Date: 20091118
Docket: IMM-2088-09
Citation: 2009
FC 1177
Ottawa, Ontario,
November 18, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
RAFE
SHAKIBAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Rafe Shakiban (the “Applicant”) seeks judicial review of the decision made by
the Pre-Removal Risk Assessment Officer (the “PRRA Officer”) on March 16, 2009.
In that decision, the Applicant was found not to be a person in need of
protection pursuant to section 97 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 and his Pre-Removal Risk Assessment (“PRRA”)
application was dismissed.
[2]
The
Applicant, a citizen of Egypt, entered Canada in 1998, as
a student. He claimed refugee protection in 2004 on the grounds that as a
Muslim apostate, he was at risk of persecution in his country of nationality.
The Immigration and Refugee Board (the “Board”) found that the Applicant had
failed to establish that there was a serious possibility that he would
experience the serious harm of persecution if returned to Egypt. The Board
made no negative credibility findings.
[3]
The
Applicant submitted a PRRA application on or about November 8, 2006. A written
submission dated November 16, 2006 was submitted by one Michael P. Caden, an immigration
consultant with Immigration Partners International.
[4]
In
the decision dated March 16, 2009, the PRRA Officer noted that the Applicant
had identified the same risks in his PRRA application that had been considered
by the Board upon the hearing of his refugee claim and further, that
insufficient evidence had been submitted to “persuade me to come to a conclusion
different than that of the RPD”. The Officer noted that country conditions in Egypt had not
deteriorated significantly since the RPD decision and referred to U.S.
Department of State, Country Reports on Human Rights Practices for 2004 and
2007.
[5]
The
Applicant now challenges the Officer’s decision on the grounds that his Counsel
upon the PRRA application failed to adequately and professionally make
submissions on his behalf and that the professional incompetence in that regard
gave rise to a breach of natural justice that merits judicial intervention.
[6]
The
appropriate standard of review when an alleged breach of natural justice is in
issue is that of correctness; see Ramanathan v. Canada (Minister of
Citizenship and Immigration), 74 Imm. L.R. (3d) 85 (F.C.).
[7]
In
Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2
F.C. 51, Justice Denault reviewed the jurisprudence relative to incompetent
counsel in the immigration context. Following his review of the jurisprudence,
Justice Denault set out a summary of relevant principles at paras. 11 and 12 as
follows:
11 While each of the foregoing cases
involve a different type of misconduct on the part of counsel, it seems 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. The criteria for reviewing such a decision are not as clear,
but it is possible to derive a number of principles from these cases. 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).
a.
In other
circumstances where a hearing does occur, the decision can only be reviewed in
"extraordinary circumstances", where there is sufficient evidence to
establish the "exact dimensions of the problem" and where the review
is based on a "precise factual foundation." These latter limitations
are necessary, in my opinion, to heed the concerns expressed by Justices
MacGuigan and Rothstein that general dissatisfaction with the quality of
representation freely chosen by the applicant should not provide grounds for
judicial review of a negative decision. However, where the incompetence or
negligence of the applicant's representative is sufficiently specific and
clearly supported by the evidence such negligence or incompetence is inherently
prejudicial to the applicant and will warrant overturning the decision,
notwithstanding the lack of bad faith or absence of a failure to do anything on
the part of the tribunal.
[8]
It
is clear that in order for an applicant to establish that representation by
incompetent counsel gave rise to a breach of natural justice, he must first
adduce sufficient evidence to identify the problem and the scope of that
problem.
[9]
In
the present case, the Applicant produced a complaint form that he had sent to
the Canadian Society of Immigration Consultants (“CSIC”), dated April 15, 2009.
He also produced a letter dated April 29, 2009 from the CSIC, acknowledging
receipt of the complaint.
[10]
In
his complaint, the Applicant simply said that the immigration consultant
“didn’t do his job and he messed up my case”.
[11]
In
the letter dated April 29, 2006, the Intake Officer for Complaints and
Discipline with CSIC said the following:
Thank you for your correspondence which was
received by the Complaints & Discipline Department on April 15, 2009.
In order to pursue the matter of your
complaint we require documentary evidence and a detailed written statement to
support your allegations that the member ‘messed up’, that he was ‘not
competent’ and that his services were ‘below professional standards’.
In the absence of a retainer agreement we
require a detailed description of the service the member was to render and the
associated fees. Also, we require:
1)
copies of
cheques or other proof of payments made to the member.
2)
a detailed
description of the main event of your complaint – the circumstances of your
H&C application and the Member’s alleged cancellation of your H&C
application.
3)
copies of
any correspondences sent or received from CIC.
4)
an
explanation as to why you are filing this complaint over three years after the
time Mr. Caden ceased to represent you.
5)
a timeline
of events indicating when you last had contact with the member
A complaint file will not be opened until
additional documentation is received.
[12]
There
is no evidence that the Applicant followed through with the provision of
further documentation to the CSIC to substantiate his complaint. In the absence
of such documentation, no complaint file would be opened by the CSIC.
Effectively then, there is no “complaint” outstanding.
[13]
The
Applicant has produced the PRRA submissions, dated November 16, 2006, that were
filed by the immigration consultant on his behalf. He now invites the Court to
draw the conclusion that the submissions were inadequate and demonstrate
professional incompetence to a level of a breach of natural justice.
[14]
I
am satisfied that the Applicant has failed to establish the evidentiary basis
to ground a successful argument concerning breach of natural justice arising
from incompetent counsel. In this regard, I refer to the decision in Nunez
v. Canada (Minister of
Citizenship and Immigration) (2000), 189 F.T.R. 147 at para. 19 where
Justice Pelletier said the following:
19 I am not prepared to accept an
allegation of serious professional misconduct against a member of the bar and
an officer of this court without having the member’s explanation for the
conduct in question or evidence that the matter has been referred to the
governing body for investigation. In this case, there was ample opportunity to
do one or the other but neither was done. The failure to do so is inconsistent
with the gravity of the allegations made. This is not a question of being
solicitous of lawyers’ interests at the expense of their clients. It is a
question of recognizing that allegations of professional negligence are easily
made and, if accepted, generally result in the relief sought being granted. The
proof offered in support of such an allegation should be commensurate with the
serious nature of the consequences for all concerned.
[15]
The
principle stated here is equally applicable to an applicant who is casting
doubt on his representation by an immigration consultant who is subject to
regulation by the CSIC.
[16]
In
the result, this application for judicial review is dismissed. There is
no question for certification arising.
ORDER
THIS COURT
ORDERS that this application for judicial review is dismissed. There is
no question for certification arising.
“E.
Heneghan”
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