PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
DRENY AMPARO GOMEZ BEDOYA AND JOSHUA MARANTE
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Dreny Amparo Gomez Bedoya (the principal applicant) and her son Joshua Marante (the minor applicant) are citizens of Columbia and, in the case of the minor claimant, also of the United States. They have applied for judicial review of a decision by the Immigration and Refugee Board’s Convention Refugee Determination Division (the Board), dated July 27, 2006. The Board found they were neither Convention refugees nor persons in need of protection, pursuant to s. 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
FACTS
[2] Ms. Bedoya claims that on October 24, 2000, an unidentified man sought admission to the geriatric home she managed in the city of Cali. When she said she could not assist him, he became very upset and aggressive. Her former boyfriend, Jorge Antonio Torres Cortes, then threatened to call the police unless the man left. The man did leave, but said he would put a bomb in the house and that Mr. Cortes would pay for his actions.
[3] On February 27, 2001, Mr. Cortes disappeared. This was reported in a newspaper article dated June 19, 2001, filed as an exhibit to Ms. Bedoya’s affidavit before the Board. Subsequently, on August 23, 2001, Ms. Bedoya received a phone call from a person identifying himself as a member of the Revolutionary Armed Forces of Columbia – People’s Army (the FARC). He told her to stop looking for Mr. Cortes. The FARC had made him disappear, because of the incident in the geriatric home ten months earlier. The man also told Ms. Bedoya to close her business. She did, on September 15, 2001.
[4] Ms. Bedoya tried to seek state protection on several occasions. In November 2000, she went to the National General Prosecutor’s Office to report the initial incident in the geriatric home. Then, on October 11, 2001, she made a second complaint after receiving the phone call from the FARC member. The same day, she received a letter outlining the protection measures of the Prosecutor’s Office. This letter was also filed as an exhibit to her affidavit. On October 19, 2001, she made a Petition of Right to the Social Solidarity Network of Colombia for assistance. The letter she received in reply was also filed before the Board.
[5] From September 2001 to December 2003, Ms. Bedoya worked on her own and visited the U.S. for extended periods. On December 14, 2002, she gave birth to her son Joshua Marante while in the U.S. When returning to Columbia during those years, she received no threat and apparently felt secure.
[6] In December 2003, she decided to start a new life and opened an aesthetics store. Shortly thereafter, on February 27, 2004, she was again threatened. Ms. Bedoya’s niece, who worked at the store, witnessed the incident. She confirmed the story in an affidavit. Two armed men put a gun to Ms. Bedoya’s head. They told her to close her business and leave the country, or they would kill her and all of her family members. The day after, Ms. Bedoya found a note from the FARC under the door to her house. It instructed her to run away to save her life, adding that “tomorrow may be too late”. Again, Ms. Bedoya’s niece saw the note and referred to it in her affidavit.
[7] Ms. Bedoya then made a new complaint to the National General Prosecutor’s Office, but received no response. Afraid for her life, she asked a friend to bring her infant son to the U.S. and left her two older children at a friend’s house. Again, Ms. Bedoya’s friend has confirmed this in an affidavit, to which is attached a copy of her visa and of the entry seal to the U.S. Ms. Bedoya flew to the U.S. a few days later, where she joined her son and lived with his grandmother.
[8] On October 19, 2004, both applicants came to Canada and sought refugee protection. Ms. Bedoya says she did not apply for refugee status in the U.S. because one of her relatives living there told her the acceptance rate for Columbian refugee claimants was very low, and that she would be detained and separated from her son while her claim was examined.
THE DECISION UNDER REVIEW
[9] The Board found Ms. Bedoya was not credible or trustworthy on several key aspects of her story. Its reasons can be summarized as follows:
· Ms. Bedoya’s claim that a senior member of the FARC guerrillas would seek admission to her geriatric home in a government-controlled area, whose management he did not know or trust, was not credible;
· Her claim that her boyfriend’s disappearance was related to this alleged incident was not credible either, since it occurred six months later and since the target of the guerrillas’ anger was supposed to be Ms. Bedoya herself;
· The threats Ms. Bedoya allegedly received about closing her business did not occur until ten months after the alleged triggering incident;
· Ms. Bedoya continued to live and work in Columbia from the time of the alleged incident in 2000 up until 2004 without being harmed by anyone. She also frequently travelled back and forth to the U.S. during this period;
· Ms. Bedoya could not provide any reason why the FARC guerrillas would return and demand she close her new business, a beauty shop, when it opened in 2003;
· The FARC guerrillas did not kidnap or kill her at any point, despite allegedly threatening her at gunpoint with a demand that she leave the country;
· The claim that FARC guerrillas followed up their threat at gunpoint with another message by pamphlet reminding her to leave the country was not credible;
· Ms. Bedoya indicated in her PIF that her mother and children were still in Colombia, but did not testify that they were in hiding until the hearing. The Board did not find her explanation that they remained “mostly indoors” credible;
· There is no evidence that Ms. Bedoya’s two children in Columbia have been traced or harmed, despite the FARC’s alleged skill at tracking Ms. Bedoya’s long-term movements;
· Ms. Bedoya’s explanation for not seeking refugee status in the U.S. was not credible. Her son is an American citizen. She lived in the U.S. for several months without any incidents to support a fear of racism, as per her relative’s warnings about the success rate of Columbian refugee claims. The Board found that if Ms. Bedoya felt genuinely threatened, she would have sought refuge at the first opportunity;
· No evidence was provided to support the refugee claim of Ms. Bedoya’s son, who is an American citizen entitled to reside outside of Colombia.
ISSUES
[10] This application for judicial review raises essentially two issues:
1. Did the Board err in determining that the applicants’ claim, evidence and testimony were not credible?
2. Were the applicants denied natural justice and fairness through the incompetence of their counsel before the Board?
ANALYSIS
[11] There is no dispute about the appropriate standard of review in this case. Findings of fact and credibility are to be reviewed on the most deferential standard of patent unreasonableness, and should therefore be interfered with only if made in a perverse or capricious manner or without regard for the material before the Board: Aguebor v. Canada (Minister of Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.). As oftentimes repeated by this Court and the Federal Court of Appeal, “…the Board is entitled to conclude that an applicant is not credible because of implausibility in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in ‘clear and unmistakable terms’”: RKL v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 9.
[12] As for the alleged incompetence of counsel representing the applicants before the Board, the case law is replete with statements to the effect that a finding of incompetence by counsel severe enough to breach natural justice will be a rare and unusual occurrence. When such a breach has been established, however, a pragmatic and functional analysis to determine the applicable standard of review will not be required, as there is no need to assess the proper degree of deference with respect to procedural fairness: Canada (Attorney General) v. Sketchley, 2005 FCA 404.
[13] Turning first to the Board’s credibility findings, I would normally be extremely hesitant to intervene since they appear to be cogent and based on the evidence. Without doubt, there were some inconsistencies and implausibilities in Ms. Bedoya’s story. The hearing transcript and the record show she lived with her children for more than two years without any fear, and travelled freely and extensively back and forth to the U.S. for reasons unrelated to any feeling of threat. The fact that she did not claim refugee status in the U.S. was also relevant to gauging her subjective fear. In a nutshell, I believe the Board’s reasoning and inferences were grounded in the evidence before it and were neither capricious nor perverse.
[14] I am nevertheless of the view that the Board erred by disregarding significant pieces of corroborating evidence. When reviewing an applicant’s file and testimony to assess her credibility, it is not enough to focus only on certain parts. While courts should no doubt refrain from reading an administrative tribunal’s reasons hypercritically, we must at least ensure all the relevant evidence has been properly considered. When critical aspects of an applicant’s file are not taken into consideration without any explanation, especially when they tend to contradict the tribunal’s findings, s. 18.1(4)(d) of the Federal Courts Act must find application. As Justice John Evans stated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17:
…the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact.
[15] In the present case, there is not a word about the affidavit sworn by Ms. Bedoya’s niece, who confirmed not only that two armed men came to the beauty salon and threatened her aunt, but also that a flyer was slid under the door of her house telling the family members to flee for their lives. Similarly, not a word is said about the affidavit of Ms. Bedoya’s friend who attested that she travelled to Miami with Ms. Bedoya’s minor son, all at Ms. Bedoya’s expense. Also entered into evidence was a newspaper article showing a picture of Mr. Cortes, along with others, with the caption that he disappeared on February 27, 2001; yet, the Board did not see fit to even mention that exhibit.
[16] It is not as if these pieces of evidence were of marginal relevance or simply buttressed the Board’s conclusion. Quite to the contrary, they were central to the applicants’ claim and bolstered the strength of their story. If the Board was of the view that they were unreliable, for one reason or another, or that they did not offset what it perceived to be fatal flaws in Ms. Bedoya’s allegations, it had a duty to explain why and to give reasons. Considering the impact of the Board’s decision on refugee claimants’ lives, one should never be left to speculate as to why a prima facie corroborating and reliable piece of evidence has been left out. For that reason, I am therefore prepared to accept Ms. Bedoya’s submission that the Board’s credibility finding was patently unreasonable.
[17] On the other hand, the allegations of incompetence against Ms. Bedoya’s first lawyer and of an ensuing breach of natural justice must be rejected. An allegation of professional misconduct could be made, since there is evidence in the record of a letter referring the matter to the Barreau du Québec. Indeed, counsel for the Minister acknowledged Ms. Bedoya’s first lawyer failed her in some respects. However, I have not been convinced that such failures amount to a breach of natural justice.
[18] This Court has made it clear that a party should not be allowed to raise the incompetence of his lawyer unless that lawyer has had an opportunity to explain his conduct, or without evidence that the matter has been referred to the governing body for investigation: see, for example, Nunez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 555 (F.C.T.D.); Sathasivam v. Canada (Minister of Citizenship and Immigration), 2004 FC 438; Kizil v. Canada (Minister of Citizenship and Immigration), 2004 FC 137; Gonzalez v. Canada (Minister of Citizenship and Immigration), 2006 FC 1274. As mentioned, this requirement has been met in the present instance.
[19] The standard for this Court to conclude that the lawyer’s incompetence was so severe as to amount to a breach of natural justice is very high, as we can see from the following extract of Shirwa v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R.(2d) 123 (F.C.T.D.) at paragraphs 11 and 12:
In a situation where through no fault of the applicant the effect of counsel’s misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred …
In other circumstances where a hearing does occur, the decision can only be reviewed in “extraordinary circumstances”, where there is sufficient evidence to establish the “exact dimensions of the problem” and where the review is based on a “precise factual foundation.” These latter limitations are necessary, in my opinion, to heed the concerns expressed by Justices MacGuigan and Rothstein that general dissatisfaction with the quality of representation freely chosen by the applicant should not provide grounds for judicial review of a negative decision. However, where the incompetence or negligence of the applicant’s representative is sufficiently specific and clearly supported by the evidence such negligence or incompetence is inherently prejudicial to the applicant and will warrant overturning the decision, notwithstanding the lack of bad faith or absence of a failure to do anything on the part of the tribunal.
[20] In addition, the applicants must show that there is a reasonable probability that but for this alleged incompetence, the result of the original hearing would have been different: Shirvan v. Canada (Minister of Citizenship and Immigration), 2005 FC 1509; Jeffrey v. Canada (Minister of Citizenship and Immigration), 2006 FC 605; Olia v. Canada (Minister of Citizenship and Immigration), 2005 FC 315.
[21] The applicants allege their former counsel did not properly assist them with their PIF. However, they do not describe how this lack of assistance resulted in any critical evidence missing from the PIF. The only example is that Ms. Bedoya did not state her children in Colombia were “in hiding” in her PIF. Yet, the credibility finding against her was not based on the fact she did not explain her children were “in hiding”. Rather, the Board did not find her explanation of her children’s whereabouts satisfactory. As for the fact that Ms. Bedoya’s PIF was written in “broken English” because she did not have the assistance of a Spanish interpreter, this is not a sufficient argument in itself, absent proof that the poor quality of her English prevented her from fully setting out her story. I note in passing that Ms. Bedoya was granted an extension of time to file her PIF, at the request of her former counsel, so an interpreter could help her. I also note that she was provided with an interpreter at the Board hearing.
[22] It was also suggested that evidence could have been filed to substantiate the allegations of discriminatory treatment against refugee claimants in the U.S. Again, I do not find this argument persuasive. While it is true the Safe Third Agreement with the U.S. only entered into force a few months after the applicants entered Canada, the fact remains that the U.S. has ratified the United Nations Convention Relating to the Status of Refugees, and there is no reason to believe it does not abide by its obligations. The fact that the rate of successful applications may be lower there than in Canada does not justify the applicants’ failure to seek refugee protection in the U.S. The Board could certainly take that factor into consideration in assessing Mrs. Bedoya’s subjective fear: Breucop v. Canada (Minister of Citizenship and Immigration), 2004 FC 117; Pissareva v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2001 (F.C.T.D.).
[23] The last piece of allegedly missing evidence was Ms. Bedoya’s psychiatric evaluation. The evaluation, made more than a year before her Board hearing, contains evidence that could be equally helpful or harmful to Ms. Bedoya. In any event, such evidence would not have been determinative to her claim. In light of all the circumstances of this particular case, its non-inclusion does not rise to the level of a breach of natural justice. Indeed, the applicants’ former counsel may have made a considered strategic decision to omit the evaluation, in light of its contents. I note as well that Ms. Bedoya was allowed to give evidence on the evaluation at her Board hearing, and was given the opportunity to file the document after the hearing. She declined that offer and asked instead that the Board make its decision as quickly as possible.
[24] All things considered, I find the allegations of incompetence quite similar to those considered by Justice Marshall Rothstein in Huynh v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 11 (F.C.T.D.). In that case, counsel had allegedly failed to tell the applicant’s entire story, failed to review the PIF with the applicant prior to the hearing and completed the form during the hearing, did not submit all available information on country conditions, did not object to problematic interpretation, was not familiar with the refugee process and did not advise the applicant about the possibility of judicial review. Despite all these shortcomings, Justice Rothstein refused to overturn the Board’s decision as it was not one of those extraordinary cases where counsel’s failures amounted to a breach of natural justice. As a result, I would reject the applicants’ submissions on this second ground for judicial review.
CONCLUSION
[25] On the basis of the above, the application is allowed, the Board decision is set aside and the matter is referred back to a different panel of the Board for redetermination.
[26] Counsel for the applicants submitted two questions for certification, which can be framed as follows:
1. Does the Court require that a counsel accused of incompetence so severe as to give rise to a breach of natural justice be added as a mis-en-cause in an immigration judicial review proceeding?
2. If a complaint of incompetence has been laid against such a lawyer with their law society, must a decision upholding the complaint be added to the record before the Court will find that incompetence giving rise to a breach of natural justice has occurred?
[27] I agree with the respondent that these questions should not be certified. First, they would not be determinative of the appeal, as the decision does not rest on a breach of natural justice resulting from the first lawyer’s alleged incompetence. Second, I believe the law is well settled on the requirements that must be met for this Court to consider a lawyer’s failures and, eventually, to be found of sufficient import to justify quashing a Board decision.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed, the Board decision is set aside and the matter is referred back to a different panel of the Board for redetermination.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4646-06
STYLE OF CAUSE: Dreny Amparo Gomez Bedoya and Joshua Marante
v.
Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
AND ORDER BY: JUSTICE DE MONTIGNY
APPEARANCES:
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Stephen Goldman |
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Alysia Davies |
SOLICITORS OF RECORD:
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Dan M. Bohbot 15 Fournier Blvd., Suite 202 Gatineau, Quebec J8X 3P1
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |