conflicting medical appointment in light of the
express warnings on the notices from the Board that if he failed to appear the
claim might be declared abandoned. Even if I were to give him the benefit of
the doubt the first time, it is beyond belief that he would think an
adjournment would be forthcoming on the second occasion when it was not granted
on the first.
[42]
I do not believe the applicant when he swears that
he did not know that Mr. Oladapo had not appeared at the June 2011 hearing
because he admits to having received a notice that says as much. I cannot
believe that any reasonable person would continue to return to Mr. Oladapo time
and time again, trusting him counter to all common sense and in the face of the
instructions being provided to him by the Board.
[43]
Even if I believed the applicant’s story – which
I do not – the only conclusion that can be drawn is that he has been anything
but “careful” in the pursuit of his claim. He did not attempt to reschedule
his alleged medical appointments. He did not read the clear instructions from
the Board on multiple occasions. He did not question Mr. Oladapo after
receiving the abandonment notice, or take extra care at that point. Frankly,
nothing suggests he did anything carefully in pursuing his refugee
claim.
[44]
In short, I find that it is the applicant, and
no one else, who is responsible for the abandonment declaration. He is the
author of his own misfortune. The Board’s decision is reasonable and just.
[45]
Neither party is proposing that a question be
certified.
[46]
I am directing the Court’s Registry to send
copies of these Reasons for Judgment and Judgment to both Mr. Akinyemi and the
Chair of the Board for their information and in the hope that each takes
whatever corrective action is considered necessary to prevent any further
incidence of the sort that occurred here.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is dismissed and no question is certified.
"Russel W. Zinn"
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