Docket: IMM-4524-14
Citation:
2015 FC 350
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa. Ontario, March 19, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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[T.P.]
[T.P.]
[R.R.P.]
[Z.H.]
[B.T.P.]
[N.P.]
[N.J.P.]
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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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ORDER AND REASONS
I.
Introduction
[1]
The applicants, Mr. [T. P.], his wife, Mrs. [T. P.],
and their five minor children, are Roma and citizens of Hungary. They arrived
in Canada in September 2011 and, claiming that they were victims of racist, violent
incidents in their country of origin, they sought
Canada’s protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act).
[2]
As was the case with claims from other members
of their family before them, the applicants’ claim for refugee protection was
denied by the Refugee Protection Division of the
Immigration and Refugee Board (the RPD) on the grounds that it was not credible
and, in any event, the presumption that Hungarian authorities were able to
protect them if they returned to their country had not been rebutted.
[3]
The applicants’ file does have a unique aspect,
however. An incident of sexual abuse involving Mrs. [T. P.]’s brother-in-law in
which the victims were Mr. and Mrs. [T. P.]’s two minor daughters, also
refugee claimants in this case, occurred a little after their arrival in Canada.
Criminal charges were eventually brought against Mrs. [T. P.]’s brother-in-law ([M.
V.]) and he pleaded guilty. According to the applicants, this was followed by
threats of reprisals, for reporting the abuse to the police, from [M. V.] himself
as well as members of his family still living in Hungary.
[4]
However, these facts were reported to the RPD only
in January 2014, several months after the hearing of the refugee protection
claim began before the RPD in October 2013. The applicants submit that they
were unable to do so earlier because of advice from their lawyer at the time
who, according to the applicants, thought that incidents that occurred in Canada
were not relevant in the analysis of their claim for refugee protection. The
RPD did not accept this explanation and determined that these facts had not
been brought to its attention in a timely manner.
[5]
The applicants believe that the decision to disregard
the new facts raises two points that are fatal to the RPD’s denial of their
claim: the first point is that because of the lawyer’s incompetence, they were
victims of a denial of justice; the second point is that as a result the
analysis of the issue of state protection was fatally flawed.
II.
Analysis
A.
Denial of justice
[6]
In principle, the
appropriate standard of review for issues of procedural fairness is correctness
(Khosa v Canada (Minister of Citizenship and Immigration), 2009 SCC 12,
[2009] 1 SCR 339, at para 43; Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, at para 22).
[7]
However, to establish a denial of natural
justice based on a counsel’s incompetence, it must be established, first, that
counsel’s acts or omissions constituted incompetence and second, that a
miscarriage of justice resulted (R. v G.D.B., 2000 SCC 22, at paras 26
and 27; Yang v Canada (Minister of Citizenship and Immigration), 2008 FC
269, at paras 17 and 24; Pathinathar v Canada (Minister of Citizenship and
Immigration), 2013 FC 1225, at para 40).
[8]
This is a heavy burden. Indeed, a breach of procedural fairness based on counsel’s incompetence is a serious allegation and the threshold for demonstrating
incompetence is a high one. Thus, evidence
of counsel’s incompetence “must be so clear and
unequivocal and the circumstances so deplorable that the resulting injustice
caused to the claimant is blatantly obvious” (Parast v Canada (Minister of Citizenship and Immigration),
2006 FC 660, at para 11; Tjaverua v The Minister of Citizenship and
Immigration, 2014 FC 288, at paras 15-16; Odafe v Canada (Minister of
Citizenship and Immigration), 2011 FC 1429, at para 8; Nagy v Canada (Minister
of Citizenship and Immigration), 2013 FC 640, at para 60).
[9]
What is the situation here? The applicants submit
that the lawyer who represented them during the initial part of their RPD hearing
in October 2013, Mr. [A. V.], was allegedly placed in a situation that was [Translation] “if
not a conflict of interest, at least delicate” by representing both
their interests and those of [M. V.] in his criminal case. According to the applicants,
this would explain why Mr. [A. V.] did not encourage them to amend their
refugee protection claim in order to raise the fear of persecution that [M. V.]
and his family, at least the family that was still in Hungary, caused in them
after criminal charges were brought against them.
[10]
In my opinion, the evidence
on record clearly shows that Mr. [A. V.], after acting without a true mandate for [M. V.] during
his initial appearance before the criminal court in September 2012, quickly
took the appropriate steps to avoid being placed in a conflict of interest by
assigning, the following month, [M. V.]’s criminal file to another lawyer. Thus,
when the applicants’ refugee protection claim hearing began before the RPD in October
2013, the lawyer no longer was, and had not been for over a year, counsel for [M.
V.].
[11]
Moreover, the evidence also shows that Mr. [A.
V.] did not seem to be aware that [M. V.]’s family was threatening the
applicants. In a letter to the current lawyer for the applicants, the former lawyer
wrote the following:
[Translation]
With respect to the dispute between your
client and [M. V.], I do not believe that I was informed that [M. V.]’s family
was threatening your client in the country of origin, otherwise I would have
amended the reasons for the claim. Rather, I seem to recall informing your
client that the situation in Quebec could not be a reason for Canada to grant protection.
[12]
The incompetence
of counsel will constitute a breach of natural justice only in extraordinary
circumstances (Nagy, above, at para 63; Gogol
v Canada (FCA), [1999] FCJ No 2021 (QL), [2000] 2 CTC 302, at para 3; Huynh
v Canada (Minister of Employment and Immigration), 65 FTR 11, [1993] FCJ No
642 (QL)). However, here, it must be conceded that we are not, to paraphrase Parast,
above, dealing with a breach, assuming
there was any, so clear and unequivocal and so deplorable that the resulting
injustice caused to the applicants is
blatantly obvious.
[13]
As the respondent states in his memorandum, the
applicants do not submit that Mr. [A. V.] advised them not to mention
the threats from [M. V.]’s family. As he states in the letter above, Mr. [A.
V.] apparently told them rather that the situation in Quebec could not be a
reason for Canada to grant protection, which technically is not incorrect. Regardless,
it is far from clear and unequivocal
that Mr. [A. V.] was even aware of the threats from [M. V.]’s family. At
least, that is what he states in that letter.
[14]
The applicants argue that the injustice they
suffered was being unable to raise this threat in a timely manner. Given the
very strict burden on them, they were unable to prove that this injustice was
the result of Mr. [A. V.]’s actions, both with respect to the advice he gave
them and his alleged conflict of interest. The evidence on the record is
clearly insufficient to support the finding sought by the applicants.
[15]
It should be recalled that the RPD allowed the
applicants to testify again about the fact that they had been unable to present
all the facts behind their fear of persecution. The RPD determined that they
did not satisfactorily explain why there was a delay in raising the threat from
[M. V.]’s family. In particular, it rejected the grounds for delay based on Mr. [A. V.]’s
actions.
[16]
I cannot say that the RPD erred in this finding.
Above all, Mr. [A. V.]’s advice concerned the relevance of raising
facts about the applicants’ situation in Quebec. Interpreting this advice as
suggesting that there was no point in mentioning the threat from Hungary seems exaggerated
and without merit to me.
[17]
It should also be recalled that the applicants did
not file a complaint about Mr. [A. V.]’s actions with the Barreau du
Québec. One would think that if the actions were as serious as the applicants submit,
it would be grounds for a complaint with the Barreau.
[18]
For all these reasons, I find that the
applicants have failed to show that they suffered a denial of justice because of their lawyer’s actions.
B. State protection
[19]
It is well-established that RPD decisions regarding
state protection are reviewable against the standard of reasonableness since
they raise questions of mixed fact and law within the expertise of the RPD (Dunsmuir
v Nouveau-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras 51-55; Khosa,
above, at para 25; Rusznyak v Canada (Minister of Citizenship and
Immigration), 2014 FC 255, at para 23; Ruszo v Canada (Minister of
Citizenship and Immigration), 2013 FC 1004, 440 FTR 106, at para 22).
[20]
In this case, the RPD determined that the
applicants had failed to rebut the presumption of state protection, particularly
because they made no attempt to seek protection from Hungarian authorities
regarding the problems that led them to leave Hungary, whereas the evidence
shows that Mrs. [T. P.]’s father was able to avail himself of such protection
when he requested it. In this regard, failure to seek state protection, even
for Roma from Hungary, may be fatal to a refugee protection claim (Molnar v Canada
(Minister of Citizenship and Immigration), 2012 FC 530; Paradi v Canada
(Minister of Citizenship and Immigration), 2013 FC 996; Csonka v Canada
(Minister of Citizenship and Immigration), 2012 FC 1056). Accordingly, I
see nothing to justify intervening as the RPD decision falls well within the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (Dunsmuir, above at para 47).
[21]
However, this aspect of the application for
judicial review took a different turn at the hearing since counsel for the applicants
raised the fact that the RPD did not question the Hungarian state’s ability to
protect Mrs. [T. P.]’s two daughters who were victims of [M. V.]. Counsel
for the applicants even submitted that Mrs. [T. P.]’s two daughters would
then be [Translation] “refugees sur place”.
[22]
The problem with that argument, is that it was
not made specifically either before the RPD or in the applicants’ memorandum. Rather
they chose to try to attach these events to their initial refugee protection
claim and show that that a request for protection from the Hungarian
authorities related to the charges against [M. V.] in Canada had been
unsuccessful. The RPD did not deem credible the applicants’ evidence regarding
the reaction of the authorities to this request for protection and found that
they had failed to rebut the presumption of state protection in relation to
those events. It added that it would have been easy for the applicants to
obtain written proof of this request with the Hungarian authorities, but they
did not do so.
[23]
In this context, it is difficult to fault the
way that the RPD dealt with this issue and the findings it made. It is
important recall that it is not the RPD, but rather the applicants, who has the
burden of proving that the Hungarian state is unable
to protect Mrs. [T. P.]’s two minor daughters in relation to the feared
reprisals for the charges brought against [M. V.] (Lozada v Canada (Minister
of Citizenship and Immigration), 2008 FC 397, at para 27; Aggi de
Oliveira v Canada (Minister of Public Safety and
Emergency Preparedness), 2013 FC 488, at para 19; Gao v Canada (Citizenship
and Immigration), 2014 FC 202, at para 3).
[24]
It is also difficult for the Court to address
this new argument without the benefit of the crucial step of the determination of
the status of Mrs. [T. P.]’s two minor daughters as [Translation] “refugees
sur place”. This determination, which is based on significantly different
criteria than those applicable under sections 96 and
97 of the Act, was not made and it is unreasonable, in the specific
circumstances of this case, to claim that the RPD should have made that determination
since there were no indications of this transformation of the applicants’
refugee protection claim.
[25]
Thus, the applicants’ application for judicial
review will be dismissed.
[26]
Neither party requested the
certification of a question for the Federal Court of Appeal pursuant to paragraph 74(d) of the Act.
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