OTTAWA, Ontario, this 8th day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
& SHAHRZAD MASHAYEKHI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review of the decision of the Immigration Appeal Division ("the IAD") of the Immigration and Refugee Board dated March 7, 2005, dismissing the appeal by Hassan Shirvan and Shahrzad Mashayekhi ("the Applicants") of the loss of their permanent resident status.
[2] The Applicants are Iranian citizens. They have two daughters, Poopak Shirvan and Shaparak Shirvan. At the time of the IAD hearing, Poopak was a 21-year old student at the University of British Columbia, while Shaparak was 29 years old and working as a dentist in Tehran, Iran.
[3] The Applicants and their two daughters arrived in Canada as visitors in 1983 and became permanent residents in October 1985. The Applicants returned to Iran in 1987, but returned occasionally to Canada between 1987 and 1994. The Applicants lived exclusively in Iran from 1994 until November 2003, except for an unspecified one-month period when they were in Canada.
[4] On December 2, 2003, an immigration officer held that the Applicants had failed to comply with residency requirements set out in s. 28 of IRPA and had lost their permanent resident status. The officer found that the Applicants had not complied with the residency obligation of at least 730 days in the five-year period immediately before November 18, 2003, and that the case did not involve humanitarian and compassionate ("H & C") considerations that were sufficiently compelling to overcome their breach of the residency obligation.
[5] The IAD upheld the immigration officer's decision in its March 7, 2005 decision. The Applicants seek judicial review of this IAD decision.
[6] The Applicants appealed the loss of their permanent resident status before the IAD on H & C grounds alone. They sought discretionary relief pursuant to paragraph 67(1)(c) of the Act which states:
| (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
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(1) Il est fait droit à l'appel sur preuve qu'au moment où il en est disposé :
c) sauf dans le cas de l'appel du ministre, il y a -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- des motifs d'ordre humanitaire justifiant, vu les autres circonstances de l'affaire, la prise de mesures spéciales.
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[7] The IAD held that the Applicants voluntarily abandoned Canada and that there were not sufficient H & C considerations to warrant special relief. The IAD noted that there are no minor children directly affected by the decision.
[8] The IAD noted that in November 2003, the Applicants each completed a questionnaire and each indicated that he/she had accumulated zero days towards the 730 day residency obligation for the five-year period immediately before November 18, 2003. This number was not disputed by the Applicants.
[9] The IAD noted that the Applicants' youngest daughter Poopak Shirvan, born July 26, 1983, is now studying at the University of British Columbia and according to her father, is a permanent resident of Canada. Mr. Shirvan also testified to wanting to retire in Vancouver, to having an interest in establishing business enterprises in Canada, and to having foreign assets of $1,500,000 CDN. The evidence also demonstrates that the Applicants have a house in North Vancouver, a car, a bank account, and support from the local Iranian-Canadian community.
[10] The IAD found both witnesses to be credible but held that the Applicants voluntarily abandoned Canada. The IAD found little evidence of any enduring interest on the part of the Applicants in maintaining a connection with Canada before 2003.
[11] The IAD held that considering the best interests of the child there were insufficient H & C grounds to grant special relief.
[12] The Applicants make two submissions.
[13] The Applicants submit that the IAD erred in law by failing to consider the best interests of the Applicants' daughter Poopak Shirvan when refusing to grant an H & C exemption from the residency requirements.
[14] The Applicants submit that their dependant child, Poopak Shirvan is directly affected by the determination of the Applicants' residency status. Poopak is a permanent Canadian resident and received financial support from her parents. The Applicants submit that Poopak abandoned her studies in Iran in order to enter a new program in Canada. Poopak has been continuously enrolled at the University of British Columbia since September 2004. The Applicants submit that if the family is to stay together they must stay in Canada or Poopak must return to Iran. This latter choice would be against Poopak's best interests. The Applicants submit that this important H & C consideration was not even considered by the IAD. I would add that no evidence was generated that Poopak would have to return to Iran. I believe it would be her choice.
[15] The Applicants submit that they suffered a miscarriage of justice by way of the representation they received from their prior counsel.
[16] The Applicants very strongly submit that their prior counsel, an immigration consultant named Mr. Hadad, was incompetent and that but for Mr. Hadad's unprofessional errors there is a reasonable chance the Applicants would have received a different result in their appeal.
[17] The Applicants submit that their immigration consultant failed to assist the Applicants in addressing the H & C grounds that were the sole ground of appeal at the IAD hearing. The Applicants submit that their consultant did not even understand the term 'humanitarian' in the legal sense, and that he did not understand his role as counsel.
[18] The Applicants submit that Mr. Hadad failed to lead any evidence for the Applicants regarding H & C grounds, which counsel for the Minister stated for the record was distressing. The Presiding Member of the IAD expressed concern regarding the consultant's direct examination. The Presiding Member and the Minister's counsel questioned the Applicants and then provided Mr. Hadad to redirect, which he declined to exercise.
[19] The Applicants further submit that Mr. Hadad lied to the IAD when he claimed that he was representing the Applicants for free. In fact, Mr. Hadad was acting for a fee.
[20] The Applicants recognize that the test for incompetent counsel is very high. They submit that the party making the allegation of incompetence must show substantial prejudice to the individual, that prejudice must flow from the actions or inaction of the incompetent counsel, and that the prejudice must bring about a miscarriage of justice (R. v. G.D.B. [2000] 1 S.C.R. 520; Strickland v. Washington, 446 U.S. 668 (1984), per O'Connor J.; Shirwa v. Canada (M.C.I.) [1994] 2 F.C. 51 (T.D.); Sheikh v. Canada (M.C.I.) [1990] 3 F.C. 238 (C.A.); Tchiegang v. Canada (M.C.I.), 2003 FCT 249; Robles v. Canada (M.C.I.), 2003 FCT 374). It must be shown that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would be different (Olia v. Canada(M.C.I.) 2005 FC 315).
[21] The Applicants submit that the Applicants suffered prejudice and that a miscarriage of justice occurred.
[22] The Respondent submits that the IAD did not err in failing to examine the best interests of the child. The Respondent submits that the Applicants did not present this issue before the IAD, and that the IAD is not obligated to examine the best interests of the child where no evidence was presented by the Applicants (Owusu v. Canada (MCI), 2004 FCA 38 at para. 5; Nguyen v. Canada (MCI), 2005 FC 236 at paras. 12-15).
[23] In addition, the Applicants' daughter was 21 years old at the time of the IAD hearing. A child under The Convention on the Rights of the Child is less than 18 years old, and a person reaches the age of majority in British Columbia at 19. The Respondent notes that the Federal Court has decided that an immigration officer deciding an H & C application does not err by failing to assess the circumstances of a person 19 years of age or older as a "best interests of the child" issue (Raudales v. Canada (MCI), 2003 FCT 385 at paras. 12-14). The Respondent submits that it was not unreasonable for Mr. Hadad to have decided that the Applicant's daughter's situation could not raise best interests of the child considerations.
[24] The Respondent initially submitted that the Applicants failed to take the preliminary steps necessary for the Court to entertain the allegation of incompetence causing a miscarriage of justice. The Respondent initially submitted that the Court should not examine allegations of incompetence causing a miscarriage of justice unless that former counsel was notified of the allegations and invited to reply. However, both the Respondent and the Applicants have since written to Mr. Hadad or to the consultant's association and explained the nature of this proceeding.
[25] The Respondent submits that the Court should not intervene based on the alleged incompetence of a representative except for in rare cases where there is clear evidence that the representative's incompetence decisively affected the outcome of the hearing (Huynh v. Canada (MEI), [1993] F.C.J. No. 642 (T.D.) at para. 23; Fatima v. Canada (MCI), [2000] F.C.J. No. 308 (T.D.) at paras. 21-22; Hallett v. Canada, 2004 FCA 104 at paras. 20-21).
[26] The Respondent submits that the test to show ineffective assistance contains both "performance" and "prejudice" components. The Applicants must show that Mr. Hadad's performance fell below the range of reasonable professional assistance and that the Applicants were prejudiced in that Mr. Hadad's incompetence resulted in a miscarriage of justice (R. v. G.D. B., [2000] 1 S.C.R. 520 at paras. 26-28; Sheikh v. Canada (MEI), [1990] 3 F.C. 238 (C.A.) at para. 15; Robles v. Canada (MCI) 2003 FCT 374 at paras. 31-35). If the Applicants cannot meet the prejudice branch of the test, then the Court does not need to examine whether Mr. Hadad's performance amounted to incompetence (R. v. G.D.B., [2000] 1 S.C.R. 520 at para. 29).
[27] The Respondent submits that the Applicants do not meet the "prejudice" component of the test because the Applicants fail to establish that Mr. Hadad's incompetence, if any, led to a miscarriage of justice.
[28] The Respondent submits that to show a miscarriage of justice, the Applicants must show a "reasonable probability" that but for Mr. Hadad's alleged incompetence, the result of the IAD hearing would have been different. A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome of the decision" and "lies somewhere between a mere possibility and a likelihood" (R. v. G.D. B., [2000] 1 S.C.R. 520 at para. 28; R. v. Dunbar, 2003 BCCA 667 at para. 26).
[29] The Respondent submits that the Applicants have not met this requirement. The Respondent notes that the basis of the IAD's decision was its finding that the Applicants voluntarily abandoned Canada. The Applicants have not shown that any act or omission of Mr. Hadad's would change this key conclusion.
[30] The Respondent also submits that the Applicants have not established that the hearing was procedurally unfair. Mr. Hadad's alleged incompetence on direct examination does not, according to the Respondent, lead to a finding of a miscarriage of justice. Both the Presiding Member and Minister's counsel questioned the Applicants on all issues that reasonably might be expected to be relevant to a claim based on H & C grounds. The questions related to the Applicants' establishment in Canada, the presence of relatives in Canada, the Applicants' plans for the future, the past and present circumstances of the Applicants and their daughters, and the reasons why the Applicants returned to Iran in 1986 and did not return to Canada until 2003. All the potentially relevant issues regarding the Applicants' claim were canvassed during the IAD hearing. The Respondent submits that even if Mr. Hadad's counsel was incompetent, the Applicants were not prevented from presenting their case (Hundal v. Canada(MCI), 2003 FC 884 at paras. 8-10; Shahib v. Canada (MCI), 2005 FC 1250 at paras. 20-21).
[31] Before examining allegations of incompetence, the Court must first determine whether the Applicants have met their preliminary burden of giving notice to Mr. Hadad of the allegations. Counsel for the Applicants wrote to the Canadian Society of Immigration Consultants in a letter dated August 15, 2005, in which counsel complained of Mr. Hadad's treatment of the Applicants and others, and requested that the CSIC immediately prohibit Mr. Hadad from practicing as an immigration consultant.
[32] The letter was dated August 15, 2005, but the Applicants commenced this action in March. This does not pose a problem for the Applicants. The Courts have required a letter to a governing body as a form of corroborating evidence of allegations of incompetence. Courts do not wish to entertain assertions of incompetence without some supporting evidence (Nunez v. Canada (MCI), [2000] F.C.J. No. 555 (T.D.) at para. 19; Bader v. Canada (MCI), 2002 FCT 304 at para. 8). The letter provides sufficient corroborating evidence, and provided sufficient notice of the allegation to the Applicants' former counsel.
In addition, the Respondent wrote directly to Mr. Hadad in a letter dated October 12, 2005. This letter would have provided Mr. Hadad with sufficient time to consider responding to the allegations made by the plaintiffs in this matter.
[33] The Court is therefore able to proceed to examine the Applicants' allegations of Mr. Hadad's incompetence.
[34] In my opinion the Applicants have failed to show that there was a reasonable probability that but for Mr. Hadad's incompetence, the result of the IAD hearing would have been different (Strickland v. Washington, 466 U.S. 668 (1984), adopted by the Supreme Court in R. v. G.D.B. [2000] 1 S.C.R. 520 at 26, and by the Federal Court of Appeal in Sheikh v. Canada (MEI), [1990] 3 F.C. 238 (C.A.) at para. 15).
[35] A reading of the IAD Transcript demonstrates that Mr. Hadad was unfamiliar with the IAD hearing procedure. However, the Applicants were still able to present their case. The Applicants' submissions did not displace the IAD's finding that the Applicants voluntarily abandoned Canada, nor did the Applicants provide any relevant H & C grounds for the IAD to consider. The only major ground which the Applicants claim Mr. Hadad should have raised was a best interests of the child consideration. Since I find in the reasons that follow that the best interests of the child argument would not have altered the result of the hearing, the Applicants have failed to demonstrate that the result of the hearing would have been different but for Mr. Hadad's alleged incompetence.
[36] Since I am satisfied the Applicants have not shown prejudice, the Court will not examine Mr. Hadad's performance to determine whether it amounted to incompetence (R. v. G.D.B., [2000] 1 S.C.R. 520 at para. 29). The Canadian Society of Immigration Consultants has received the Applicants' complaint against Mr. Hadad, and is an appropriate body to determine whether Mr. Hadad's conduct fell below the range of reasonable assistance. This may provide the Applicants alternate relief against their former representative (Huynh v. Canada (MEI), [1993] F.C.J. No. 642 (T.D.) at para. 23).
[37] It is clear from the facts of this case that the IAD did not err in failing to consider the best interests of the child. Poopak Shirvan was born July 26, 1983. She was therefore of 19 years of age or older both at the time of the initial determination made by the immigration officer in December 2003 and at the time of the IAD hearing. The IAD did not err in its decision to not consider the best interests of the Applicants' daughter (Raudales v. Canada (MCI), 2003 FCT 385 at paras. 12-14). As I have stated, Poopak Shirvan does not necessarily have to return to Iran.
ORDER
For the reasons above stated, the application for judicial review is denied. No question was submitted for certification.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1768-05
STYLE OF CAUSE: HASSAN SHIRVAN AND SHAHRZAD MASHAYEKHI
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: October 27, 2005
REASONS FOR ORDER: TEITELBAUM J.
APPEARANCES:
D. Blake Hobson FOR APPLICANTS
SOLICITORS OF RECORD:
Hobson & Company FOR APPLICANTS
Barristers & Solicitors
Vancouver, B.C.
John H. Sims, Q.C. FOR RESPONDENT
Attorney General of Canada
Vancouver, B.C.