Ottawa, Ontario, March 2, 2006
Present: The Honourable Mr. Justice Martineau
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant is a citizen of Burundi. He is of Hutu ethnicity. He arrived in Canada in 1998 at the age of 15 years old as a permanent resident. He does not have a spouse or child in Canada.
[2] Between 2000 and 2005 inclusively, the applicant was found guilty of various criminal offences which involved the use of violence, inter alia: assault with a weapon, four counts of robbery, failure to comply with an undertaking, uttering threats, assaults and breaking and entering a dwelling house with intent. That being said, the evidence shows that on March 23, 2004, there was a verdict finding that the applicant was not criminally responsible on account of a mental disorder with respect to certain offences with which he was then charged. We also point out that on March 2 , 2005, the applicant pleaded guilty to assault offences against his mother and to breaking probation. Those offences date back to February 9, 2005. Several weeks later, the Appeal Division (the panel) heard the applicant's appeal against the removal order made against him in the interim by the Appeal Division on September 5, 2003.
[3] The admissibility of the applicant's appeal pursuant to subsection 63(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) is not in dispute in this case. On March 24, 2005, the applicant, who was then represented by counsel, testified at the hearing. The panel also heard the testimony of the applicant's mother and of Marian Shermarke of the Service d'Aide aux Réfugiés et aux Immigrants du Montréal Métropolitain (SARIMM), who earlier acted as the applicant's designated representative. Various documentary evidence was also submitted to the panel by both parties. On June 9, 2005, the panel refused to allow the appeal or to stay the removal order, hence this application for judicial review to have that decision set aside and the matter referred to another member of the panel.
[4] We must begin by remembering that in the limited context of an application for judicial review, the Court's examination bears on the lawfulness of the panel's decision, and not on the merits of that decision, unless the record reveals that it was patently unreasonable (Lucas v. Canada (Minister of Citizenship and Immigration), 2006 FC 34 at paragraph 9 (F.C.); Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875 at page 877; Jessani v. Canada (Minister of Citizenship and Immigration) (2001), 14 Imm. L.R. (3d) 235 at paragraph 16 (F.C.A.), [2001] F.C.J. No. 662 (QL)). Certainly, the panel's failure to observe a principle of natural justice or principle of procedural fairness would ultimately affect the lawfulness of the decision and could in the circumstances amount to grounds for the Court's intervention (paragraph 18.1(4)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7).
[5] In this case, in exercising the powers conferred to it by paragraph 67(1)(c) and subsection 68(1) of the Act, the panel must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. This is a discretionary power. The panel is guided on this point by the factors listed in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), the substance of which was confirmed by Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraphs 77 and 90.
[6] Note that these factors include, inter alia:
(a)
(a) the seriousness of the offence leading to the deportation;
(b) the possibility of rehabilitating the appellant;
(c) the length of time spent in Canada and the degree to which the appellant is established;
(d) family that the appellant has in Canada and the dislocation that the appellant's deportation would cause to his family;
(e) the support available for the appellant not only within the family but also within the community;
(f) the degree of hardship that would be caused to the appellant by his return to the country where he will likely be removed.
[7] The applicant, who is today represented by new counsel, is not now claiming that the panel acted in a perverse or capricious manner in making the decision that he is asking to have set aside. The applicant acknowledges that the removal order was legally valid and that in the best case scenario, all he could expect from the panel was to get a stay for a determinate period of time.
[8] That being said, the applicant alleges that his former counsel failed to submit any documentation to the panel regarding:
(a) the political, economic and social situation prevailing in Burundi;
(b) the existence of a moratorium ordered by Citizenship and Immigration Canada on the enforcement of removal orders to Burundi; and
(c) the applicant being diagnosed with post-traumatic stress disorder.
By and large, the applicant is today arguing that these omissions, which incidentally involve the application of the sixth requirement referred to at paragraph 6 of these reasons, caused him serious prejudice and had the effect of depriving him of his right to a full hearing before the panel. Further, on December 9, 2005, a few weeks after he was given leave to file this application for judicial review, the applicant filed a complaint against his former counsel with the Syndic of the Barreau du Québec.
[9] I find that the applicant did not meet his heavy burden of proof of establishing to the Court's satisfaction his former counsel's incompetence as well the prejudice that he alleges to have suffered in this case: see R. v. G.D.B., [2000] 1 S.C.R. 520 at paragraphs 26-29, referring to the approach set out in Strickland v. Washington (1984), 466 U.S. 688; Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 at paragraphs 14-15 (F.C.A.); Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 at paragraphs 8-11 (F.C.T.D.); Drummond v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 258 at page 259 (F.C.T.D.); Robles v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 520 at paragraphs 31-39 (F.C.T.D.) (QL), 2003 FCT 374; Jaouadi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1714 at paragraph 30 (F.C.T.D.) (QL), 2003 FC 1347; Hallat v. Canada, [2004] F.C.J. No. 434 at paragraphs 20-22 (F.C.A.) (QL), 2004 FCA 104).
[10] The applicant's former counsel is a member in good standing of the Barreau du Québec. Even though a disciplinary complaint has been brought against her, she has not been held professionally liable. It would therefore be inappropriate for this Court to make any determination regarding the possible existence or absence of a professional fault in the context of this matter. Further, according to the evidence before me today, I cannot determine that the applicant's former counsel's judgment was unreasonable because she did not file before the panel documentary evidence corroborating the fact that the applicant suffers from post-traumatic stress disorder, that Burundi is struggling with a civil war with a backdrop of ethnic tensions between Hutus and Tutsis, that arbitrary arrests and abuse in detention occur frequently and that the respondent suspended removals to Burundi.
[11] First, it must be understood the applicant's case would be difficult for any counsel. This is reinforced by the applicant's lack of remorse and the fact that the assaults committed by the applicant as recently as February 8, 2005, involved his own mother. The applicant's former counsel argued that a temporary stay should be granted by the panel considering all of the circumstances of the matter. She raised the applicant's personal and family situation, among other things. The applicant is of Hutu origin. He never lived in Burundi and does not have much family in that country. In 1994, he had to flee his native Rwanda because of the genocide. He was greatly traumatized. He went to Zaïre where the situation was not better: he left that country in 1996 for Kenya. At that time, the applicant was only 13 years old and all that he knew was war and violence. On that point, the applicant's counsel pointed out that one of the witnesses, Ms. Shermarke [TRANSLATION] "was perhaps talking about post-traumatic stress disorder", even if she was not a psychologist.
[12] At the hearing, the member expressed his surprise at learning of the existence of a post-traumatic stress diagnosis. The applicant's former counsel indeed told the panel that she had in her possession a report from the Institut Philippe-Pinel dated March 2004 which referred to that diagnosis. However, she decided that it was inappropriate to file that document because it was illegible. In fact, she had asked that a new copy be sent to her but apparently her request went unanswered. It is easy today to attack the wisdom of the decision by the applicant's former counsel not to file that document. In any event, I do not think that this omission is material or that it was the result of unreasonable professional judgment in the circumstances. In fact, the report in question states that the post-traumatic stress disorder diagnosed was in total remission at the time the report was prepared.
[13] That being said, the applicant's counsel also pointed out before the panel that the applicant continued to take medication and that he feared returning to Burundi. Furthermore, she reminded the panel that the applicant was being followed by a psychiatrist. She also insisted on the fact that the applicant recently stopped using drugs and alcohol and that he had decided to put his life in order and go into therapy. The applicant's former counsel insisted on the fact that the applicant was not a public threat and that he could eventually count on his mother's support. Also, when we consider the circumstances as a whole, the applicant's former counsel submitted to the panel that all of these positive factors should outweigh the negative factors pointed out by the respondent's counsel.
[14] In this case, the applicant had the opportunity to submit evidence and to argue his point of view at a hearing duly convened for that purpose where witnesses could be heard. It is therefore not a case where, stricto sensu, we can fault the panel for breaching a principle of natural justice or a case where it is apparent on the face of the record that a party had not been heard because of a fault committed by his counsel. After weighing all of the evidence submitted by the parties in accordance with the factors listed in Ribic and the arguments of each counsel, the panel decided to dismiss the applicant's appeal. The panel's reasons are clear and unequivocal. The panel noted that the applicant does not have any children or a common law spouse with children. Specifically, with regard to the significance of the difficulties that the applicant could have in the country to which he would likely be removed, the panel accepted inter alia the fact that painful circumstances had led the applicant, who had never lived in Burundi, to flee Rwanda in 1993. On the other hand, the panel observed that in Burundi, the applicant's uncle - i.e his mother's brother - works at the embassy. According to the applicant's testimony, he knows his uncle well, because he grew up with him in Rwanda. Further, the applicant also has a few cousins in Burundi.
[15] That being said, the panel was very aware of the applicant's fear of being killed in Burundi because of his Hutu nationality, even though Hutus make up almost 85% of the population. The panel also noted that the applicant did not file any documentary evidence from reliable sources to corroborate his allegations of persecution based on his Hutu ethnicity if he were to be removed to Burundi. The applicant is now relying on this observation made in passing by the panel to say that his former counsel was incompetent and that there is a reasonable possibility that his appeal could have been allowed but for that omission. I do not at all share the impression of the applicant and his current counsel. When I consider all of the evidence in the record and objectively analyse the positive and negative factors pointed out by the panel in its decision, the documentary evidence of the general conditions prevailing in Burundi appear to me to be of very relative importance and of minimal persuasiveness considering the panel's general reasoning in refusing a stay to this applicant.
[16] First, in terms of the positive factors, the panel considered the absence of cases pending against the applicant; his seven-year stay in Canada; the presence of his family members in Canada, including his mother; his mastery of the English language; the few jobs that he has had over the years; his dual diagnosis (mental health problems and addiction problems - alcohol and drugs); the SARIMM's involvement beginning in November and December 2004, as well as the steps taken at Centre Le Portage at the end of February 2005.
[17] On the other hand, the negative factors were such that there were not, in the panel's opinion, sufficient humanitarian and compassionate grounds to justify a stay. These include:
(a) the nature of the criminal convictions which involve not only the use of violence, but also the applicant's lack of respect for the legal authorities;
(b) the applicant's lack of sincere remorse;
(c) the behaviour of the applicant, who failed to take his medication in the days preceding the event on February 9, 2005, and who continued to deny having assaulted his mother;
(d) the high risk of recidivism as well as the slim chance of rehabilitating the applicant, which the psychiatrist confirms in his report;
(e) the fact that the steps taken by the applicant with Centre Le Portage were very recent;
(f) The strained relationship between the applicant and his father-in-law as well as between him and his two half-sisters residing in Canada.
[18] As we can see, this is not a case where counsel's alleged failure to represent or alleged negligence are obvious on the face of the record and have compromised a party's right to a full hearing. We can understand that the acts or omissions alleged against counsel or against an immigration consultant could be directly connected with a person's prejudice. That is the case, for instance when a refugee claim is dismissed where there is no credible basis for the claim, or when an application to reconsider or an appeal has been dismissed because, for an inexcusable reason, the former counsel was asleep for extended periods of time during the hearing, did not show up for the hearing, did not file any documentary evidence or missed a peremptory delay: see Mathon v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 707 (F.C.T.D.) (QL), 28 F.T.R. 217; Sheikh v. Canada, supra; Shirwa v. Canada, supra;Huynh v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 642 (F.C.T.D.), 65 F.T.R. 11; De Vega v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1935 (F.C.T.D.) (QL), 161 F.T.R. 126; Taher v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1327, 2002 FCT 991; Osagie v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1656, 2004 FC 1368.
[19] The allegations made today by the applicant against his former counsel do not have that objective seriousness and bear only on the sufficiency of the evidence relating to the significance of the problems that the applicant could encounter if he were removed to Burundi. In the great majority of cases, we do not distinguish the facts and acts of counsel from those of the client. Counsel is his client's agent and, as severe as it may seem, if the client retains the services of mediocre counsel (which, in passing, was not established here by the applicant), he must suffer the consequences. However, in exceptional cases, counsel's incompetence may raise a question of natural justice. The incompetence and the alleged prejudice must therefore be clearly established. On that point, the wisdom of hindsight has no place in this assessment and it must be demonstrated to the Court that inter alia, the acts or omissions alleged against counsel did not result from exercising reasonable professional judgment. That is not the case here.
[20] Finally, the various omissions alleged against the applicant's former counsel are not such that they would undermine the confidence of a reasonably informed objective person regarding the outcome of the applicant's appeal. With respect to the existence of a moratorium on removals to Burundi, this is a public fact of which the panel could have taken judicial notice. On the other hand, the relevance of that fact is not immediately obvious. Bear in mind that the place and the date of the removal are not within the panel's jurisdiction. Those decisions rather fall within the scope of the Minister's powers: see Chieu, supra at paragraph 74; Kalombo v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 810 at paragraph 25 (F.C.T.D.). Further, the considerations for which the Minister can impose a moratorium in accordance with section 230 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) involve the entire civilian population of a given country or place. Pursuant to paragraph 230(3)(c) of the Regulations, such a moratorium does not apply to those who are inadmissible for serious criminality or criminality under subsections 36(1) or (2) of the Act. Moreover, with respect to the personal risk to the applicant if he were to be deported to Burundi, nothing is stopping him from making a claim for protection under subsection 112(1) of the Act, if need be. If the applicant is recognized as a "person in need of protection" under subsection 115(1) of the Act, he could not be removed by the respondent to a country where he would be at risk of being persecuted based on his race, his religion, his nationality, his membership in a social group or his political opinion, or at risk of torture or cruel or unusual treatment or punishment. In fact, even though the applicant was inadmissible to Canada for serious criminality under subsection 36(1) of the Act, I note incidentally that in this case the respondent is not claiming that the applicant is not a danger to the public in Canada, so that the exclusion under subsection 115(2) of the Act should not apply in this case.
[21] In conclusion, this application for judicial review must fail. Second, no question of general importance is raised in this matter.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question of general importance is certified.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4211-05
STYLE OF CAUSE: Emmanuel Trompe Dukuzumuremyi v. Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 15, 2006
REASONS FOR ORDER
DATE OF REASONS: March 2, 2006
APPEARANCES:
| Carole Fiore
|
FOR THE APPLICANT |
| François Joyal
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Bélanger, Fiore Avocats Montréal, Quebec
|
FOR THE APPLICANT |
| John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |