Federal Court Decisions

 

 

 

Date: 20061127

Docket: IMM-964-06

Citation: 2006 FC 1432

BETWEEN:

SHANDA FONTENELLE

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR ORDER

GIBSON J.

 

INTRODUCTION

[1]               These reasons follow the hearing on the 22^nd of November, 2006, at Toronto, of an application for judicial review of a decision of the Refugee Protection Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD found the Applicant not to be a Convention refugee or a person in need of like protection in Canada.  The decision under review is dated the 31^st of January, 2006.

 

BACKGROUND

[2]               The Applicant is a female citizen of Saint Lucia.  She attested to an extensive experience of domestic abuse at the hands of her former partner and at the hands of others after she separated from her partner.  She sought police protection and, in fact, in 1999, her partner was charged, convicted and sentenced in the alternative to a fine or imprisonment.  The Applicant was awarded monetary damages for the assault perpetrated against her.

 

[3]               On two occasions in 2002, the Applicant left Saint Lucia and sojourned in Martinique.  On each occasion she returned to Saint Lucia.

 

[4]               In February of 2003, the Applicant once again left Saint Lucia, on this occasion, for a holiday in Canada.  She found employment here in Canada and decided to stay.  She did not file a claim for Convention refugee protection or like protection until August of 2005.  She provided little documentary corroboration  to support her claim.

 

THE DECISION UNDER REVIEW

[5]               On the basis of an analysis of the documentary evidence on state protection for abused women in Saint Lucia, together with the evidence regarding the Applicant’s re-availment on two occasions, of her delay in fleeing Saint Lucia to Canada and of her delay in seeking protection in Canada, the RPD dismissed the Applicant’s claim.

 

[6]               In the introduction to its reasons for decision, the RPD wrote:

As the claimant was not represented by counsel, the panel ensured that the following procedural safeguards were in place.  She was given ample time before the commencement of the hearing to confer with a Refugee Protection Officer …, who explained to her the procedures at the hearing and what onus she had to meet.  The Convention grounds and the meaning of the consolidated grounds were explained to her.  She was given an opportunity to review her Personal Information Form…and to make the panel aware of any amendments before swearing to the accuracy of the PIF.  She indicated that she was confident in proceeding without the help of counsel and affirmed that she understood the explanations and instructions provided by the RPO.

[7]               The substance of the quoted paragraph is highly inaccurate.  The Applicant appeared for her hearing with counsel.  Counsel requested a postponement.  That request was denied.  In the face of the denial, counsel nonetheless concluded that he would represent the Applicant at the hearing.  Following questioning of the Applicant by the Refugee Protection Officer and the presiding member, counsel questioned the Applicant at some length.  Finally, counsel presented submissions.

 

THE ISSUES

[8]               Counsel for the Applicant urged that the RPD breached principles of fairness and natural justice in that, on the basis of the earlier quoted paragraph from the reasons for decision, it should be assumed that the presiding member ignored questions posed to the Applicant by counsel at the hearing, as well as the Applicant’s answers to those questions, and further ignored counsel’s submissions at hearing.

 

[9]               Counsel for the Respondent acknowledged that the quoted paragraph represents a glaring error in the reasons, and justifies a determination of a breach of natural justice or procedural fairness, but nonetheless urged that a careful reading of the reasons for decision and the transcript, including counsel’s questioning of the Applicant and her responses, as well as counsel’s submissions, demonstrates that the RPD fully understood the totality of the evidence before it and properly applied the principles of law applicable to the Applicant’s claim.  In the result, counsel urged, notwithstanding any finding of breach of natural justice or procedural fairness, it would be futile to set aside the decision under review and refer the Applicant’s claim back for rehearing and re-determination as the result would inevitably be a further determination against the Applicant.

 

ANALYSIS

Standard of Review

[10]           A pragmatic and functional analysis is not required where the issue before the Court is denial of natural justice or breach of fairness.  Rather, if the appropriate degree of procedural fairness or natural justice has been accorded, no deference is owed and the decision must be set aside.[1]

 

Denial of Natural Justice or Breach of Fairness

[11]           The inclusion of the paragraph quoted earlier in these reasons, from the reasons for decision of the RPD, is unconscionable.  I am prepared to imply from its inclusion that a breach of natural justice or procedural fairness here occurred and that the presiding member ignored the questions posed to the Applicant by her counsel, her responses to those questions, and counsel’s submissions.

 

[12]           In  Sarfraz Hussain et al v. Canada (Minister of Citizenship and Immigration)[2], my colleague Justice MacTavish wrote at paragraphs 20 and 25 of her reasons:

The inadvertent failure of a Board to consider submissions made on behalf of a party can result in the denial of procedural fairness sufficient to warrant the Board’s decision being set aside:…

…

The failure of the Board to consider the submissions of one party, albeit inadvertently, is a breach of procedural fairness.  In all of the circumstances, I cannot say with any degree of certainty that the applicants’ final submissions would not have had any effect on the outcome of the case.  As a consequence, the decision of the Board should be set aside, and the matter remitted to a differently constituted

 

 

 

 

 panel for reconsideration on the basis of a complete record.

[citation omitted]

 

[13]           I adopt the quoted paragraphs as my own.

 

Futility of Quashing the Decision under Review and referring the Applicant’s claim back for rehearing and re-determination

[14]           In Lahocsinszky v. Canada (Minister of Citizenship and Immigration)[3], once again, my colleague Justice MacTavish, wrote at paragraph 13 of her reasons:

Not every breach of natural justice will, however, result in a decision being set aside.  A reviewing court will not set aside a decision where the Court is satisfied that the breach could not have affected the result:  Mobil Oil Canada Ltd. v. Canada–Newfoundland Offshore Petroleum Board…cited in Yassine v. Canada (Minister of Employment and Immigration)…

[citations omitted]

 

[15]           I have thoroughly reviewed the reasons for decision of the RPD, read without the offending paragraph, the transcript of the hearing before the RPD including counsel’s questions to the Applicant and the Applicant’s responses thereto, and counsel’s submissions, and the documentary evidence relating to country conditions in Saint Lucia that was before the RPD.  Based on that review, I am satisfied that the breach of natural justice or procedural fairness that here occurred could not have affected the result.  Not only was the result arrived at by the RPD reasonably open to it, it was inevitable.  Based upon the Applicant’s own conduct and experience in particular, and, more generally, the documentary evidence regarding state protection available to victims of spousal or other equivalent abuse in Saint Lucia, I am satisfied that the Applicant’s claim to Convention refugee protection or like protection could not possibly succeed.

 

CONCLUSION

[16]           For the foregoing reasons, this application for judicial review will be dismissed.

 

CERTIFICATION OF A QUESTION

[17]           At the close of the hearing before the Court, counsel were advised that this application for judicial review would be dismissed.  They were consulted regarding certification of a question.  Neither counsel recommended certification.  The Court itself is satisfied that no serious question of general importance arises on this matter that would be dispositive of an appeal from my decision herein.  No question will be certified.

 

 

“Frederick E. Gibson”

Ottawa, Ontario.

November 27, 2006

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-964-06

 

STYLE OF CAUSE:                          SHANDA FONTENELLE

 

Applicant

and

 

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

Respondent

 

PLACE OF HEARING:                    TORONTO

 

DATE OF HEARING:                      NOVEMBER 22, 2006

 

REASONS FOR ORDER

AND ORDER:                                   GIBSON J.

 

 

DATED:                                             November 27, 2006

 

 

 

APPEARANCES:

 

Michael Korman	FOR THE APPLICANT
David Tyndale	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Otis and Korman Barristers and Solicitors Toronto, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT