Vancouver, British Columbia, December 14, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Iraj Ghahremani seeks judicial review of the decision of the officer who assessed his application for a Pre-Removal Risk Assessment (PRRA).
[2] Although Mr. Ghahremani raised three distinct issues in his written representations, his counsel made it clear at the hearing that the Court should only focus on one point. The applicant argues that there was a breach of natural justice resulting from the incompetence of the two immigration consultants who assisted him in this process.
[3] For the reasons explained below, the Court has concluded that the applicant has failed to establish his allegation of incompetence and has not provided satisfactory evidence that there is a reasonable possibility that he suffered a prejudice as a result of the acts and omissions of which he now complains.
[4] The applicant is a 69-year old citizen of Iran, who has lived in North Vancouver since he came to Canada in April 1999. His claim for refugee status was rejected in 2000. He was then represented by legal counsel.
[5] With respect to the PRRA application, he was assisted by an immigration consultant who allegedly misrepresented himself as a lawyer.
[6] Although in January 2005 the said consultant prepared quite detailed submissions describing the alleged risks facing the applicant, Mr. Ghahremani now says that he failed to include two letters which indicate that in 2003 he was suffering from severe depression and was taking Prozac. In the applicant’s view, these letters were important to demonstrate the subjective element of his claim pursuant to s. 96 of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (IRPA). According to him, they would also have helped explain his lack of concentration during the interview he later attended in November 2005.
[7] Finally, according to Mr. Ghahremani, despite his request, his consultant did not accompany him to the interview. Instead Mr. Ghahremani went with a friend. He argues that this friend did not know his file and thus could not provide him appropriate support at the interview.
[8] There is no need to proceed to a functional and pragmatic analysis to determine the standard of review applicable to this issue. In effect, it is clear that if there was a breach of natural justice, the Court should intervene to set aside the decision (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at para. 100; GRK Fasteners v. Leland Industries Inc. 2006 FCA 118 at para. 6).
[9] The law is clear that the incompetence of counsel or of an immigration consultant may, in some particular cases, be so significant as to constitute a breach of natural justice. However, courts generally have exercised much caution as it is too easy to say that one lost because of the fault of one’s counsel or consultant. Thus, to reach such a conclusion, there must be clear and convincing evidence of incompetence on the part of the counsel or consultant and there must be a precise factual foundation to show that prejudice resulted from such incompetence (Sheikh v. Canada [1990] 3 F.C. 238 (C.A.)).
[10] This makes good sense since the Supreme Court of Canada confirmed that a claimant must, even in the context of criminal cases, establish that the impugned acts and omissions of counsel are not simply the result of a reasonable professional judgment, and that a miscarriage of justice resulted therefrom. The Court also noted that the wisdom of hindsight has no place in this assessment (R. v. G.D.B., [2000] 1 S.C.R. 520 at paras. 26-27.)
[11] This Court has also shown reluctance to entertain assertions of incompetence without proper notice of the allegations being given to the former legal counsel and to the law society to which he belongs, or, in the case of an immigration consultant, to the consultant and to the Canadian Society of Immigration Consultants (Shirvan v. Canada (Minister of Citizenship and Immigration), 2005 FC 1509; Bader v. Canada (Minister of Citizenship and Immigration), 2002 FCT 304; Nduwimana v. Canada (Minister of Citizenship and Immigration), 2005 FC 1387; Nunez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 555 (QL).
[12] In this particular case, there is absolutely no evidence or indication that the applicant has advised his former immigration consultants of the allegations of incompetence he raises in this application. There is no indication that he complained to the Law Society of British Columbia in respect of the fact that his first consultant was allegedly passing himself off as a lawyer, or that he contacted the Canadian Society of Immigration Consultants in respect of the matter raised here.
[13] Moreover, the applicant does not explain how the immigration consultant represented himself as a lawyer to him. The applicant is not illiterate. He worked as a legal secretary in Iran for several years before coming to Canada. The letterhead used by his consultant in his communications with the PRRA officer clearly identified him as an “immigration consultant”. In any event, given that immigration consultants are duly authorized to represent clients such as the applicant in respect of PRRA applications, it is not clear how such a misrepresentation would have prejudiced the applicant’s case.
[14] Mr. Ghahremani states that his immigration consultant had discussed with him his reasons for not including the two letters in his submissions. In the consultant’s view, they were not really relevant to the case. Such a decision appears to be in the nature of professional judgment rather any sort of negligent act or omission.
[15] The first letter is dated January 9, 2003. The author is the doctor who had been treating the applicant since 1999. He indicates that the applicant suffered from severe depression and often had occurrences of nightmares. These nightmares “replay disturbing events from the past including flashbacks of occasions before Mr. Ghahremani fled from the Iranian border.” Although he says that the applicant had been taking Prozac for some years, he does not indicate the strength of the medication or what the effect of it could be on the applicant’s ability to function properly in an interview or other such context.
[16] The second letter is dated January 23, 2003. It is from a psychologist who was first contacted by the applicant a few weeks before that date. He states that he believes the applicant is suffering from severe depression and anxiety and therefore requires more comprehensive psychological counselling and treatment. This letter refers to current stressful events in the applicant’s life, more particularly, the health conditions of his Canadian wife and of his father who then lived in Vancouver. It concludes with a recommendation that appropriate agencies cover the cost of further counselling sessions.
[17] In my view, it was not unreasonable for the immigration consultant to conclude that the value of this correspondence was limited.
[18] In his decision, the PRRA officer concluded, after reviewing the whole file and having interviewed the applicant, that there was no more than a mere possibility that Mr. Ghahremani would be at risk if he were to return to Iran. This conclusion was mainly based on the fact that he had failed to produce credible oral or documentary evidence to support his claim that he had seen a member of a rogue Iranian intelligence group leave the house of a murdered Iranian dissident. It was further based on Mr. Ghahremani’s failure to produce credible evidence that the Iranian authorities had issued a warrant for his arrest or convicted him in absentia for spying on the Islamic Republic of Iran. The decision maker also found that the documentary evidence produced, such as the letters allegedly written by the applicant’s ex-wife and daughter who still live in Iran, lacked credibility because they were not dated and lacked details. Moreover, the officer found the behaviour of the security personnel described by the ex-wife was not believable. The officer further noted that, in light of the IRB documentation on file indicating that in absentia judgments are common in Iran and are required to be published in newspapers, the applicant had failed to adduce proper evidence that such judgment had been issued against him.
[19] It is difficult to see how the two medical letters referred to in paragraphs 13 and 14 above could have had any impact on these findings.
[20] At the interview, the applicant advised the immigration officer that he was on medication which affected his concentration. He also said that he had been taking it for several years because of his nightmares of “torture and prison.”
[21] It is clear from the officer’s notes that he considered this information in his assessment. Once again, the Court is not satisfied that there is a reasonable possibility that the letters would have added anything. In fact, the letter of January 9, 2003, could even have hurt the applicant’s credibility as his doctor says that he was taking this medication because of what actually “happened” to him before he left Iran. There is no indication whatsoever that Mr. Ghahremani was ever tortured or imprisoned.
[22] With respect to the fact that the immigration consultant did not accompany the applicant to his interview, once again there is no indication as to why this happened. Surely, the immigration consultant must have given some reason for not accompanying his client. Was it because Mr. Ghahremani did not pay his fee, or because he had another appointment and the applicant did not want to postpone the interview? Without a precise factual background, the Court cannot conclude that there was negligence or incompetence.
[23] Mr. Ghahremani did not go to the interview alone. As mentioned in his affidavit, he was accompanied by a friend. What he does not say in his affidavit is that this friend was another duly registered immigration consultant. The Court finds it disturbing that the applicant failed to mention this fact. His counsel had to acknowledge it at the hearing because the friend’s actual status, including his consultant registration number, is mentioned in the affidavit of the immigration officer. The applicant could not have been unaware of this situation and his affidavit evidence is, in my view, therefore misleading at least in part.
[24] That being said, the Court notes that the applicant now says that this second immigration consultant did not know his file properly and thus could not help him.
[25] The Court has carefully reviewed the questions and answers given by the applicant during this interview. There is no indication in the evidence before me that the applicant has any other relevant information that could have been provided in respect of issues raised by the officer, particularly in respect of the letters of his ex-wife and daughter
[26] In view of the foregoing, the Court finds that the applicant has simply not met his heavy burden of proof in this case.
[27] Neither party submitted any question for certification and the Court is satisfied that this case turns on its own facts. The application is dismissed.
ORDER
THIS COURT ORDERS that the application is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1740-06
STYLE OF CAUSE: IRAJ GHAHREMANI v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: December 12, 2006
REASONS FOR ORDER AND ORDER: GAUTHIER J.
DATED: December 14, 2006
APPEARANCES:
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Mr. Shane Molyneaux
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Ms. Sandra Weafer
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SOLICITORS OF RECORD:
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Elgin, Cannon & Associates Vancouver, BC
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada
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