Date: 20000310
Docket: IMM-1601-99
BETWEEN:
NAUREEN FATIMA
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
Introduction
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act1 (the "Act"). The decision of the CRDD is dated the 19th of February, 1999.
Background
[2] The applicant is a citizen of Pakistan who is 23 years of age. She was married in April of 1996 to a fellow Pakistani who was politically active in the People"s Party of Pakistan (the "PPP"). Until the 6th of November, 1996 when the central PPP government was dismissed by the then President, the applicant and her spouse had few, if any, difficulties. In fact, according to the narrative in the applicant"s first Personal Information Form ("PIF"), they lived a "...very luxurious life". Following the dismissal of the central PPP government, things changed dramatically for the worse for the applicant and her spouse. The applicant"s spouse was arrested, detained for four days and beaten. He was only released upon payment of a bribe. The applicant"s spouse continued to be threatened and harassed. He urged the applicant, who was expecting their first child, to leave Pakistan, but she refused. On the 24th of November, 1996 the applicant"s spouse left home "for a few hours" and never returned. The applicant has not heard from him since.
[3] The applicant was accused of being complicit in her spouse"s disappearance. She was manhandled and threatened with arrest. She moved to her father"s home. Thereafter, both she and her father were harassed and threatened. In the result, the applicant"s father arranged for her departure to Canada and the applicant arrived in this country on the 9th of February, 1997. She filed her claim for Convention refugee status on the 27th of February, 1997. In April of the same year, she gave birth to a daughter here in Canada.
[4] The applicant sought legal aid to support her Convention refugee claim. In due course, she retained the services of a law firm in Toronto where her file was dealt with, not by a barrister and solicitor, but rather by an immigration consultant who was substantially responsible for the preparation of the first narrative to her PIF since the applicant was not at all fluent in English.
[5] The immigration consultant represented the applicant at the first hearing of her refugee claim before the CRDD. During that hearing, the applicant"s first PIF narrative was amended in two very significant respects, following which the applicant testified for some three hours.
[6] The applicant was apparently not satisfied with the representation she was receiving. She consulted members of the Pakistani community in Toronto and, in the result, retained a barrister and solicitor in a different law firm from that with which her immigration consultant was associated.
[7] The hearing before the CRDD continued over four further sessions.
[8] At the opening of the second session before the CRDD, the applicant"s counsel, appearing for the first time, brought three motions: first, for an adjournment to allow for preparation of a new PIF narrative and to allow counsel to further prepare; second, for a de novo hearing on the grounds of incompetence of the applicant"s first representative, the immigration consultant; and third, to revoke the consent on behalf of the applicant to a hearing before a single member panel. The latter two motions were associated with the applicant"s claim that her hearing involved issues related to her gender and she therefore wished to have the CRDD panel supplemented with a female member.
[9] The single member panel of the CRDD granted the motion for an adjournment but denied the motions for a de novo hearing and revocation of consent to a single member panel.
Decision of the Convention Refugee Determination Division
[10] In its reasons for decision, the CRDD records that it rejected the claim for a de novo hearing essentially on the basis that, in its opinion, the applicant had not been prejudiced through representation at the first sitting by the immigration consultant. The motion to revoke the consent to having the applicant"s claim heard by a single member was rejected on the basis that it "...would impede the proceedings and cause an unnecessary strain on the Board"s resources." The CRDD concluded that it saw no violation of the principles of natural justice in proceeding without a female member of the CRDD as part of the panel.
[11] The CRDD determined that it found the claimant "...lacking in trustworthiness and, therefore, in credibility with respect to some key elements of her claim." It noted the addition of two "...very material" allegations in the revision of the narrative portion of her PIF which, it wrote, "...go to the heart of the claim." After further noting the applicant"s difficulties with the immigration consultant and her very limited ability in English, the CRDD wrote:
| ... |
| This shall not absolve the claimant of her responsibility to see that the basis of her claim is clearly spelt [sic] out in her PIF, with no significant events excluded. I note that the claimant is an intelligent, well-educated young woman who holds a degree in political science . She was assured, self-possessed and articulate at the hearing. It is, therefore, not unreasonable to conclude that the claimant would have understood the importance of the two material allegations and would have insisted on having them included the first time the PIF was prepared and not leave it to be added later. Secondly, the key allegation of the second event, purportedly the one which precipitated claimant"s departure, that the father was threatened that the claimant would be kidnapped, was left out in the amendment, made by [the immigration consultant]. It was only mentioned in the new PIF, presented by the present counsel. I also noted that the claimant did not mention the kidnapping threat during the examination-in-chief by [the immigration consultant] at the first sitting. Thirdly, the allegation that the claimant was man-handled by police on November 26, 1996, by being slapped, the force of which made her fall to the ground, was only mentioned in the new PIF. Neither was this mentioned in the first PIF nor was it added as an amendment. It was also not mentioned in the oral testimony when the claimant spoke about the incidents which happened during the time period between her husband"s departure...and her moving to her father"s home.... Fourthly, the claimant spoke of MQM workers and police coming together to her father"s place in her testimony at the first hearing which is not consistent with her written evidence of both PIFs that only MQM workers came to her father"s house. It is my finding that the claimant has clearly demonstrated that she was making up her story as she went along from the day she got her first PIF prepared. Had all these events taken place as alleged, I would have expected the claimant to give a clear, consistent and detailed account right from the beginning. In my opinion, the two aforementioned amended allegations were concocted and added at the last minute in the belief that it would bolster the claim. After having added them prior to going on record at the first hearing, they were repeated in the new PIF and reinforced with kidnapping threat. In sum, it is my finding that the allegations are contrived and, therefore, not credible. [emphasis added.] |
[12] The CRDD went on to reject: testimony regarding letters the applicant received from her father, since she could not produce those letters; a psychological report, since it was based upon the applicant"s story that the CRDD determined not to be reliable; affidavits from the applicant"s father and father-in-law on the basis that they were "self-serving"; and finally, a letter from an individual on the letterhead of the PPP.
[13] The CRDD concluded:
| It is not beyond the claimant, whom I found not credible, to submit a forged letter if she thought that such a document would advance her claim. |
The Issues
[14] In a supplementary memorandum of argument filed on behalf of the applicant, counsel raised nine issues almost entirely arising out of the failure on the part of the CRDD to accept that the applicant was substantially prejudiced in her claim to Convention refugee status by the "incompetence" of the immigration consultant who first acted on her behalf and the failure of the CRDD to grant the motions for a de novo hearing and reconstitution of the panel hearing her claim as a two member panel. It is of some interest to note, but I conclude in no sense determinative, that counsel for the applicant was supported in his view of the competence or lack thereof of the immigration consultant and in his application for a de novo hearing, by the Refugee Claims Officer who took part in the first and second hearings on the claimant"s claim.
Analysis
[15] The issues that were before the CRDD were identified at the first hearing before the CRDD as identity, well-foundedness of the applicant"s fear of persecution, failure on the part of the applicant to make a claim in the United States before her arrival in Canada, delay in claiming status in Canada and the potential of an internal flight alternative for the applicant in Pakistan. A close review of the transcript of the first hearing before the CRDD discloses that the immigration consultant who represented the applicant at that hearing, albeit with some difficulty, ensured that the applicant adduced evidence on each of these issues. Further, in subsequent hearings before the CRDD single-member panel, the applicant and her new counsel were given the opportunity to adduce testimony, once again, on each of the issues.
[16] While the first narrative portion of the applicant"s PIF, prepared by the immigration consultant, is rather appalling in its grammar, syntax, spelling and use of language, with the exception of the two significant incidents that were subsequently added at the first session before the CRDD, it is reasonably complete. The applicant was aware that references to the two incidents were missing and apparently did not take action or objection when the immigration consultant indicated to her that they would be added "later" as they were at the first hearing.
[17] As to representation by an immigration consultant rather than a barrister and solicitor, the following exchange took place before the CRDD:
| Claimant: As I said it before, that after meeting him once or twice, he said that he [the immigration consultant] was the one who was going to present my case, and then I said, "It"s okay." So I thought that he"s the one who will go and present the case, Urdu cases himself. |
| Presiding Member: So you accepted that he was going to present your case? |
| Claimant: So I thought if he"s - I took it that if he"s going to take it, present it, yes, let him do it.2 |
Clearly, the claimant was at least initially satisfied to be represented by the immigration consultant.
[18] As to consent to hearing by a one member panel, the following appears in the Tribunal Record:
| Presiding Member: |
| ... |
| Furthermore, the claimant has given consent to a one-member panel, and this panel had already heard three hours of evidence - this panel had already heard three hours of evidence - so it is not fair for the board to be impeded in it"s proceedings, and which has got a mandate to hold the hearing in an expeditious manner. I do not see why this one member panel cannot continue to hear this claim. |
| I"m sorry, counsel, that I cannot grant your request [for a de novo hearing or a hearing by a two member panel]. |
| So, I have summarized. Counsel, this summarizes - do you agree with my summary? |
| Counsel: Yes, that"s fine.3 |
[19] Clearly, in the course of the hearing of this matter before the CRDD, counsel for the applicant acknowledged that the claimant had given consent to a one-member panel and I find it not now to be open to the same counsel to urge that, such consent not being in writing, it should be disregarded.
[20] As was noted in the reasons of the CRDD, "there is no absolute right to legal representation" before the CRDD. Subsection 69(1) of the Act provides as follows:
69. (1) In any proceeding before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person"s own expense, be represented by a barrister or solicitor or other counsel.
69. (1) Dans le cadre de toute affaire dont connaît la section du statut, le ministre peut se faire représenter par un avocat ou un mandataire et l'intéressé, à ses frais, par un avocat ou autre conseil.
[21] The burden of the jurisprudence of this Court is to the effect that incompetence of counsel, whether a barrister and solicitor or other person, is not a ground for success on an application for judicial review in the absence of a clear indication that the incompetence is evidenced before the tribunal in a manner that demonstrates to the tribunal substantial prejudice to the applicant. In Kumarasamy v. Canada (Minister of Citizenship and Immigration)4, Mr. Justice Cullen wrote at paragraph 13:
| Although I have a great deal of sympathy for the applicant, I do not find that the incompetence of counsel was so gross as to warrant judicial intervention. As I understand the case law, the quality of the representation must have decisively affected the outcome of the hearing. |
[22] Shirwa v. Canada (Minister of Employment and Immigration)5 describes a fact situation where Mr. Justice Denault determined incompetence of counsel to have, in the words of Mr. Justice Cullen, "...decisively affected the outcome of the hearing." I am satisfied that such is not the case on the facts of this matter.
[23] Counsel for the applicant referred me to R. v. Romanowicz6 where the Ontario Court of Appeal considered the issue of representation of accused persons by paralegals in summary conviction proceedings. The Court wrote at paragraph 3:
| The obvious concerns associated with untrained and unregulated paralegals representing accused charged with serious crimes have not moved the province or the federal government to exercise any control over the appearance of paralegals in summary proceedings. These concerns have, however, precipitated the intervention of the Canadian Bar Association and the Criminal Lawyers" Association in this appeal. The intervenors ask the Court to fill the void created by the legislative inactivity and to declare that paralegals cannot represent persons charged with criminal offences, even when those offences are prosecuted by way of summary proceedings. |
The Romanowicz case is clearly distinguishable on the facts in this matter where there is no legislative void; as noted earlier, Parliament has clearly and decisively legislated on the issue of who may represent an applicant before the CRDD.
[24] I conclude that the CRDD, on the facts of this matter, made no reviewable error in denying to grant the applicant a de novo hearing or a newly constituted two-member panel following replacement of the applicant"s immigration consultant by a barrister and solicitor between the first and second hearings before the panel of the CRDD.
[25] Further, I conclude that the CRDD made no reviewable error in determining as it did, based substantially on the evolution of the applicant"s narrative in her PIF and its perception of her sophistication, that the applicant was lacking in trustworthiness and, therefore, in credibility with respect to some key elements of her claim with the result that her application for Convention refugee status was rejected.
[26] Further, I find no reviewable error on the part of the CRDD in rejecting documentary evidence, sworn and unsworn, filed in support of the applicant"s claim, given the CRDD"s conclusion regarding her own credibility.
Conclusion
[27] For the foregoing reasons, this application for judicial review will be dismissed.
Certification of a Question
[28] Counsel for the applicant recommended certification of three questions as follows:
| (1) What obligation if any does the Immigration and Refugee Board have to ensure that a claimant who is not represented by a qualified Barrister and Solicitor has made an effective and informed decision? |
| (2) What if [sic] obligation if any does the Immigration and Refugee Board have to ensure that a refugee claimant being represented by non-legal counsel has effective and competent representation? |
| (3) What obligation if any does the Immigration and Refugee Board have to ensure that any right, statutory or otherwise, waived by a claimant is based on informed consent? |
Counsel for the applicant submits that the proposed questions raise serious question that are of general importance, the responses to which would provide guidance on a generalized basis to the Immigration and Refugee Board.
[29] Counsel for the respondent recommends against certification of the proposed questions.
[30] No question will be certified. The questions proposed on behalf of the applicant are in the nature of "reference" questions that are specifically provided for the subsection 18.3(1) the Federal Court Act . In that they are not framed in a manner that is specific to the facts of this application, they are inappropriate for certification under subsection 83(1) of the Immigration Act. Further, even if they were reworded in a manner more specific to the facts of this application, I am satisfied that they raise only issues on which the jurisprudence arising out of matters before the Immigration and Refugee Board is reasonably well settled.
___________________________
J.F.C.C
Ottawa, Ontario
March 10, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1601-99 |
| STYLE OF CAUSE: NAUREEN FATIMA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, FEBRUARY 28, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
| DATED: March 10, 2000 |
| APPEARANCES: Mr. Mangesh Duggal |
| For the Applicant |
| Mr. Martin Anderson |
| For the Respondent |
| SOLICITORS OF RECORD: Mangesh Duggal |
Barrister and Solicitor
439 University Street
Suite 780
Toronto, Ontario
M5G 1Y8
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000229
Docket: IMM-1601-99
Between:
| NAUREEN FATIMA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
__________________
4 [1995] F.C.J. No. 1063 (Q.L.)(F.C.T.D.).