Docket: IMM-2621-16
Citation:
2016 FC 1354
St. John’s,
Newfoundland and Labrador, December 8, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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CHEDZA MUDONGO
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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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JUDGMENT AND REASONS
[1]
Ms. Chedza Mudongo (the “Applicant”) seeks
judicial review of the decision of an Officer (the “Officer”) refusing her
pre-removal risk assessment (“PRRA”) application, made pursuant to section 112(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”).
[2]
The Applicant, a citizen of Botswana, sought
protection on the basis of abuse by her husband whom she said she was forced to
marry. She sought assistance from one Mr. Ademola Oladapo in the preparation of
submissions in support of her PRRA, believing that he was a lawyer.
[3]
It transpired that Mr. Oladapo is neither a
lawyer nor a registered immigration consultant, and the submissions that he
filed on behalf of the Applicant were factually wrong.
[4]
The dispositive issue raised by the Applicant in
this judicial review application is that she was denied the right to a fair
hearing, since erroneous factual submissions were made by the so-called
“lawyer” on her behalf. She pleads that her right to procedural fairness was
breached.
[5]
The Minister of Citizenship and Immigration (the
“Respondent”) opposes the application and argues that the Applicant has
failed to establish a breach of procedural fairness and that she is responsible
for her choice of Counsel. He also argues that in any event, the decision of
the Officer is reasonable.
[6]
The standard of review for a breach of
procedural fairness is correctness; see the decision in Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43.
The merits of a PRRA decision are reviewable on the standard of reasonableness;
see the decision in Singh v. Canada (Minister of Citizenship and
Immigration), 2014 FC 11 at paragraph 20.
[7]
In the circumstances of this case and
considering the submissions of Counsel, I am satisfied that the Applicant was
denied her right to a fair hearing, arising from the actions of an imposter who
passed himself off as a lawyer.
[8]
Since Mr. Oladapo is not a lawyer or consultant,
his actions are not reviewable on the standards applicable to lawyers and
consultants. I refer to the decision in Cove v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 266 at paragraph 10 the Court said
as follows:
10 If individuals are going to hold
themselves out as skilled in immigration matters and, as is increasingly the
case, adopt the designation of "counsel", then they will be held to
the same standard as those who customarily appear before the Court. The
consequences to their clients of non-performance will be the same as it is for
clients of the immigration bar. There is no reason why the Court should shelter
consultants from negligence claims by overlooking their mistakes…
[9]
Mr. Oladapo presented a factually incorrect
basis for the Applicant’s PRRA and in my opinion, that fact means that she did
not receive a fair assessment of her claim to be at risk in her country of nationality.
[10]
In the result, this application for judicial
review is allowed, the decision of the Officer is set aside and the matter
remitted to another Officer for re-determination.
[11]
Counsel for the Applicant submitted the
following question for certification:
Irrespective of
whether there would be a reasonable probability of success, does the fraudulent
preparation of a pre-removal risk assessment application by a representative
who pretends to be a lawyer constitute a miscarriage of justice?
[12]
Counsel for the Respondent opposes certification
of the question.
[13]
I refer to the test for certifying a question,
as set out in Zhang v. Canada (Citizenship and Immigration) [2014] 4 F.C.R.
290 (F.C.A.) at paragraph 9. A question should only be certified when it
is a question of serious importance and is dispositive of the case.
[14]
In my opinion, the question proposed by Counsel
for the Applicant does not meet this test and no question will be certified.
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