Ottawa, Ontario, October 12, 2005
PRESENT: THE HONOURABLE JUSTICE JOHANNE GAUTHIER
BETWEEN:
MUHAMMAD ABDULLAM ZAFAR
TAYYABA ZAFAR
RIMAL CHAUDHARY ZAFAR
FATIMA ZAFAR
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the negative decision of the Pre-Removal Risk Assessment (PRRA) officer.
[2] The applicants raised several issues at the hearing that cannot all be properly assessed because some of them require that I consider evidence that was not considered by the decision-maker before rendering his decision. This voluminous evidence was attached to the affidavit of Mrs. Rehana Iqbal even though the applicants had not sought permission of the Court to file it. I will deal further with this issue after addressing the merits of this application as the respondent seeks special costs against the applicants' counsel personally and lengthy additional representations were submitted after the hearing in that respect.
[3] Given my conclusion that the PRRA officer breached his duty of fairness, there is no need to identify or address the other issues raised by the applicants.
[4] The relevant facts are simple. Mrs. Rehana Iqbal and her four minor children are citizens of Pakistan. On August 15, 2003, the Refugee Protection Division concluded that they were not Convention refugees nor persons in need of protection. The RPD, relying on contradictions and discrepancies in the evidence, concluded that the applicants failed to establish their claim with credible evidence, more particularly the credibility of Mrs. Iqbal was put in question. The application for leave and judicial review of this decision was dismissed on December 18, 2003.
[5] On October 7, 2004, the applicants submitted their PRRA application by fax with their written submissions and a list of exhibits. On the first page of this fax, the applicants' counsel indicates that copy of the exhibits listed in the annex and referred in the submissions will be included with the additional copy of the submissions sent by mail.
[6] For some unknown reason, it appears that this copy of the exhibits never reached the CIC even though it was addressed to the Montréal office of CIC.
[7] On November 25, 2004, when the PRRA officer examined the file, which did not contain the exhibits, he found, based on the evidence on file which included the fax copy of the submissions and the list of exhibits, that there was no more than a mere possibility that the applicants would suffer persecution.
[8] With respect to the lack of new evidence, the officer says:
I have reviewed all of the documentation before me and note the applicant has not provided sufficient, reliable or trustworthy evidence to address/outweigh the concerns raised by the IRB. I am not persuaded to arrive at a different conclusion on the basis of the evidence presented in this PRRA application.
(...)
Counsel FAX submission, dated October 7, 2004 stated they were submitting the applicants' answer to question 37 of the PIF and the exhibits that were before the RPD. As the PIF and the exhibits were before the RPD, I find that they do not meet the requirements of section 113(a). No new evidence was received for consideration. [my emphasis]
[9] The applicants argue that in the special circumstances of this case, where the PRRA officer knew that they intended to rely on the exhibits listed in that fax and had effectively referred to them in detail in the submissions which were before the officer, he had the duty to warn them that the exhibits had not in fact been received. They rely on several decisions of the Court: Caceres v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1037 (T.D.) (QL), Nagulesan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1690 (T.D.) (QL), Matondo v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 509 (T.D.) (QL), Anandarajah v. Canada (Minister of Citizenship and Immigration), 1997 F.C.J. No. 934 (T.D.) (QL), Vairavanathan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1025 (T.D.) (QL).
[10] The respondent submits that the Federal Court of Appeal confirmed in Owusu v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 158 (F.C.A.) (QL), that an officer reviewing an application for an exemption on the basis of humanitarian and compassionate grounds has no duty to warn an applicant of the weaknesses of his or her case. In the respondent's view, this principle should also apply to PRRA officers and there is no reason not to apply it to the present case.
[11] It is trite law that standards of review are irrelevant when the Court must determine whether there has been a breach of natural justice (Canada(A.G.) v. Fetherston, [2005] F.C.J. No. 544 (QL), paragraph 16).
[12] I agree with the respondent that there are no relevant differences between the two types of applications (H & C v. PRRA) that could justify not applying the principle stated in Owusu, supra, in the context of a PRRA application.
[13] That being said, this does not help us in the particular circumstances of this case for here the problem is not that the officer had identified weaknesses in the case as submitted but rather that he had clearly been put on notice of the applicants' intent to rely on these exhibits. The officer had to specifically disregard passages of the submissions which refer to this evidence in order to reach his conclusion. There could be no doubt in his mind that the applicants intended to rely on this evidence. Despite this, the officer made no effort to locate the exhibits or advise the applicants that they had not in fact been received.
[14] Obviously, it would have been advisable for the applicants' counsel to follow up on the matter to ensure that there were no undue administrative errors in forwarding this documentation to the decision-maker. In the future, when documents are sent, it would also be good practice for counsel to ensure that the delivery receipt mentions the number of pages included in any given package with respect to a particular applicant.
[15] However, in the particular circumstances of this case, as I mentioned it in Nagulesan, supra, failure to do so cannot materially affect the applicants' rights.
[16] Like Harrington J. in Matondo, supra, I find that coming to a different conclusion would be paying lip service to the right of these applicants to have fair consideration of their submissions.
[17] I have come to this conclusion after considering that a simple warning would not impose a cumbersome duty on the officer because in practice those cases should happen very rarely. Obviously, if they were to happen regularly, or even more than once to a given counsel, good faith could become an issue.
[18] A breach of procedural fairness can only be overlooked if there is no doubt that it had no material effect on the decision. This is not the case.
[19] I note however that my decision should not be construed as recognizing any merit to the applicants' claim. Their application will be reconsidered by a different officer who will obviously have to assess as a first step whether these exhibits constitute new evidence within the meaning of section 113.
[20] No question was proposed for certification as it is clear that this case turns on its own facts.
COSTS
[21] As mentioned, the respondent is seeking special costs from the applicants' counsel personally. The respondent argues that there are special reasons to depart from the general rule set out in paragraph 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, as am.
[22] It is submitted that despite this Court's warning in Pakawet Akouete v. Canada(Minister of Citizenship and Immigration), IMM-4152-03, the applicants' counsel has again filed substantial new evidence that was not before the decision-maker in support of his application for judicial review without seeking permission to do so.
[23] According to the respondent, this is not an isolated incident. Repeatedly, the applicants' counsel used this tactic to unduly influence the Court. This forces the respondent to address the issue in detail in their own written submissions, adding to the time and costs of the defence each time.
[24] The applicants' counsel argues that there was no new evidence filed in this case because he was never informed that the exhibits were not received by the respondent.
[25] He also submits that the rule that no new evidence can be considered in judicial review, except in exceptional cases where there are errors of a procedural nature or breaches of natural justice, should not be applied as strictly in cases where the decision under review deals with a PRRA application. Because this is the very last recourse available to a failed refugee claimant, the Court should accept any evidence which might avoid the violation of the Charter or of international law. He states that the Federal Court should follow the example of the European Court of Human Rights that reviews all the evidence available until its decision is rendered.
[26] Finally, the applicants' counsel reviews each of the cases cited by the respondent in which he would have filed new evidence and he explains how and why he was justified in submitting such evidence in each case. He says that in fact, only four of these cases were filed after he received the warning of the Court in Akouete, supra. Because no egregious errors were committed, he submits that costs should not be ordered against him.
[27] On July 26, 2004, in Akouete, supra, the respondent had made a similar request to the Court. At that time, the law applicable with respect to the filing of new evidence in the context of a judicial review was clearly discussed with this counsel.
[28] Despite the fact that he had clearly failed to request permission to file the new evidence submitted in Akouete, supra, I indicated that I was not prepared to grant costs against him because, he had not been put on notice that such costs would be sought if he were to continue his practice of filing such new evidence in cases where he clearly required the Court's permission to do so. I expressly stated and indicated in my order that the order itself would serve as such a warning and that the respondent could bring a new request for special costs in the future if the incident happened again.
[29] It is clear that substantial new evidence was filed in the present case. In his decision, the PRRA officer also clearly says that no new evidence was received for consideration. This made it clear that the exhibits, whether they had been actually received by CIC or not, were not before the decision-maker. In the circumstances, the Court simply cannot accept counsel's submissions that he did not know that these documents were not before the decision-maker until he reviewed the affidavit of the PRRA officer filed by the respondent.
[30] Obviously, because the present case involves an issue of natural justice, the applicants were entitled to file new evidence to establish when and how they had filed their submissions and exhibits. However, this did not give them the right to file these exhibits in order to argue that the decision was flawed on the merits. As I said, the Court could not review those arguments because the evidence was not before the officer and could therefore not be used to challenge his assessment of the risks.
[31] This behaviour forced the respondent once again, not only to address the issue of new evidence without permission but also to review the merits of the arguments put forward by the applicants' counsel.
[32] There is no doubt in my mind that this resulted in additional cost for the respondent and in a loss of time for the Court.
[33] Counsel could have raised his new arguments as to why the law should be changed in the context of a motion to file new evidence in this case or in any future appropriate case. A reply to a request for cost is not the time and place to do so and I note that counsel certainly did not raise this issue in Akouete, supra.
[34] An officer of the Court must pay attention to the rules of the Court and the law whether he agrees with them or not. To disregard the applicants' counsel behaviour in this case would be unfair not only to the respondent but to all counsel who respect those rules even though they have no less passion and enthusiasm to properly defend the rights of their clients.
[35] After considering all the representations made by the parties, I have concluded that this is an appropriate case to exercise my discretion to award special costs against the applicants' counsel personally. I set the amount of the said costs at $500.
ORDER
THIS COURT ORDERS that:
1. The application is granted.
2. The applicants' PRRA application shall be reconsidered by a different officer.
3. Costs in the amount of $500 are awarded to the respondent against the applicants' counsel personally.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-452-05
STYLE OF CAUSE: MRS. REHANA IQBAL
MUHAMMAD ABDULLAM ZAFAR
TAYYABA ZAFAR
RIMAL CHAUDHARY ZAFAR
FATIMA ZAFAR
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: July 13, 2005
REASONS FOR ORDER: GAUTHIER J.
APPEARANCES:
Stewart Istvanffy FOR APPLICANT(S)
Michèle Joubert FOR RESPONDENT(S)
SOLICITORS OF RECORD:
Stewart Istvanffy FOR APPLICANT(S)
1061 rue St-Alexandre, Suite 300
Montreal, Quebec H2Z 1P5
John H. Sims, Q.C. FOR RESPONDENT(S)
Deputy Attorney General of Canada
Montreal, Quebec