Ottawa, Ontario, December 2, 2005
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
ANGEL ESTABAN GARCIA CARBAJAL
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
HARRINGTON J.
[1] Several years ago, Argentina Torres Ramos and her husband, Angel Esteban Garcia Carbajal, unsuccessfully applied for refugee status in Canada. Their claim was based on an allegation of extortion by a renegade soldier in Honduras. The father of Argentina Torres Ramos had refused to pay the soldier, and he was killed. The same thing happened to her cousin.
[2] The applicants claimed refugee status in Montréal on August 11, 2000. The said they crossed the border between Canada and the United States on July 29, 2000. They did not report to an Immigration officer after having crossed the border. The applicants stated they left Honduras on July 1, 2000 and transited through Guatemala and Mexico before arriving in the United States. They did not claim safe haven in any of these countries.
[3] On March 22, 2001, the Refugee Protection Division of the Immigration and Refugee Board determined that the applicants were not Convention refugees. The applicants then applied for the “post-determination refugee claimants in Canada class” program but were transferred to the “Pre-Removal Risk Assessment” (PRRA) program. This application was also dismissed. This negative decision of the PRRA officer is now the subject of an application for judicial review before this Court.
[4] At first sight, it is important to note that the PRRA officer’s decision seems perfectly reasonable. He determined that the applicants did not adduce personalized evidence to support their fears of persecution, and considering the documentation concerning Honduras, they did not meet the definition of refugee, because there were no risks if they returned to their country.
[5] The applicants submitted two arguments to try to convince this Court to allow their application for judicial review: the first argument is based on the fact that the applicants had no oral hearing, and the second argument is based on the fact that their immigration counsellor omitted to submit a document fundamental to their case to the PRRA officer.
[6] The PRRA officer did not question the applicants’ credibility under paragraph 113(b) of the Immigration and Refugee Protection Act and section 167 of the Immigration and Refugee Protection Regulations. The PRRA officer was justified in proceeding without an oral hearing and relying solely on the documentary evidence.
[7] The key document to which the applicants referred was a letter from the applicant’s mother, Angel Esteban Garcia Carbajal, dated September 22, 2004. This letter was most vague and only repeated the fact that the mother was worried they would be killed if they came back to Honduras. The mother alleged that she received a call two months ago for her son, but the person calling did not want to identify himself. A little later, there was another similar call. The mother underlined the fact that the same thing happened before the applicant’s cousin was killed. In addition, a friend of this cousin stated he had been questioned in a park by two men who wanted to know where the mother’s son was. Finally, the mother stated [translation] “I prefer that you be far from me but safe and sound”. This letter did not refer to an incident and did not clearly and concretely specify that the applicants would be in danger if they were to return to Honduras.
[8] The applicants received help from an immigration counsellor who was not a lawyer. The applicants gave the letter in question to the counsellor, but he did not file it. It is possible the counsellor considered that this letter was too vague and self-serving, such that it would hinder a successful application. In any event, no information was submitted to explain why this specific document had not been filed in spite of the fact several other documents were filed.
[9] This is a case in which the strategy and judgement of an immigration counsellor are called into question. Usually, the Court does not intervene in such a case. If an applicant, personally or with the help of an agent, whether or not he is a lawyer, does not invoke the best argument possible, it is unfortunate, but the Court should not intervene. In Cove v. Canada (MCI) 2001 FCT 266, [2001] F.C.J. No. 482 (QL), the situation of an immigration counsellor was specifically mentioned at paragraph 5:
The applicant is fully entitled to entrust her immigration problems to an immigration consultant rather than to a member of the immigration bar. It may be that in doing so she saved some fees, but perhaps not. She is also fully entitled to take her immigration consultant’s advice on the steps to be taken in pursuing her claim. But the applicant runs into difficulty when she suggests that she ought to receive a dispensation from the rules because she was not represented by a lawyer and received bad advice.
[10] As mentioned in Cove, above, there are however exceptions to this rule. Pelletier J. cited Rothstein J. at paragraph 7:
In Drummond v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 477, (1996), 112 F.T.R. 33, Rothstein J. (as he then was) identified an exception to the principle enunciated by Reed J.:
However, in extraordinary cases, competency of counsel may give rise to a natural justice issue. In such cases, the facts must be specific and clearly proven; see: Sheikh v. Canada (1990), 71 D.L.R. (4th) 604 (F.C.A.); Huynh v. M.E.I. (1993), 21 Imm. L.R. (2d) 18 (F.C.T.D.); and Shirwa v. M.E.I. (1993), 23 Imm. L.R. (2d) 123 (F.C.T.D.).
[11] This is not a situation in which the counsellor, a lawyer or not, did not fulfill his administrative obligations, such as reporting a change of address. As I stated in Medawatte v. Canada (Minister for Public Safety and Emergency Preparedness) 2005 FC 1374, [2005] F.C.J. No. 1672 (QL) at paragraph 10:
There is a great deal of jurisprudence in these matters to the effect that a party must suffer the consequences of his or her own counsel. I subscribe to that view. If a case has been poorly prepared; if relevant jurisprudence was not brought to the attention of the Court in a civil case; if there was a bad choice in witness selection, the consequences fall on that party. Is there a difference, however, between malfeasance and non-feasance? In this case, it is not a question of a lawyer doing something poorly. He did not do something he should have done. In Andreoli v. Canada (Minister of Citizenship and Immigration) 2004 FC 1111; [2004] F.C.J. No. 1349, (QL), the applicants' refugee claim was ordered abandoned because the interpreter in their lawyer's office failed to provide the authorities with a change of address. I found in that case the board in deciding that the applicants were the authors of their own misfortune was punishing them for the carelessness of a third party. I found that to dismiss that application would be to disregard the principles of natural justice. I said: . . .
This is not a case where counsel poorly pleaded their case on the merits. Rather, it involved a matter that had never been heard because of an administrative error which occurred at counsel's office.
[12] In addition, one must not lose sight of the fact that, in spite of the result of this application for judicial review, the applicants are entitled to make another PRRA application under section 165 of the Immigration and Refugee Protection Regulations.
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165. A person whose application for protection was rejected and who has remained in Canada since being given notification under section 160 may make another application. Written submissions, if any, must accompany the application. For greater certainty, the application does not result in a stay of the removal order. |
165. La personne dont la demande de protection a été rejetée et qui est demeurée au Canada après la délivrance de l’avis visé à l’article 160 peut présenter une autre demande de protection. Les observations écrites, le cas échéant, doivent accompagner la demande. Il est entendu que la demande n’opère pas sursis de la mesure de renvoi. |
[13] The applicants’ application is solely based on the fact that this letter, which was not filed, would have influenced the conclusion reached by the PRRA officer. However, on the basis of the evidence adduced before this Court, and considering this letter is vague and does not mention any concrete incident to the effect that the applicants actually are at risk, this case should not be submitted to another PRRA officer for rehearing. As mentioned above, the PRRA officer’s decision is reasonable. He considered the circumstances in Honduras. It is also important to underline the fact he was of the opinion that considerable efforts were made to check on what the renegade soldier actually did.
ORDER
1. The application for judicial review is dismissed.
2. There is no question to be certified in this case.
“Sean Harrington”
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2933-05
STYLE OF CAUSE: ARGENTINA TORRES RAMOS AND ANGEL ESTEBAN GARCIA CARBAJAL v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 24, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Harrington
DATED: December 1, 2005
APPEARANCES:
Mr. Claude Brodeur FOR THE PLAINTIFFS
Mr. Daniel Latulippe FOR THE DEFENDANT
SOLICITORS OF RECORD:
Beauchesne Trempe & Partners FOR THE PLAINTIFFS
Montréal, Quebec
John H. Sims, Q.C. FOR THE DEFENDANT
Deputy Attorney General for Canada
Montréal, Quebec