CA5-00094

Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD File # / No. dossier SPR CA5-00094 APPLICATION TO RE-OPEN Private Proceeding Huis clos Applicant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience October 6, 2006 Place (s) of Hearing Lieu de l'audience Calgary, Alberta. Date of Decision Date de la décision 30 April 2007 Panel Tribunal Tita de Rousseau Claimant's Counsel Conseil du demandeur d'asile El-Farouk Khaki Barrister and Solicitor Refugee Protection Officer Agent de la protection des réfugiés NIL Designated Representative Représentant désigné Nil Minister's Counsel Conseil du ministre Nil You can obtain the translation of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB at the following address: 344 Slater Street, 14th Floor, Ottawa, Ontario K1A 0K1, by e-mail to translation@irb.gc.ca or by facsimile at (613) 947-3213. La Direction des services de révision et de traduction de la CISR peut vous procurer les présents motifs de décision dans l'autre langue officielle. Vous n'avez qu'à en faire la demande par écrit à l'adresse suivante : 344, rue Slater, 14e étage, Ottawa (Ontario) K1A 0K1, par courriel à traduction@cisr.gc.ca ou par télécopie au (613) 947-3213. Application to Re-open [1] The applicant is applying for a re-opening of his refugee protection claim, which was heard by videoconference between Toronto and Calgary on October 6, 2005 by Refugee Protection Division (RPD) member Deborah Lamont. A negative decision was rendered on October 13, 2005. [2] An application for leave and judicial review of that decision was dismissed by the Federal Court on February 16, 2006. [3] This application to re-open was brought on February 8, 2007. [4] The grounds for the present application can be summarized as: a. that the Spanish interpreter used at the hearing had a Chilean accent which the applicant, as a Nicaraguan, had difficulty understanding. b. that the applicant should have been identified as a "vulnerable person", and that in failing to carry out an "assessment of his vulnerabilities prior to or at the outset of his hearing", the RPD breached the rules of natural justice. The applicant argues that such a breach necessitates a re-opening of his claim. c. that the applicant's previous counsel erred or was negligent in not seeking procedural consideration of the applicant's vulnerabilities, and in not providing a psychological assessment to the panel. [5] In support of this application, the applicant refers to the Chairperson's Guideline 8, Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB which became effective on December 15, 2006. [6] A transcript of the hearing of October 6, 2005, a copy of which was provided to counsel, was reviewed, as well as documents provided by current counsel for the applicant. These documents include a psychological assessment dated February 7, 2007, which, according to the affidavit of the applicant, was obtained for the Pre-removal Risk Assessment and was not available to the panel hearing the claim. [7] The jurisdiction of the RDP to re-open a claim is set out in Rule 55 of the RPD Rules: (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned. (2) The application must be made under Rule 44. (3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister. (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. [8] The RPD's jurisdiction to reopen was clarified by the Federal Court of Appeal in the case of Nazifpour 1: [82] The Federal Court has rejected the argument that, while Rule 55 expressly obliges the Division to reopen for breach of natural justice, since this is not stated to be the only ground for reopening, it does not preclude the Division from reopening decisions on other grounds, including the existence of new evidence. The Court has held that Rule 55 does not expand the jurisdiction to reopen refugee and protection determination. The Division may reopen only for breach of a principle of natural justice. Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, (2004), 258 F.T.R. 226 at paras. 23-25. Interpretation issue: [9] The applicant alleged that he could not fully understand the questions put to him because of interpretation issues. At the start of the hearing, the member noted that the applicant was speaking in English sufficiently fluently that the question was raised as to whether he wanted to proceed in English without Spanish interpretation. He indicated he did want interpretation and the interpreter was used throughout, without any indication from anyone, the applicant, the interpreter or counsel, that the applicant was having any difficulty understanding the proceedings. [10] The transcript at page 2, indicates that when asked by the Presiding Member if he understood the interpreter, he indicated he did. No specific instances of difficulties related to interpretation were identified during the course of the hearing, or in this application. [11] In the case of Mohammadian2 the Federal Court considered the issue of whether a claimant can be seen to have waived his right to object to the quality of interpretation if he has not raised the matter at the first opportunity during the hearing. The court notes that: [18] As Pelletier J. observed, if the appellant's argument is correct a claimant experiencing difficulty with the quality of the interpretation at a hearing could do nothing throughout the entire hearing and yet be able to successfully attack the determination at some later date. Indeed, where a claimant chooses to do nothing despite his or her concern with the quality of the interpretation, the Refugee Division would itself have no way of knowing that the interpretation was in any respect deficient. The claimant is always in the best position to know whether the interpretation is accurate and to make any concern with respect to accuracy known to the Refugee Division during the course of the hearing, unless there are exceptional circumstances for not doing so. [19] As I have indicated, in light of his experience at the very first sitting of the Refugee Division the appellant appears to have been well aware of his right to the assistance of a qualified interpreter. When his conduct during the whole of the third sitting and for some time afterward is weighed with his undoubted knowledge of his right, it is difficult to construe that conduct as other than a clear indication that the quality of interpretation was satisfactory to him during the hearing itself. In my view, therefore, Pelletier J. did not err in determining that the appellant had waived his right under section 14 of the Charter by failing to object to the quality of the interpretation at the first opportunity during the hearing into his claim for refugee status. In failing to raise the issue of interpretation at the hearing, the applicant waived his right to object for the purpose of this reopening application. [11] The psychological report provided for this application indicates the applicant was interviewed in English, and he provided an affidavit in English in support of this application. Even if he had some difficulty understanding the accent of the Spanish interpreter at the hearing, given his ability to comprehend English, it is not credible that he did not adequately understand the questions put to him. [12] There is no indication on the record that there was a problem with interpretation or that the claimant did not understand the interpreter or the questions put to him. His answers to the questions put to him by the Refugee Protection Officer (RPO), the member and his counsel were appropriate, indicating he did understand what he was being asked. He answered the questions at some length when the subject required a full answer. [13] The record does not reflect an inability to express himself, and indeed, he is not now disputing that the evidence he provided at the hearing was incorrect or incomplete. [14] Therefore there was no denial of natural justice on this ground. Identification of the claimant as a "vulnerable person" prior to the hearing of the claim: [15] The Chairperson's Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB became effective on December 15, 2006, well over a year after the October, 2005 hearing. Section 1.4 states that: The IRB occasionally hears cases involving persons for whom a hearing or other case process is a particularly difficult experience because their ability to present their cases is severely impaired due to a physical or psychological frailty or for other reasons. The vulnerability of these persons has always required special consideration and the IRB has in the past adopted case by case procedures to deal with their cases. This Guideline articulates the IRB's commitment to making procedural accommodations for such persons so that they are not disadvantaged in presenting their cases. [16] While the Guideline was not in effect at the time of the hearing, the IRB did recognize its obligation to ensure all persons appearing before it are able to present their claims in accordance with the principles of natural justice. [17] At the time of the hearing, there was no process in place at the IRB to designate a claimant as a "vulnerable person". However, accommodations in the process were made on a case by case basis where the situation required them. [18] For this applicant, the information before the IRB indicated the claimant was a young man who had left his home in Nicaragua at age 12 and lived in the United States for six years before coming to Canada. He was 20 years old at the time of the hearing. He testified he is a homosexual. [19] He was represented by legal counsel from an early stage in making his claim for refugee protection. [20] There was no indication that this claimant was, using the definition of a vulnerable person in section 2.1 of the Guideline, an individual whose ability to present his case before the IRB was severely impaired. In the time between the filing of his Personal Information Form (PIF) and the date of hearing, some eight months, no requests for accommodation of any kind were sought by the applicant or his counsel, nor was any evidence put before the IRB to indicate this claimant required any special consideration. [21] The applicant and his current counsel do not indicate in this application to re-open what accommodations should have been made to allow the applicant to present his claim in a fair manner. [22] The only issue raised in this application is an indication that the applicant was not comfortable with the use of videoconferencing. No objection was ever raised by the applicant or his counsel to this procedure, either before or during the hearing, although they were aware at least four months prior to the hearing that it would be heard by videoconference. [23] Even the psychological report filed for the Pre-removal Risk Assessment does not address the matter of use of videoconferencing. That report indicates the applicant may be stressed when he has to give interviews in English - that was not the case in his hearing where he had an interpreter. His stutter may make it difficult for him to express himself clearly, but it is unclear what the IRB could have done to make that less problematic for him or why videoconferencing would be a factor. [24] The report also notes that: "he may experience an inability to concentrate, he may dissociate, he may appear unfocussed or have difficulty retrieving information he wants to articulate." [25] However, a careful review of the transcript of the hearing does not reveal any unusual difficulty the claimant had in expressing himself. He answered questions put to him clearly and completely. He asked for clarification when he needed it. After finishing his questioning, his counsel invited him to add anything further he wanted to say, and the claimant made an eloquent statement about his hope for a new life in Canada. There is no evidence of his having difficulty expressing himself. [26] The applicant provided no examples or evidence that he was unable to express himself, nor has he indicated what the IRB could have done by way of procedural accommodations to overcome his alleged difficulties. [27] The Applicant has pointed to no other possible accommodations which could have been made in these circumstances, but were not. [28] Therefore, it is determined that the record and subsequent evidence do not establish a denial of natural justice in the IRB's failure to provide procedural accommodations to the claimant. Negligence of Counsel [29] The Applicant appears to allege, without clearly stating it, that his previous counsel was negligent in not making a request for some unspecified accommodations for the hearing. [30] It is noted that previous counsel, Michael Brodzky, is an experienced barrister and solicitor in Ontario, who has considerable experience dealing with the IRB and specifically with refugee claims. He assisted the claimant in preparing the PIF, amending the same, representing him at the hearing and then applying for Leave for Judicial Review to the Federal Court. [31] The applicant does not specify what he thinks Mr. Brodzky should have done, other than stating that he failed to "request procedural consideration for his vulnerabilities", and to provide a psychological assessment to the IRB before the hearing. [32] In the case of Nunez3, Mr. Justice Pelletier stated that charges of negligence or incompetence by counsel are not to be treated lightly. He stated: I am not prepared to accept an allegation of serious professional misconduct against a member of the bar and an officer of this court without having the member's explanation for the conduct in question or evidence that the matter has been referred to the governing body for investigation. In this case, there was ample opportunity to do one or the other, but neither was done. The failure to do so is inconsistent with the gravity of the allegations made. This is not a question of being solicitous of the lawyers' interests at the expense of their clients. It is a question of recognizing that allegations of professional negligence are easily made and, if accepted, generally result in the relief sought being granted. The proof offered in support of such an allegation should be commensurate with the serious nature of the consequences for all concerned. [33] There is no evidence that Mr. Brodzky failed in his obligations to his client in any way. The applicant has not established that it was negligent for counsel to conclude that there was no need for either a request for accommodations nor a psychological assessment. [34] The evidence does not disclose a breach of natural justice resulting from counsel's representation of the claimant. Conclusion [35] The IRB's jurisdiction to re-open a finalized determination of a claim for refugee status extends only to those cases where a denial of natural justice has been established. Disagreement with the analysis and conclusion of the panel hearing the claim, and a request for a re-determination, are matters to be dealt with by way of a request for judicial review to the Federal Court, and are outside the jurisdiction of the RPD. [36] In this case, neither the record nor the subsequent evidence establishes that there has been a denial of natural justice. [37] The application to reopen the hearing is dismissed. "Original Signed By" Tita de Rousseau 30 April 2007 Date KEYWORDS - REFUGEE PROTECTION DIVISION - APPLICATION - REOPENING - INTERPRETATION - GUIDELINES - COUNSEL - NATURAL JUSTICE - MALE - DISMISSED - NICARAGUA 1 Nazifpor v. M.C.I. (F.C.A. no. A020-06). 2 Mohammadian, Soliman v. M.C.I. (F.C.T.D., no. IMM-6500-98), Pelletier, March 10, 2000. Reported: Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371 (T.D.); (2000), 4 Imm. L.R. (3d) 131 (F.C.T.D.). Reported: Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.). 3 Nunez v. Canada IMM-1172-00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ - 2 - RPD File # / No. dossier SPR: __________ - 7 - RPD File No. /Dossier: CA5-00094 RPD File No. /Dossier: CA5-00094