Date: 20080229
Docket: IMM-2242-07
Citation:
2008 FC 269
Ottawa, Ontario, February 29, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
GANGCONG
YANG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the March 26, 2007 decision of the Pre-Removal
Risk Assessment Officer (the Officer) N. Case, wherein he denied the
applicant’s application for a Pre-Removal Risk Assessment (PRRA).
I. Background
[2]
The
applicant is a citizen of China, born there on October 9, 1980. He resided
with his parents in China until 1989 when he moved to Peru with his
parents.
[3]
He
obtained permanent resident status in Peru.
[4]
In
2001he and his father applied for visitor visas to for Canada, but their
applications were refused. The applicant went to the United States in 2003 and
in January 2004, he walked across the border to Canada.
[5]
On
February 5, 2004, he made a refugee claim in Canada. He claimed that
he feared returning to China because of religious persecution, and that
he feared returning to Peru because native Peruvians discriminated
against him. He withdrew his claim for refugee protection on June 27, 2006,
because his Personal Information Form (PIF) contained false information, which
he attributes to the advice of his former agent.
[6]
Later,
the applicant decided to submit a Pre-Removal Risk Assessment (PRRA)
application.
[7]
In
his application, the applicant alleged that he feared returning to Peru because of
discrimination and because previous attempts to obtain police assistance had been
unsuccessful. He also stated that he feared returning to China because he
would not be able to practice his religion (Protestantism), freely and openly.
[8]
To
help him complete the PRRA application, he retained the services of Ning Ou and
paid him $500.00 on October 5, 2006 (plus $200.00 to assist him at the removal
interview). He helped the applicant complete the required form which was
submitted on October 10, 2006.
[9]
In
box 31 of the
application, he indicated that “I came to Canada by using
false documents, fraudulent means, or misrepresentation”. Box 54, “supporting
evidence”, was left blank as well as box F, “Counsel’s full name”, and box G,
“name of Canadian representative”.
[10]
On
October 5, a consultant helped the applicant complete the PRRA application
which was filed on October 10, 2006. The decision refusing the PRRA was
rendered on March 26, 2006.
II. The impugned
decision
[11]
The
officer reviewed the available country documentation in China (2005-2006),
consulting eleven international organization reports concerning the human
rights situation in China. He mentioned that the applicant has not
produced any objective evidence to show that he could not practice his religion
openly in his birth province in China. He indicated that the
documentation revealed that certain regions tolerated unregistered Protestant
churches.
[12]
The
officer also assessed the conditions in Peru where the
documentation revealed a history of discrimination towards Asians. The officer
found that freedom of religion was protected by the Constitution and was
generally respected in practice, by the government.
[13]
Finally,
the officer determined that the applicant did not provide sufficient objective
evidence that he had sought state protection.
[14]
The
applicant attacks this decision on the basis of the negligence and incompetence
of his consultant.
III. Issue
1. Was
the applicant denied natural justice and fairness through the incompetence of consultant?
IV. Standard of review
[15]
On
a question of natural justice and procedural fairness, the pragmatic and
functional analysis does not apply; the applicable standard of review is
correctness (Sketchley
v. Canada (Attorney General), 2005 FCA 404 at
paragraph 46).
[16]
Justice
John C. Major, on behalf of the Supreme Court of Canada, in R. v. G.D.B.,
2000 SCC 22, [2000] S.C.J. No. 22 (QL), stated at paragraphs 26 to 29:
26 The approach to an ineffectiveness
claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J. The reasons
contain a performance component and a prejudice component. For an appeal to
succeed, it must be established, [page532] first, that counsel's acts or
omissions constituted incompetence and second, that a miscarriage of justice
resulted.
27 Incompetence is determined by a
reasonableness standard. The analysis proceeds upon a strong presumption that
counsel's conduct fell within the wide range of reasonable professional
assistance. The onus is on the appellant to establish the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional
judgment. The wisdom of hindsight has no place in this assessment.
28 Miscarriages of justice may take
many forms in this context. In some instances, counsel's performance may have
resulted in procedural unfairness. In others, the reliability of the trial's
result may have been compromised.
29 In those cases where it is apparent
that no prejudice has occurred, it will usually be undesirable for appellate
courts to consider the performance component of the analysis. The object of an
ineffectiveness claim is not to grade counsel's performance or professional
conduct. The latter is left to the profession's self-governing body. If it is
appropriate to dispose of an ineffectiveness claim on the ground of no
prejudice having occurred, that is the course to follow (Strickland, supra, at
p. 697).
[17]
Thus,
in order to succeed, the applicant has to prove:
1.
The
counsel’s acts or omissions constituted incompetence;
2.
That
a prejudice was caused; or
3.
That
a miscarriage of justice occurred.
[18]
As
stated above, incompetence is determined by analysing whether the consultant’s conduct
fell within the wide range of reasonable professional assistance. The onus of
proving it rests upon the applicant, see Rodrigues v. Canada (Minister of
Citizenship and Immigration), 2008 FC 77, [2008] F.C.J. No. 108 (QL);
Gomez Bedoya v. Canada (Minister of
Citizenship and Immigration), 2007 FC 505, [2007] F.C.J. No. 680 (QL).
[19]
In
Chinese Business Chamber of
Canada v. Canada, 2005 FC 142, [2005] F.C.J. No 163 (QL) at paragraphs 25
and 32, Justice Anne L. Mactavish asserted the following regarding the creation
of the Canadian
Society of Immigration Consultants (CSIC):
[25]
On October 8, 2003, CSIC was incorporated. According to its
letters patent, the mandate of CSIC was to regulate immigration consultants, in
the public interest, and, in so doing, to establish a code of conduct, a
complain[t] and disciplinary process and a compensation fund to protect persons
who have sustained losses as a result of the acts or omissions of immigration
consultants. CSIC was also mandated to develop national educational programs
for immigration consultants.
[…]
[32]
In accordance with its by-laws, CSIC has also developed
membership requirements, including a fee structure. As well, it has developed a
code of conduct for its members, and a complaints and discipline process. CSIC
has established errors and omissions insurance requirements and competency
testing programs.
[20]
It
appears that while the CSIC has a complaint form available on its website, none
seems to have been filed by the applicant to report the misconduct of the
consultant.
[21]
As
Mr. Justice Max M. Teitelbaum wrote in Shirvan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1509, [2005]
F.C.J. No. 1864 at paragraph 31: “[b]efore examining allegations of incompetence,
the Court must first determine whether the [a]pplican[t] ha[s] met [his]
preliminary burden of giving notice to [the counsel] of the allegations.
[22]
In
the case at bar, the applicant’s new representative sent a letter, dated June
6, 2007, to the former counsel stating “that you filed his application form;
however, you failed to file the written submissions in support of the PRRA
application”.
[23]
The
counsel replied in a letter dated June 10, 2007, explaining the following:
Mr.
Gang Cong YANG retained me to fill his application form and write a submission
for his PRRA application. However, since Mr. YANG provided false personal
information to CIC when he first made his refugee claim, and when Mr. YANG was
found providing false personal information, he withdrew his refugee claim from
IRB not long before his refugee hearing. According to this situation, before I
could complete the submission, I need Mr. YANG to provide me with reasonable
reasons and any new evidences to support his claim that he would face the risk
of persecution in his home country or the country he had permanent status[.]
Other than pushing me to submit the document to Greater Toronto Enforcement
Centre, I did not receive any respondence [sic] in regard to the concerns of
reasons and/or evidence from Mr. YANG until the day of the deadline for PRRA
submission.
As
such, I finally helped Mr. YANG complete his PRRA form with no written
submission.
[24]
Notice
having been given, this Court has to assess whether the applicant has shown
that there was a reasonable probability that the result of the hearing would
have been different, if it was not for the counsel’s incompetence (R. v. G.D.B.,
[2000] 1 S.C.R. 520 at paragraph 26; Sheikh v. Canada (MEI), [1990] 3
F.C. 238 (C.A.) at paragraph 15).
[25]
In
this particular case, the PRRA application was signed by the applicant and
section F, where counsel’s information should have been written, is completely
blank.
[26]
The
following extract of Mr. Justice Yves de Montigny’s decision Gomez Bedoya, supra, at
paragraphs 19 and 20 demonstrates that the
test for incompetence of counsel is high:
The
standard for this Court to conclude that the lawyer’s incompetence was so
severe as to amount to a breach of natural justice is very high, as we can see
from the following extract of Shirwa v. Canada (Minister of
Employment and Immigration) (1994), 23 Imm. L.R.(2d) 123 (F.C.T.D.) at
paragraphs 11 and 12:
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 …
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.
In
addition, the applicants must show that there is a reasonable probability that
but for this alleged incompetence, the result of the original hearing would
have been different: Shirvan v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1509; Jeffrey v. Canada (Minister
of Citizenship and Immigration), 2006 FC 605; Olia v. Canada (Minister of Citizenship and
Immigration), 2005 FC
315.
[27]
The
respondent notes that the applicant retained his consultant on October 5, 2006
– the Thursday before the Thanksgiving weekend – while the application was due
on October 10. He also draws the attention of this Court to the fact that the
applicant withdrew his refugee protection claim because of the false
information contained in his PIF, but his PRRA application is a restatement of
the basis of his refugee claim and there is no information as to which
information in his PIF is false and which is true. Thus, the applicant’s
allegation of incompetence of his counsel becomes less plausible because the
applicant is the only person responsible for the facts set out in his PRRA
application.
[28]
The
applicant argues that an indicator of his counsel’s incompetence was the fact
that he did not ask the applicant to obtain a copy of the police reports and
that this caused the applicant a prejudice since the decision would have been
different if he had. On this point, the following extract of the decision
clearly shows that it would not have changed the outcome of the case:
The PRRA application indicates that the applicant attempted
to seek state protection however the state would not provide any help, “I
reported my experience to Peruvian police. The police would not provide me any
help.” The applicant did not provide any objective evidence to demonstrate that
he attempted to pursue the matter of state protection further. I find that the
applicant did not take advantage of the resources available to him for the
purposes of acquiring state protection. In Canada (Attorney General) v. Ward, [1993] 2
S.CC.R. 689[,] the Supreme Court established that the applicant has a duty to
seek State protection before soliciting international protection. As such, I
find that the applicant did not present sufficient objective evidence to
indicate that state protection was unavailable to him in Peru.
[29]
Furthermore,
subsection 161(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, clearly
stipulates that written submissions are optional by using the word “may”.
[30]
The
only “new evidence” the applicant presented since the decision, is a 1996
report on Peru and a 2005-2006 report on China (documents which were already
part of the documentation consulted by the PRRA officer).
[31]
Given
the lack of evidence to support the incompetence allegations and the
seriousness of such an allegation, this Court cannot interfere with the
decision rendered in the case at bar.
[32]
Thus,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
the application for judicial review is rejected. No
questions will be certified.
"Orville
Frenette"
Email this Content