Date:
20130611
Docket:
IMM-8361-12
Citation:
2013 FC 640
Ottawa, Ontario,
June 11, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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RENATA NAGY, VIOLA
ZITA ZDRAVIAK, PETER RICHARD ZDRAVIAK
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Applicants
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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
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 10 July 2012 (Decision), which refused the Applicants’ application to be
deemed Convention refugees or persons in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
Ms.
Renata Nagy, the primary applicant (hereinafter, the Applicant) is a
32-year-old woman from Hungary. She fears persecution in Hungary due to her Roma ethnicity. The secondary applicants are her minor children, whose
claims are based entirely upon hers. The Applicant’s background is set out in
her Personal Information Form (PIF) narrative.
PIF Narrative
[3]
Growing
up as a Roma in Hungary, the Applicant says she faced discrimination,
segregation and violence in school due to her ethnicity. As an adult, the
Applicant was not allowed to attend local events or go to certain places
because she was Roma. She tried to find employment, but could not.
[4]
In
1996, the Applicant met the father of her children. In 2004, she found out that
he was seeing another woman and had fathered a child in that relationship. The
Applicant and her spouse fought a lot over this, and sometimes he would
physically hurt her in front of their children. In 2010, the Applicant and her
spouse separated.
[5]
Recently,
racism in Hungary has become worse and there are many reports of racist attacks
on Roma. On one occasion when the Applicant was waiting for a bus, she was
attacked and molested by two young men. The Applicant decided she could no
longer live safely in Hungary, and decided to leave for Canada.
The
Applicant’s Representation
[6]
To
assist in her refugee claim, the Applicant hired a lawyer, Jozsef Farkas. The
Applicant says in her affidavit that Mr. Farkas advised her to keep her PIF
narrative brief, and that she would be able to add details at the hearing. The
Applicant’s PIF primarily discussed her years of harassment in general terms,
and at her oral hearing before the RPD the Applicant provided details about
specific events. The Applicant says that her former counsel did not assist her
with the PIF, did not file supporting documents and did not prepare her for the
hearing.
[7]
In
addition, the Applicant says that the grounds that Mr. Farkas put forward in
support of the request for an extension of time for the filing of the
application for leave were not true and accurate. According to the Applicant,
after her claim was refused Mr. Farkas assured her that he had filed everything
for the judicial review. The Applicant’s hearing before the RPD was on
10 July 2012, and when she did not hear anything by August, she grew
suspicious. Mr. Farkas provided her with a copy of an application for judicial
review dated 27 March 2012, in the name “Renata Nagy.” However, the Applicant’s
hearing was after this date, so she knew it could not be her application.
[8]
The
Applicant sought out new counsel on 17 August 2012. Her new counsel confirmed
by looking at the Federal Court website that Mr. Farkas had filed another
application for a “Renata Nagy” on 27 March 2012, but that application was
refused on 11 August 2012. The Applicant says she confronted Mr. Farkas, who
sought an extension of time from the Federal Court. In it, he cited a delay in
Legal Aid funding for the late filing.
[9]
The
Applicant made a formal complaint against Mr. Farkas to the Law Society of
Upper Canada on 13 September 2012. She also notified Mr. Farkas of her
allegations.
DECISION
UNDER REVIEW
[10]
In
her refugee claim, the Applicant said that she feared both her ex-spouse and
the Hungarian Guard. By Decision dated 10 July 2012, the RPD refused the
Applicant’s claim for protection for reasons of credibility.
[11]
The
RPD noted that the Applicant’s ex-spouse is currently living in Canada, but the Applicant has not tried to contact him and he has not tried to contact her
while living here. When asked if she had problems with him after he left in
2010, the Applicant said that he phoned her. When asked what he wanted when he
called, the Applicant said “I don’t know.” The RPD found that while the
Applicant asserted that her ex-spouse continues to harass her and she fears
him, her allegations were not supported by her testimony.
[12]
The
RPD accepted that the Applicant’s ex-spouse may have victimized her while they
were together, but that the evidence indicated that since they separated in
2010 he no longer threatens her. The RPD thought the Applicant’s claim was not
internally consistent and, in fact, the Applicant entered Canada with a letter stating that her ex-spouse agreed to her leaving Hungary with their children.
The Applicant testified that her ex-spouse’s family continues to harass her to
reconcile with him, but she provided no explanation as to why or how his family
would forcibly make her reconcile with him. The limited evidence on this issue
contradicted the Applicant’s allegations, and the RPD found her fear of her
ex-spouse lacking in credibility.
[13]
When
asked about her fear of the Hungarian Guard, the Applicant testified that she
was attacked when she was waiting for a bus. She said she was punched in the
face and as a result has a scar on her face, but she provided no explanation as
to how the punch resulted in a scar. She said she did not receive medical
attention.
[14]
The
Applicant also testified that she and her siblings and aunt were attacked by
members of the Hungarian Guard on 20 August 2009. She testified that they were
hit with rubber batons and beaten. When the Applicant was asked why she never
mentioned this incident in her PIF, she said that she “didn’t want to summarize
it in four pages” and “I don’t know why.” When asked how many people attacked
her, the Applicant replied that she did not know. When asked what she and her
family did after the incident, the Applicant replied that “we didn’t do
anything.”
[15]
The
RPD reviewed the PIF narrative and told the Applicant that it only included one
incident involving the Hungarian Guard. She disputed this, and insisted she did
refer to other incidents in her PIF. Some of the Applicant’s family members
remain in Hungary, but she provided no corroborating documents from those
members who were allegedly present at the attacks. The RPD concluded that the
Applicant’s testimony was embellished and lacking in corroborating documents,
and that she was generally lacking in credibility.
[16]
For
the above reasons, the RPD rejected the Applicant’s claim.
ISSUES
[17]
The
Applicant raises the following issues:
1)
Was
the Applicant denied natural justice and a fair hearing through the
incompetence of her former counsel?
2)
Did
the RPD err in its assessment of the Applicant’s credibility?
3)
Did
the RPD err by failing to reasonably assess the evidence as a whole and failing
to have regard for the totality of the evidence?
STANDARD
OF REVIEW
[18]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves fruitless
must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis.
[19]
The
first issue goes to the Applicant’s right to fully present her case, which is
an issue of procedural fairness (see Xu v Canada (Minister of Citizenship
and Immigration), 2006 FC 718, Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 SCR 817 [Baker] at
paragraph 22). In Canadian Union of Public Employees (C.U.P.E.) v Ontario
(Minister of Labour), 2003 SCC 29, the Supreme Court of Canada held
at paragraph 100 that it “is for the courts, not the
Minister, to provide the legal answer to procedural fairness questions.”
Further, the Federal Court of Appeal in Sketchley v Canada (Attorney
General), 2005 FCA 404 at paragraph 53 held that the “procedural fairness element is reviewed as a question of
law. No deference is due. The decision-maker has either complied with the
content of the duty of fairness appropriate for the particular circumstances,
or has breached this duty.” The standard of review applicable to the first
issue is correctness.
[20]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister
of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max
Teitelbaum held that findings of credibility are central to the RPD’s finding
of fact and are therefore to be evaluated on a standard of review of
reasonableness. Finally, in Negash v Canada (Minister of Citizenship and
Immigration), 2012 FC 1164, Justice David Near held at paragraph 15 that
the standard of review on a credibility determination is reasonableness. The
standard of review on the second issue is reasonableness.
[21]
As
to the third issue, the review and consideration of evidence is a factual
exercise to which deference is owed (Dunsmuir, above). The Applicant’s
arguments take particular issue with the RPD’s analysis of persecution and
state protection. The
issue of persecution is a matter of mixed fact and law that is reviewable on a
reasonableness standard (Divakaran v Canada (Minister of Citizenship and
Immigration), 2011 FC 633; Pararajasingham v Canada (Minister of
Citizenship and Immigration), 2012 FC 1416). State protection is also
reviewable on a reasonableness standard (Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94). Thus,
this issue shall be evaluated on a reasonableness standard.
[22]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
STATUTORY PROVISIONS
[23]
The
following provisions of the Act are applicable in this proceeding:
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Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of persecution
for reasons of race, religion, nationality, membership in a particular social
group or political
opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries;
[…]
Person in
Need of Protection
97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social
ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
[…]
Personne à
protéger
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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ARGUMENTS
The
Applicant
The Incompetence of Counsel
[24]
The
Applicant submits that her PIF as submitted falls below any acceptable standard
that would be expected from counsel. It was brief, lacking in detail, and did
not list “all significant incidents.” This undermined the Applicant’s claim, as
the RPD ultimately concluded that the omission of incidents from her PIF
undermined her credibility.
[25]
Judicial
review based on counsel’s incompetence should be granted only in exceptional
cases and where there is a reasonable probability that the result would have
been different but for the incompetence (Huynh v Canada (Minister of
Employment and Immigration), (1993) 65 FTR 11 (FCTD)). Counsel must be
given notice of the allegations and a chance to respond (Shirvan v Canada (Minister of Citizenship and Immigration), 2005 FC 1509). A solicitor is
required to act with reasonable care, skill and knowledge (Mathon v Canada
(Minister of Employment and Immigration), [1988] FCJ No 707 (TD)).
[26]
Clear
evidence must be presented of the incompetence for the Court to order a new
hearing (Betesh v Canada (Minister of Citizenship and Immigration), 2008
FC 173). The Applicant submits that the PIF narrative, along with the
post-decision actions of counsel, is clear and unequivocal evidence of
incompetence.
[27]
The
Court said in Shirwa v Canada (Minister of Employment and Immigration),
[1994] 2 FC 51 (TD) [Shirwa], at paragraph 12:
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.
[28]
The
Applicant submits, that but for the incompetence of counsel, there is a
reasonable probability that the result of the refugee hearing would have been
different (Yang v Canada (Minister of Citizenship and Immigration), 2008
FC 269 at paragraph 24). The RPD would not have stopped its assessment at the
issue of credibility, and would have gone on to analyse country conditions. In Memari
v Canada (Minister of Citizenship and Immigration), 2010 FC 1196 [Memari],
counsel was found to be incompetent based on the cumulative effect of her
incompetent representation.
[29]
Justice
David Near held in El Kaissi v Canada (Minister of Citizenship and
Immigration), 2011 FC 1234 at paragraphs 21 and 33:
A breach of procedural fairness inevitably occurs
where the incompetence of counsel prevents a refugee claimant from presenting
critical evidence to satisfy the Board and leads to negative credibility
findings that permeate the entire decision.
[…]
The incompetence of counsel resulted in a breach of
procedural fairness. Despite the reasonableness of the remainder of the
decision regarding subjective fear and re-availment, the negative credibility
finding based on the failure to produce a document and establish objective fear
at the outset prejudiced the Principal Applicant's claim. In my opinion, it is
far from certain that a reconstituted Board would necessarily reach the same
overall results. This is sufficient to warrant reconsideration by a
reconstituted panel of the Board.
[30]
In
Galyas v Canada (Minister of Citizenship and Immigration), 2013 FC 250
it was held at paragraphs 86-89:
Former counsel dispute the evidence put forward by
the Applicant but, in my view, there can be no disputing the inadequacies that
appear on the face of the Applicant's PIF narrative which clearly support his
allegation that he was left to prepare this important document by himself,
without guidance on what it should contain and what the RPD would be looking
for in such a narrative. Competent counsel would have known that the Applicant’s
narrative does not comply with the expectations of the RPD and that it would be
extremely detrimental to the Applicant at the hearing. Anyone with experience
before the RPD knows that it consistently and relentlessly draws negative
credibility findings from a failure to include important incidents in the PIF
and that, where an applicant is assisted by a lawyer, it will not accept a lack
of knowledge as to what should be included in a PIF as a reasonable
explanation. In that regard, the Applicant's PIF is a negative credibility
finding waiting to happen.
The evidence before me is undisputed that the
Applicant was left to write his PIF on his own and that, after doing so, he was
not advised that what he had written did not conform with the requirements set
out in question 31 as to what should be in a PIF narrative.
I am also satisfied that incompetent representation,
at least as regards the PIF, caused the RPD to find the Applicant was not
credible with regard to his fear of persecution in Hungary and that the result
could very well have been different had the Applicant been guided to prepare a
PIF that met the expectations of the RPD. It is apparent from the RPD's reasons
that it found the Applicant not to be credible after addressing each incident
of persecution raised by the Applicant, and then finding it was not addressed
in his PIF. I agree with the Applicant that the findings based on the
inadequate PIF permeate the whole Decision. Further, the Applicant has made
clear in his affidavit that he could have adduced additional evidence to
support his claim if he had had proper guidance from former counsel.
I am satisfied that this is one of those
extraordinary cases such as El Kaissi, above, and Memari, above,
where the incompetent acts of former counsel ultimately proved critical to the
RPD’s assessment of the claim and where the inadequate representation is
sufficiently serious so as to compromise the RPD's Decision.
[31]
The
Applicant submits that the negative credibility finding made against her was
because she did not know what to write in her PIF, and it is counsel’s role to
advise her on this. The Applicant says she was also prejudiced by counsel’s
failure to obtain corroborative documents. The Applicant submits that the
cumulative impact of this incompetence was a miscarriage of justice (Memari,
above).
Credibility
[32]
The
Applicant submits that the RPD erred by failing to assess her general
allegations of discrimination, and by focusing only on specific incidents. When
the Applicant was asked why incidents were omitted she replied “I do not know
why,” which is reasonable under the circumstances. The Applicant states that a
person would not know why something was omitted when she is unaware that she
should have mentioned it.
[33]
The
Applicant states that unless testimony is contradicted or undermined it should
be accepted as fact (Feradov v Canada (Minister of Citizenship and
Immigration), 2007 FC 101 [Feradov]). As was said in Pinzon v Canada (Minister of Citizenship and Immigration), 2010 FC 1138 [Pinzon], there
is a presumption of truth, and the RPD is under “a very clear duty to justify
its credibility findings with specific and clear reference to the evidence.”
[34]
The
RPD should not focus on a few points of error and engage in a microscopic
review of the evidence (Dong v Canada (Minister of Citizenship and
Immigration), 2010 FC 55). As the Court said at paragraphs 18-19 of Feradov,
above:
The Board’s concern about supposed omissions from
Mr. Feradov’s PIF is similarly unjustified. While the failure to mention
material or key allegations of persecution in one’s PIF is a reasonable basis
for concern, the omission of peripheral detail is not. This Court has
frequently held that the Board should not be concerned about minor or
collateral omissions from an applicant’s PIF: for example see Perera v.
Canada (Minister of Citizenship and Immigration), above; Singh v. Canada
(Minister of Employment and Immigration) (1993), 69 F.T.R. 142, [1993]
F.C.J. No. 1034 and Akhigbe v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 332, 2002 FCT 249. It is well understood
that these documents are often prepared by representatives or on the advice of
representatives with different views of materiality. In this case, Mr. Feradov
testified that “we did not write [the “PIF”]”. Surprisingly, the Board found
this response to be troubling when, at most, it was an ambiguous reply to the
Board’s question about the failure to provide dates in the PIF. The Board’s
additional concern about Mr. Feradov’s failure to mention in his PIF that he
could not drive home after the police beating is an example of the Board
analysing minutia with little more significance than Mr. Feradov’s failure to
state in the PIF how he got to the police station in the first instance.
Mr. Feradov’ PIF was clearly not intended to be an
encyclopaedic recitation of the evidence. To the contrary, it was obviously written
as a very general summary of the central aspects of his claim and the absence
of collateral detail ought not to have concerned the Board.
[35]
The
Applicant further submits that the RPD erred by requiring corroboration of the
Applicant’s testimony as a precondition to finding the claim credible (Aguirre
v Canada (Minister of Citizenship and Immigration), 2008 FC 571; Buri v Canada (Minister of Citizenship and Immigration), 2012 FC 1538 at paragraph 6; Pinzon,
above at paragraph 5).
Persecution
[36]
The
Applicant submits that the RPD also erred by failing to conduct a full
assessment of whether she would face persecution if returned to Hungary. The RPD did not assess the documentary evidence that speaks to the discrimination,
segregation and persecution of Roma in Hungary. The RPD had an obligation to
assess whether cumulative acts amount to persecution (Hegedüs v Canada (Minister of Citizenship and Immigration), 2011 FC 1366; Munderere v Canada (Minister of Citizenship and Immigration), 2008 FCA 84 at paragraph 42). The RPD
must give a “real explanation as to why the cumulative impact does not amount
to persecution” (JB v Canada (Minister of Citizenship and
Immigration), 2011 FC 210).
[37]
The
Applicant says she submitted ample documentary evidence on country conditions,
and it was an error for the RPD to simply ignore it (Mhando v Canada (Minister of Citizenship and Immigration), 2005 FC 422). The RPD must do more
than simply state that it considered the cumulative nature of discriminatory
acts (Mete v Canada (Minister of Citizenship and Immigration), 2005 FC
840).
State Protection
[38]
The
Applicant points out that the issue of state protection was completely ignored
by the RPD due to its negative credibility finding. Many cases of this Court
have found that adequate state protection is not provided for Roma in Hungary. See, for example, Hercegi v Canada (Minister of Citizenship and Immigration),
2012 FC 250; Rezmuves v Canada (Minister of Citizenship and Immigration),
2012 FC 334; Orgona v Canada (Minister of Citizenship and Immigration),
2012 FC 1438).
[39]
The
RPD must consider the operational adequacy of state protection (E.Y.M.V. v Canada (Minister of Citizenship and Immigration), 2011 FC 1364), and the Applicant need not
exhaust all potential avenues of protection (Malik v Canada (Minister of Citizenship and Immigration), 2003 FCT 453). The Applicant need not
put herself in danger seeking state protection (Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491). Not all organizations
in Hungary can actually provide protection to Roma (Katinszki v Canada (Minister of Citizenship and Immigration), 2012 FC 1326).
[40]
The
Applicant submits that the issue of state protection should have been
considered.
The Respondent
The
Incompetence of Counsel
[41]
As
a preliminary matter, the Respondent points out that the Applicant has filed a
complaint with the Law Society of Upper Canada (LSUC). Although a finding by
the LSUC would not be binding on the Court, it would be helpful in determining
whether there was a breach of natural justice in this case (Moryakina v
Canada (Minister of Citizenship and Immigration), 2012 FC 1455 at paragraph
11). The Respondent would not oppose an extension of time to allow the
Applicant to file a further affidavit including the LSUC’s or counsel’s
response to the allegations.
[42]
In
order to establish a breach of natural justice, the Applicant must demonstrate
that: (1) counsel’s acts or omissions constituted incompetence; and (2) a
miscarriage of justice resulted (R. v G.D.B., 2000 SCC 22 at paragraphs
26-27 [G.B.D.]). It is a high threshold for the circumstances and
evidence that are required to meet a finding of incompetence (Odafe v Canada (Minister of Citizenship and Immigration), 2011 FC 1429 at paragraph 8). With
respect to the performance component, the incompetence or negligence of counsel
must be sufficiently specific and clearly supported by the evidence (Shirwa,
above). The Court is reluctant to accept allegations of misconduct without
proof (Nunez v Canada (Minister of Citizenship and Immigration), [2000]
FCJ No 555 (TD)).
[43]
The
incompetence of counsel will constitute a breach of natural justice only in
exceptional circumstances, and the Court must be satisfied that a miscarriage
of justice has resulted (Memari, above). The Applicant must establish
that there is a reasonable probability that the result would have been
different but for the incompetence of counsel (Jeffrey v Canada (Minister of Citizenship and Immigration), 2006 FC 605 at paragraph 9).
[44]
Where
the Applicant cannot meet the prejudice component of the test, it is
undesirable for the Court to consider the performance component of the analysis
(G.B.D., above). The object of an ineffectiveness claim is not to grade
counsel’s performance or professional conduct; the latter is best left to the
profession’s regulating body.
[45]
The
Respondent points out that although the Applicant has access to the outcome of
the LSUC’s investigation and her former counsel’s response, she has not
provided this evidence. Therefore, a negative inference should be drawn by her
decision not to provide this evidence to the Court.
[46]
Furthermore,
the Respondent says there is no indication in the Applicant’s affidavit as to
how counsel’s actions resulted in a miscarriage of justice. The Applicant does
not explain what further information she would have included in her narrative,
what further preparation she expected from her counsel, or how it would have
affected the RPD’s credibility finding.
[47]
The
Applicant also does not explain what further documentary evidence she expected
her counsel to file at her refugee hearing. At the hearing, the following
documentary evidence was filed: a psychological report for the Applicant; a
hospital record for the Applicant’s son; a letter from the Applicant’s
ex-husband giving permission for the children to leave Hungary indefinitely; and country condition documentation. The Respondent submits that in
order for the Applicant to be successful in her argument that there was a
breach of procedural fairness arising from the incompetence of her counsel, it
was necessary for her to provide the Court with this missing information (Gomez
v Canada (Minister of Citizenship and Immigration), 2012 FC 568 at
paragraphs 21-25).
Credibility
[48]
Contrary
to the Applicant’s allegations, the Respondent submits that the RPD can draw a
negative inference from the Applicant’s failure to provide corroborating
documentary evidence that was readily available to her (Dundar v Canada
(Minister of Citizenship and Immigration), 2007 FC 1026 at paragraph 19; Samseen
v Canada (Minister of Citizenship and Immigration), 2006 FC 542 at
paragraph 30).
[49]
There
is a presumption of truth of an applicant’s testimony, but this presumption is
always rebuttable (Bustamante v Canada (Minister of Citizenship and
Immigration), 2002 FCT 499). Thus, it was not unreasonable for the RPD to
draw a negative inference from the fact that the Applicant failed to provide
any corroborating documents from family members who were allegedly present when
she was attacked by the Hungarian Guard in 2006.
Persecution
[50]
The
Applicant alleges that the RPD erred by failing to consider cumulative
persecution, and only considered two of the Applicant’s allegations of
persecution. However, the Applicant did not elaborate on other incidents in her
PIF or in her testimony when she was specifically asked what prompted her to
leave Hungary. The Respondent submits that the RPD should not be faulted for
not mentioning vague allegations, especially when the Applicant chose not to
testify about them.
State Protection
[51]
The
Respondent submits there is no error in the RPD’s decision not to make a
finding on state protection. The credibility finding was determinative, so
state protection did not need to be assessed (Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94).
ANALYSIS
Incompetence
of Former Counsel
[52]
The
Applicant says that the incompetent representation by former counsel rendered
her refugee hearing — and the subsequent Decision — procedurally unfair, but
she has not provided a sufficient evidentiary basis for these assertions.
[53]
She
says that former counsel did not assist her to prepare a proper PIF narrative.
Her PIF lacked detail so that the RPD did not assess the full situation. There
is no evidence before me which sets out what the Applicant thinks was missing
from her PIF that could have changed the Decision.
[54]
In
addition, the Applicant was given the opportunity to explain at the hearing
what she feared in Hungary and why she required refugee status. She said she
feared her ex-common-law spouse and his family, and the Hungarian Guard. These
are the risks that are dealt with by the RPD.
[55]
This
is not a situation where the RPD found the Applicant not to be credible
exclusively on the basis of discrepancies between an inadequate PIF and details
put forward at the hearing. Some of the credibility findings of the RPD are
based solely upon the Applicant’s testimony at the hearing.
[56]
The
Applicant says that her former counsel was incompetent because he failed to
file supporting documents. Once again, however, this remains a bald allegation
because she has failed to say what supporting documents should, or could, have
been filed that were not filed.
[57]
She
also says that former counsel failed to prepare her properly for the refugee
hearing, but there is no evidence for this other than the Applicant’s bald
assertion. The same problem arises over the Applicant’s assertion that her
former counsel was incompetent at the hearing. She fails to explain the nature
and scope of this alleged incompetence and how it affected her right to a fair
hearing, and simply expects the Court to accept her unsubstantiated assertions.
[58]
As
the Decision shows, the one area where the PIF was used to question the
Applicant’s credibility was in relation to her fear of the Hungarian Guard and
the past incidents upon which that fear was based. Even here, the discrepancy
plays a minimal role — if any — in the RPD’s overall credibility finding. At
the hearing, the Applicant did not say that her former counsel had failed to
advise her not to put all details in her PIF. She simply disagreed with the RPD
and said that she did not refer to the other incident in her PIF.
[59]
As
the Respondent points out, in order to establish that the incompetence of one’s
counsel resulted in a breach of procedural fairness, the onus is on an
applicant to establish that:
1.
Counsel’s
acts or omissions constituted incompetence; and
2.
A
miscarriage of justice resulted.
See G.D.B., above, at paragraphs
26 and 27; and Yang, above, at paragraphs 15 – 18.
[60]
There
is a high threshold governing the circumstances and evidentiary criteria that
must be met before the Court will grant relief under section 18.1 of the Federal
Courts Act on the basis of the negligence of counsel. See Odafe,
above, at paragraph 8.
[61]
With
respect to the performance component, the incompetence or negligence of the
representative must be sufficiently specific and clearly supported by the
evidence. See Shirwa, above, at paragraph 12; and Memari, above,
at paragraph 36.
[62]
This
Court has been reluctant to accept allegations of professional misconduct in
the absence of proof. Nunez v Canada (Minister of Citizenship and
Immigration), 2000 CanLII 15156 (FC), at paragraph 19 states that:
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.
[63]
It is
clear then, that the incompetence of counsel will constitute a breach of
natural justice only in extraordinary circumstances. See Huhnh, above,
at paragraph 23; Gogol v Canada, 1999 CanLII 9262 (FCA), at paragraph 3;
and Memari, above, at paragraph 36.
[64]
In
the present case, there is insufficient evidence to support the allegations of
incompetence and insufficient explanation as to how former counsel’s conduct
has led to procedural unfairness in this case.
Other Grounds
[65]
The
Applicant alleges a variety of other grounds for review:
a.
The
RPD failed to assess general allegations of discrimination and persecution in
full;
b.
The
RPD erred by requiring corroboration;
c.
The
RPD failed to assess the general situation of Roma in Hungary;
d.
The
RPD failed to consider cumulative persecution;
e.
The
RPD ignored documentary evidence;
f.
The
RPD failed to conduct a state protection analysis.
[66]
None
of these allegations stands up to scrutiny. The jurisprudence, related to Rule
7 of the Refugee Protection Division Rules, makes it clear that the RPD
can take into account an applicant’s lack of efforts to obtain corroborative
evidence where it should be available and that the presumption of truth is
always reviewable. See Akhtar v Canada (Minister of Citizenship and
Immigration), 2004 FC 1319 at paragraph 5; Samseen, above, at
paragraph 30; Dunbar, above, at paragraph 19; and Adu v Canada (Minister of Employment and Immigration), [1995] FCJ No 114 (FCA), at paragraph
1. In the present case, the RPD was not unreasonable in drawing a negative inference
from the Applicant’s failure to provide corroborative evidence from family
members who she alleged were present when she was attacked by the Hungarian
Guard in August 2009.
[67]
The
Applicant was specifically asked by the RPD why she left Hungary and she said
nothing about the references in her PIF to being teased at school, refused
entry to an amusement park, excluded from events held on the premises of her
residence, and the trouble she had finding a job. The RPD was entitled to
identify the specifics of her concerns and did so at the hearing where she did
not say she feared general discrimination and persecution. She said she was
afraid of her former common-law spouse and his family, and the Hungarian Guard.
See Escorcia v Canada (Minister of Citizenship and Immigration), 2007 FC
993 at paragraph 15.
[68]
Nor
was the RPD obliged to assess the general situation of Roma in Hungary. As the Court has pointed out on past occasions, it is not sufficient for an
applicant to point to a country’s general negative human rights record. See Masanganise
v Canada (Minister of Citizenship and Immigration), 2004 FC 993 at
paragraph 15.
[69]
In
this case, the Applicant’s account of personal risk (even as a Roma) was just
not credible. General documentary evidence of Roma in general is not enough.
[70]
Because
the Decision was based upon a lack of credibility — the Applicant could not
establish that she faced section 96 persecution or section 97 risk if returned
to Hungary — there was no need for the RPD to conduct a state protection analysis.
Issues Raised at the Judicial Hearing
[71]
At
the oral hearing of this application before me in Toronto on 10 April 2013, the
Applicant raised additional grounds for saying that the Decision is
unreasonable. Without withdrawing any of the written submissions, counsel for
the Applicant focused upon:
a.
Inappropriate
implausibility findings;
b.
The
presumption of truthfulness; and
c.
The
failure of the RPD to provide adequate reasons for its credibility findings.
[72]
In
essence, the Applicant says that the RPD, in making its negative credibility
findings:
a.
Confused
incredibility with implausibility;
b.
Ignored
cultural considerations;
c.
Alleged
inconsistencies and contradictions where none existed;
d.
Misstated
the evidence;
e.
Made
findings not supported by the Applicant’s actual testimony and other evidence;
f.
Relied
upon a lack of corroborating documents where none were required because there
were no contradictions in the Applicant’s testimony.
[73]
As
regards paragraph 7 of the Decision and the fear of her ex-common-law spouse,
the RPD found the Applicant’s claims were not internally consistent and that
the limited evidence on this issue from the Applicant herself contradicted her
allegations.
[74]
The
Applicant’s evidence is internally inconsistent because her ex-spouse is in Canada and has done nothing but phone her once. This does not sound like someone who is
continuing to harass her.
[75]
In
her testimony (CTR, pages 148 – 149), she said that her ex-spouse’s parents
wanted them to reconcile because “while he was with me his drug addiction was
controlled” and that the parents are
… going to want to force me to make up with him, to
get back together with him because he’s going to come home. He never tried it
here because he knows that I can count on the Canadian police here, so he’s not
daring to. But back in Hungary there are no such laws to protect me from these
things.
[76]
Clearly,
then, the RPD is correct to say that her ex-spouse has not made contact with
her, or threatened to insist they reconcile. The Applicant appears to be
suggesting in her testimony that if she goes back to Hungary, all of this will
change, and he will return and harass her in a context where she has no
protection. The RPD does not accept this because it is inconsistent with the
ex-spouse providing a letter so that she could enter Canada with her children
“for an unlimited period of time.” The Applicant says it is not inconsistent
but, although it is possible to disagree, I do not think it is unreasonable for
the RPD to find it so. The fact of the ex-spouse’s parents wanting the couple
to reconcile because he deals with his drug problems better when he is with
her, does not mean that the ex-spouse wants to get together and will harass her
if she resists. Since they came to Canada, he has made no real attempt to
reconcile. She said she did not know what he wanted, even on the one occasion
when he called her. I see nothing unreasonable in a conclusion that the
“limited evidence on this issue from the claimant contradicts the claimant
allegation” that she fears her ex-spouse because he will harass her to get back
together. I do not think the RPD is confusing plausibility within credibility.
The RPD is simply saying that the Applicant has not provided sufficient
evidence to support the allegation that the ex-spouse will harass her or, if
she goes back to Hungary, that he is interested in following her back there to
harass her.
[77]
As
regards paragraph 8 of the Decision, even if the Applicant did provide an
explanation for her ex-spouse’s parents wanting the couple to get back
together, (i.e. her influence on his drug dependency) there is no explanation
as to “how” his family could make them reconcile.
[78]
In
paragraph 7 of the Decision, the RPD acknowledges that the husband did try to
contact her in Canada in 2010, but provides reasons as to why this does not
mean he will follow her back to Hungary to harass her there.
[79]
In
her testimony, the Applicant did say that he phoned because he wanted to get
back together, but she also said (CTR, page 135, lines 14 – 16):
Member: So
what did he want exactly if he married somebody else?
Claimant: I
don't know. Regardless of the fact he was living with me. He married that other
woman.
[80]
The
Applicant also argues that the fact that the ex-spouse provided a permission
letter for her to leave Hungary does not mean she does not fear him. This is
undoubtedly so, but the RPD found that the permission letter, when taken
together with the other factors cited in paragraph 7 of the Decision,
showed that she lacked subjective fear. The fact that it is possible she may
still fear him does not render the RPD’s conclusion on this point unreasonable.
[81]
As
regards paragraph 8 of the Decision and the Applicant’s fear of the Hungarian
Guard, the Applicant did explain how she came by the scar on her face (CTR,
page 137, line 19): “They punched me with their hand.” She also testified with
regard to the second alleged attack that there were “many, many” rather than
that she did not know. However, these are peripheral to the overall finding on
credibility and the RPD was entitled to take into account that there was no
other evidence to corroborate the second incident which had not been mentioned
in her PIF. The RPD concludes, correctly, that her “testimony regarding the
incident was limited regarding the number of people who attacked her and what
she and her family did afterwards.”
[82]
The
Applicant also argues that the lack of corroborating documents was insufficient
to find she was not credible, but this is only one of the factors taken into
account. The Applicant complains that she was not asked to provide further
details by the RPD, but it seems to me that the RPD is referring to “what she
and her family did afterwards” and the fact that she did not mention her
failure to seek medical attention in her PIF.
[83]
Taking
into account the new points raised by the Applicant, I cannot say that they
impact the Decision in a way that renders it unreasonable. When I read through
the CTR, it seems to me that the Applicant provided very little to support her
stated fears.
[84]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
i.
The
application is dismissed.
ii.
There
is no question for certification.
“James Russell”
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