Date: 20021121
Docket: IMM-4267-01
Neutral citation: 2002 FCT 1200
Ottawa, Ontario, Thursday, this 21st day of November, 2002.
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
LINA GULISHVILI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board ("IRB"), dated August 20, 2001 wherein the CRDD denied the applicant's request to have her Convention refugee application reopened.
[2] The applicant, born October 22, 1949, is a citizen of the Republic of Georgia. She entered Canada on November 3, 2000, and claimed Convention refugee status based on her religious beliefs as a Jehovah's Witness and her late husband's political activities.
[3] The applicant was initially represented by counsel, Mr. Marc Boissonneault, to whom she gave her completed Personal Information Form ("PIF") to submit to the IRB. After this time, she was diagnosed with medical problems resulting from a panic disorder. When counsel severed that relationship, the applicant was unaware that her PIF had not been forwarded to the IRB, nor had the Board been made away of her recent change of address.
[4] The applicant retained an "immigration advocate", Mr. Alex Kolenberg, and again changed her address. Mr. Kolenberg did not inform her as to the status of her file at the IRB, nor did he inform the IRB of her change of address.
[5] On June 6, 2001, upon retaining the services of an interpreter to assist her in a social services interview, the applicant discovered that the IRB had never received her PIF, and her file had been abandoned after a hearing held without her knowledge on May 11, 2001. Mr. Kolenberg informed her that he had sent her PIF to the IRB, but that the deadline had already passed when she first met with him. He offered to restart her application, but she declined to deal with him further.
[6] On July 17, 2001, with the assistance of legal aid, the applicant brought a motion before the IRB to reinstate her refugee claim. It was denied by letter dated August 20, 2001. No reasons were provided.
[7] A new PIF was completed and submitted on October 5, 2001.
[8] The issue in this matter is whether the CRDD erred in deciding there were not sufficient reasons to reinstate the applicant's claim for Convention refugee status.
ANALYSIS
[9] The case at bar turns on a question of mixed fact and law - did the CRDD err in deciding that the facts of the applicant's case did not justify reinstatement of her Convention refugee application? The standard of review in such matters is that of reasonableness simpliciter, or in plain English, whether the CRDD was "clearly wrong"as per Evans J.A. in Cihal v. Canada (Minister of Citizenship and Immigration) (2000), 257 N.R. 62 (F.C.A.).
[10] The applicant submits that in view of the conduct of her former counsel and representative, her lack of familiarity with the refugee process, her inability to function in English and her poor health, there are sufficient reasons to reinstate her claim and it would be in the interest of justice to do so.
[11] The respondent submits that the applicant has not shown that any reviewable error has occurred in the CRDD's decision to deny her motion. The respondent further submits that the onus was on the applicant to actively follow the progress of her Convention refugee application, including ensuring that filings, notification of changes in her address and updates took place in good time.
[12] Both parties rely upon the case of Mathon v. Canada (Minister of Employment and Immigration) (1988), 28 F.T.R. 217, where Pinard J. wrote at page 229:
It is precisely because of the error and/or negligence of her counsel, who did not file the application for redetermination within the required deadline even though the applicant had signed it at the proper time, that the applicant was deprived of a full and complete hearing before the Immigration Appeal Board. Accordingly, as the exclusion was solely the result of a lawyer's error and/or negligence, a litigant who has acted with care should not be required to bear the consequences of such an error or negligence. [...]
[13] The applicant uses this case to show that the negligence of counsel should not cause the applicant to suffer. The respondent agrees, but points out that in Mathon, the applicant "acted with care", and submits that in the case at bar the applicant did not act with care and relied on counsel exclusively.
[14] The applicant also refers to the case of Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (T.D.), where Denault J. reviewed Federal Court jurisprudence in similar matters and concluded at pages 60-61:
While each of the foregoing cases involves a different type misconduct on the part of counsel, it seems clear that the incompetence of counsel in the context of a refugee hearing provides grounds for review of the tribunal's decision on the basis of a breach of natural justice. The criteria for reviewing such a decision are not as clear, but it is possible to derive a number of principles from these cases. 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 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. [emphasis added]
[15] Both cases are clear that there must be no fault of the applicant in such matters where the negligence or error of counsel provides grounds for judicial review.
[16] At the hearing of this case on September 11, 2002, the Court directed that the application be adjourned sine die with a direction that the applicant's lawyer of record at the IRB, Mr. Boissonneault, and the applicant's former "immigration advocate", Mr. Kolenberg, be given the opportunity to know the respective allegations of negligence and incompetence against them, and be provided with an opportunity of responding before the Court makes a finding in this case. These two gentlemen were given thirty (30) days to provide the Court with their respective written responses to these allegations of negligence and incompetence. Neither gentleman has filed any response.
[17] The Court is disturbed that the lawyer for the applicant on the record at the IRB, Mr. Boissonneault, failed to make an effort to alert the applicant to the notice of a hearing that the case was to be abandoned. Since the applicant had no notice of the hearing, the applicant was denied the opportunity of a hearing, which is a breach of fundamental justice. Accordingly, the matter is referred back to the CRDD for a new hearing on abandonment. The applicant will have an opportunity to present evidence that it was her lawyer's negligence, and not her lack of care or attention, that was responsible for the PIF not being filed on time and for the applicant not being represented at the CRDD hearing.
ORDER
IT IS HEREBY ORDERED THAT:
This application for judicial review is allowed, and the matter is referred back to the CRDD for a new hearing on the application for reinstatement. No question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4267-01
STYLE OF CAUSE: LINA GULISHVILI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, SEPTEMBER 11, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN, J.
DATED: THURSDAY, NOVEMBER 21, 2002
APPEARANCES BY: Mr. David Woloshyn
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Yallen Associates
Barristers and Solicitors
Third Floor
204 St. George Street
Toronto, Ontario
M5R 2N5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021121
Docket: IMM-4267-01
BETWEEN:
LINA GULISHVILI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER