Date: 20020118
Docket: IMM-1369-01
Neutral citation: 2002 FCT 50
BETWEEN:
JOZSEF PETROVICS, RITA PETROVICSNE KALOTAI,
PETRA PETROVICS, PATRICIA PETROVICS
Applicants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
[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 applicants not to be Convention refugees within the meaning given to that expression in subsection 2(1) of the Immigration Act[1]. The decision of the CRDD is dated the 11th of December, 2000.
[2] The applicants are citizens of Hungary and of Roma ethnicity. They are husband and wife and their two daughters. At the opening of their hearing before the CRDD, Jozsef Petrovics (the "principal applicant"), the husband and father, was designated as representative for his two daughters pursuant to subsection 69(4) of the Immigration Act, which reads as follows:
(4) Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings.
(4) La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause.
[3] At the time of the designation, no question was raised either by the members of the CRDD panel or by counsel, regarding the competence of the principal applicant to act as the designated representative of his children, and there is nothing in the record of the hearing that would indicate that any form of explanation was given to the principal applicant as to the responsibilities of a designated representative.
[4] The applicants' hearing before the CRDD took place at two sittings, somewhat more than two months apart. The principal applicant was the sole individual to testify on behalf of the applicants.
[5] Apparently following the first sitting in respect of the applicants' claims, counsel for the applicants had some concerns regarding the principal applicant's testimony. Counsel arranged for the principal applicant to be assessed psychologically. The report of the psychologist concluded in the following terms:
Mr. Jozsef Petrovics is a mildly mentally retarded person with generally limited resources for intellectually resolve problems [sic] and with very uneven abilities as well. When he is ly [sic] involved, he tends to misunderstand even when he is familiar with the words. In neutral situations his verbal comprehension is normal, but in difficult circumstances he is not able to protect himself and his familiy [sic], and through his limited understanding, when in an emotional tension, potentially he may even add to the trouble like it [sic] almost hppened [sic] at the Hearing at the Refugee Board. It would seem that Mr. Petrovics's mild limitations have become enhanced through the intellectually paralysing traumatization which has also led to other types of symptomformation indicating the presence of a posttraumatic stress disorder with nightmares, waking up and shouting in fright at nights even two years after having left Mohacs, unneeded preoccupations and specific paranoidal ideation (tape recorder, Orban), confusing actual and past situation (the prosecutors still intend to follow him), repeated distressing thoughts, feeling and acting as if the events were recurring, exhausting tension and vigilance, marked mental distress, poor concentration, physiological reactions as insomnia and nervous stomach, panic and avoidance of trauma-related people and locality, lacking inner freedom and openness to meet new problems or situations without fear, increased startle response, sadness, irritability, and so on.[2]
[6] At the opening of the second sitting before the CRDD, counsel for the applicants tendered the psychiatric assessment which he apparently had only received that same day.
[7] The following exchange between the presiding member of the CRDD and counsel is recorded at page 267 of the Tribunal Record:
EVELYN: Mr. Kubes, I'm not sure I understand your submissions. Are you saying that the claimant was - - because of his psychological or psychiatric condition, he is not - - the testimony he gave is faulty, he's not capable of testifying and that his evidence is tainted so we cannot use it?
COUNSEL: Well, there's three components that I can answer to that question. Number one, I think, yes, he doesn't fully understand his situation in terms of his situation in Hungary, in particular, the extent to which he was persecuted. Secondly, I don't think he fully understood the interpreter last time. And thirdly, I don't think he fully appreciated the nature of the proceedings.
At pages 269 and 270 of the Tribunal Record, the following exchange is recorded between the other member of the CRDD taking part in the hearing and counsel:
SIMEON: Mr. Kubes, my colleague and I are wondering, now that we have admitted this report, what is your intention in terms of how you wish to proceed, given that the psychologist has indicated the following diagnosis: Post-traumatic stress disorder, chronic and mild mental retardation.
COUNSEL: I just have a few questions that arose from the cross-examination and also that may be related to the report, but not too many.
SIMEON: Can we clarify a couple of things, then? First of all, given the psychological assessment of the psychologist, do you think it's necessary that the claimant be provided with a designated representative?
COUNSEL: No, I don't think so, because as I said, he is competent.
[8] The principal applicant testified further, the refugee claims officer provided oral observations, and counsel for the applicants made submissions. Counsel's submissions contained no reference to the psychological report. They did not address the principal applicants' competence either to represent himself or to represent his children.
[9] The CRDD concluded that the applicants simply did not present credible or trustworthy evidence in support of their claims for Convention refugee status and provided reasonably extensive analysis in its reasons to support this conclusion.
[10] In his memorandum of argument, counsel for the applicants, the same counsel who represented them before the CRDD, identified the following seven issues:
[1]. Whether the claimants were denied their rights to a fair Hearing, and did the Panel conduct a fair, full and proper Hearing, despite the mental state of Jozsef Petrovics, which according to the expert psychological assessment resulted from trauma suffered in Hungary, and whether this prevented him and his family from having a reasonable opportunity to be heard at their Hearing, thereby causing a breach of the Rules of Natural Justice.
[2]. Whether the claimants were denied their rights to a fair Hearing, and did the Panel conduct a fair, full and proper Hearing, despite the fact that the Designated Representative Jozsef Petrovics, according to the expert psychological assessment, clearly did not fully understand the meaning of being a Designated Representative and the duties imposed upon him thereby, and whether this caused him to improperly represent the interests of the minor claimants, by not fully putting forth their cases, creating thereby a breach of the Rules of Fundamental Justice.
[3]. Whether the Tribunal erred in law by making findings that were so patently unreasonable as to constitute a reviewable error?
[4]. Whether the Tribunal erred in law by ignoring relevant evidence and/or failing to consider relevant evidence?
[5]. Whether the Board erred in law in its interpretation and application of the definition of Convention Refugee as defined in section 2(1) of the Immigration Act?
[6]. Whether the Tribunal erred in law by basing its decision on erroneous findings of fact which it made in a perverse and/or capricious manner and without due regard to the evidence properly before it?
[7]. Whether the Tribunal erred in law by concluding that the Applicants have not established a well-founded fear of persecution?
[11] In his oral argument before the Court, counsel for the applicants focussed on the first two issues quoted above which he essentially dealt with together. I am satisfied that his emphasis on those two issues was well placed. Without going into any detail, I am satisfied that there is no merit whatsoever in the written arguments presented by him on behalf of the applicants on the remaining five issues.
[12] In Espinoza v. Canada (Minister of Citizenship and Immigration)[3], Mr. Justice Teitelbaum dealt with a somewhat similar issue. In paragraph 15 of his reasons, he identified one of the issues before him in the following terms:
Whether the Immigration and Refugee Board erred in law by failing to advise the principal applicant of the meaning and purpose of being named the designated representative of the minor applicants for their refugee hearing;
[13] At paragraph 25 of his reasons, Mr. Justice Teitelbaum expressed himself in the following terms:
In my view, subsection 69(4) [of the Immigration Act, quoted earlier in these reasons], which requires that the Refugee Division designate a representative where a person, whether under 18 or not, is unable to appreciate the nature of the proceedings, imposes a duty upon the Board to assess whether the person to be designated appreciates the nature of the proceedings. In my view, this is particularly so in the case of [a] designated representative for children given that the outcome of their claim may be contingent upon such designation. ...
Mr. Justice Teitelbaum concluded on the issue in question in the following terms at paragraph 29 of his reasons:
It is not enough that persons may be represented by counsel. Subsection 69(4) clearly states that it is the Board who shall designated a representative for the children and the Board should have addressed the issue to the applicant's counsel who could have been expected to have knowledge of the legal issues that could flow from such a designation, and in turn inform his clients so they would have the benefit of a fair hearing. What I mean by the above is that it is the responsibility of the Board, before designating a representative to ensure that the representative understands what it is to be a representative and the consequences of being named a representative by the Board.
[14] Here, at the time the principal applicant was designated as the representative of his daughters, no question was raised regarding his capacity to represent them or, in fact, to be the sole person to testify on behalf of himself, his wife, and his daughters. When a question did arise in the mind of counsel for the applicants and a psychological assessment was obtained, the presiding members of the CRDD engaged counsel, in what I conclude to be a thoughtful way, in an examination of the implications of the diagnosis, albeit that the exchange between the panel members and counsel did not specifically address the impact on the daughters. Clearly, however, the panel members provided counsel the opportunity to express concerns in that regard. He failed to do so as he also failed to express concern about reliance on the principal applicant's testimony as the sole testimony on behalf of all of the applicants.
[15] I am satisfied that, on the facts of this matter, the CRDD fully met its obligation to the applicants. It is not now open to counsel for the applicants, having presented their case before the CRDD as he, presumably in consultation with them, saw fit, to now come to this Court and in effect say: "I was wrong and the CRDD owed it to the applicants, particularly the minor applicants, to remedy any misjudgments I may have made on their behalf".
[16] This application for judicial review will be dismissed.
[17] Counsel for the applicants proposed certification of a question similar to that proposed before Mr. Justice Teitelbaum in Espinoza. That question was in the following terms:
Whether the Refugee Determination Division of the Immigration and Refugee Board, before proceeding with a refugee claim, has a duty to ensure that, in compliance with Section 69(4) of The Immigration Act, the designated representative and, any minor claimants concerned therein, or a person who in the opinion of the Division is unable to appreciate the nature of the proceedings, fully understand the meaning of being or having a designated representative, and the consequences that could flow therefrom.
[18] Mr. Justice Teitelbaum declined to certify the above question. I will not certify a question. I am satisfied that this is a matter that turns on its unique facts and that, in the result, any question certified would not be a question of general importance.
___________________________________
J. F.C.C.
Ottawa, Ontario
January 18, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1369-01
STYLE OF CAUSE: Jozsef Petrovics and Others v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Janaury 10, 2002
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice Gibson
DATED: January 18, 2002
APPEARANCES:
Mr. George J. Kubes FOR THE APPLICANT
Ms. Mielka Visnic FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
George J. Kubes FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada