HUGO FERNANDO ROBLES HILDA SUSANA LODI DE ROBLES ILDA LEO DE LODI Applicants - v. -, 2003 FCT 374

Date: 20030328 Docket: IMM-2090-02 Neutral citation: 2003 FCT 374 Toronto, Ontario, Friday, the 28 th day of March, 2003 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: HUGO FERNANDO ROBLES HILDA SUSANA LODI DE ROBLES ILDA LEO DE LODI Applicants - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER INTRODUCTION Mr. Hugo Fernando Robles, Mrs. Hilda Susana Lodi de Robles and Mrs. Ilda Leo de Lodi (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated April 19, 2002.

In its decision, the Board found the Applicants not to be Convention refugees. FACTS [2] The Applicants are citizens of Argentina. Mr. Robles (the "principal Applicant") is the husband of Mrs. Hilda Susana Lodi de Robles. Mrs. Ilda Leo de Lodi is his mother-in-law. [3] The principal Applicant and his wife arrived in Canada on May 31, 2000 and made claims for Convention refugee status, based on the experience of the principal Applicant who provided the evidence before the Board.

The Applicants claim to have a well- founded fear of persecution in Argentina due to the political and social activism of the principal Applicant; he claims that he suffered persecution as a result of his involvement with the Justicialista Party. [4] On October 2, 2000 Mrs. Ilda Leo de Lodi came to Canada and made her refugee claim. Originally, the principal Applicant's daughter, Silvana Ruth Robles, also claimed Convention refugee status in Canada. Along with her parents, she attended a refugee hearing on October 23, 2000.

This claim was denied by a decision of the Board dated January18, 2001 and an application for judicial review of that decision was commenced on February 13, 2001. [5] On April 10, 2001, the Board agreed to reopen the hearing on the basis of a breach of natural justice.

The Board's reasons dated January 18, 2001 were found to be void ab initio and a hearing de novo was ordered. [6] By notice in writing dated November 2, 2001, Silvana Ruth Robles withdrew her Convention refugee claim and returned to Argentina. [7] The new hearing of the Applicants' claim was held on February 18, 2002, before two different Board members. The Applicants were represented by a lawyer at this second hearing.

The evidence before the Board included the previous decision, as well as a transcript of the proceedings held October 23, 2000. [8] In its decision, delivered on April 19, 2002, the Board found that the Applicants had failed to establish a well-founded fear of persecution in Argentina based on a Convention ground.

The Board did not believe the principal Applicant because he included certain details in his oral evidence, that is, a 1998 beating, that he had been "blacklisted" and that he had received threatening telephone calls, which details were not contained in his Personal Information Form ("PIF") narrative. [9] The Board also did not accept the principal Applicant's explanation for the omissions from his PIF, specifically that he had received bad advice from his former counsel.

The principal Applicant says that he was advised by his former consultant to keep his PIF narrative short and that it had not been read back to him, prior to signature, after it had been translated into English. [10] The Board also found it implausible that the principal Applicant had no specific information about the problems that his daughter Silvana was allegedly experiencing in Argentina, after she had withdrawn her Convention refugee claim in Canada and returned to her country of birth. APPLICANTS' SUBMISSIONS

[11] The Applicants now argue that they were denied an aspect of natural justice due to the incompetence of their former counsel, particularly in relation to the preparation of the PIF narrative. As well, they argue that the Board erred in law in making adverse credibility findings against them when those findings were based upon a defective PIF narrative and those defects were attributable to the incompetence of their counsel. [12] The Applicants acknowledge that there is a heavy burden in demonstrating that their former incompetent counsel created a breach of natural justice.

In this regard, the Applicants refer to Shirwa v. Canada (Minister of Citizenship and Immigration) , 1993 CanLII 3026 (FCA) , [1994] 2 F.C. 51 (T.D.) and Sheikh v. Canada (Minister of Employment and Immigration) , 1990 CanLII 13057 (FCA) , [1990] 3 F.C. 238 (C.A.). [13] When the Applicants commenced their claim for Convention refugee status in Canada, they were represented by one Reverend McLeod, an immigration consultant. The Applicants filed two affidavits in this application for judicial review, one from the principal Applicant and another from a lawyer experienced in immigration matters, Ms. Barbara Jackman.

The Jackman affidavit attests to the serious problems that exist with immigration consultants in the Toronto area and that the government has failed to take any steps towards regulating immigration consultants, despite being aware of the problem. [14] The Applicants argue that it was the consultant's failure to adequately advise the principal Applicant in the preparation of his PIF which led to the adverse conclusions of the Board.

The Applicants further submit that the failure of the Canadian government to regulate consultants and the significance of the consultant's error in not properly advising them leads to the conclusion that natural justice was breached in this case. [15] In his affidavit, the principal Applicant swears that he had no knowledge of the Canadian refugee system when he arrived in Canada and he was not given any advice by the consultant who only met him for five minutes. The Convention refugee definition was not explained to him nor was he advised as to the matters that should be included in his PIF.

The PIF narrative was translated into English by an employee of the consultant and the translation was not read back to him. The principal Applicant signed the PIF on August 2, 2000. The interpreter signed a declaration stating that the principal Applicant had "assured her that he fully understood the contents of the PIF narrative and the attached documents as translated". [16] As for the adverse inferences drawn by the Board relative to matters raised in his oral evidence that were not addressed in the PIF narrative, the Applicants argue that the principal Applicant explained the reason for the discrepancy.

The Applicants now say that the Board failed to consider the explanation provided by the principal Applicant contrary to the decisions in Toro v. Canada (Minister of Employment and Immigration) , 1980 CanLII 4162 (FCA) , [1981] 1 F.C. 652 (C.A.), Maldonado v. Canada (Minister of Employment and Immigration) , 1979 CanLII 4098 (FCA) , [1980] 2 F.C. 302 (C.A.), and Okyere-Akosah v. Canada (Minister of Employment and Immigration) (1992), 157 N.R. 387 (F.C.A.) . [17] Finally, the Applicants argue that the Board drew an unreasonable adverse inference concerning the daughter's return to Argentina.

There was no evidence before the Board as to the nature of the daughter's claim and the extent to which it may have been connected with the claims of the Applicants; see Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.) . RESPONDENT'S SUBMISSIONS [18] The Respondent argues, in the first place, that no weight should be accorded to the Jackman affidavit since it relates to issues of that deponent's opinion and belief, rather than facts within her personal knowledge.

The bare opinion of the deponent concerning the incompetence of immigration consultants has no relevance to this proceeding which is to determine whether the Board erred in law, ignored evidence or based its conclusions on irrelevant considerations, as discussed in Motaharynia v. Canada (Minister of Citizenship and Immigration) (1998), 1998 CanLII 8307 (FC) , 153 F.T.R. 142. [19] Next, the Respondent submits that the Board reasonably considered and weighed all the evidence and determined that it lacked credibility. Relying on Ankrah v. Canada (Minister of Employment and Immigration) , [1993] F.C.J.

No. 385 (T.D.)(QL) , the Respondent says that this Court cannot substitute its decision for the Board's where that decision is based on an assessment of credibility. [20] The Respondent argues that the Board is entitled to draw adverse inferences about a claimant's credibility based on contradictions and inconsistencies between the claimant's testimony and other evidence. Reasonable findings of credibility and plausibility are immune from judicial intervention; see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) . [21] The Respondent also relies on Grinevich v.

Canada (Minister of Citizenship and Immigration) , [1997] F.C.J. No. 444 (T.D.) (QL) , for the proposition that a Board can legitimately consider the failure to mention important facts in the PIF as negatively impacting on a claimant's credibility. [22] The Respondent argues that the Applicants have failed to establish that a breach of natural justice occurred in this case. The omission of key details in a PIF narrative has been found to reflect on a claimant's credibility and not the competency of counsel in prior decisions of this Court. In this regard, the Respondent refers to Grinevich, supra, Lobo v.

Canada (Minister of Citizenship and Immigration) , [1995] F.C.J. No. 597 (T.D.)(QL) and Akhigbe v. Canada (Minister of Citizenship and Immigration) , 2002 FCT 249 (CanLII) , [2002] F.C.J. No. 332 (T.D.)(QL). [23] The Respondent submits that the Board has no responsibility to assess the quality of a claimant's choice of counsel as part of

its analysis of a claim. In this regard, the Respondent relies on the Immigration Act , R.S.C. 1985 c. I-2, as amended (the "Act"), s. 69(1) and Aseervatham v. Canada (Minister of Citizenship and Immigration) (2000), 2000 CanLII 15639 (FC) , 183 F.T.R. 254. [24] Finally, the Respondent argues that only in extraordinary cases will the incompetency of counsel give rise to a natural justice issue; see Cove v. Canada (Minister of Citizenship and Immigration) , 2001 FCT 266 (CanLII) , [2001] F.C.J. No. 482 (T.D.)(QL) and Fatima v. Canada (Minister of Citizenship and Immigration) , [2000] F.C.J. No. 308 (T.D.)(QL) .

ANALYSIS [25] The first issue for consideration is the admissibility of the Jackman affidavit insofar as this affidavit purports to offer opinion evidence, by a person with expertise in the area of immigration law. [26] Ms. Jackman, the deponent, presents herself as a person with expertise in the area of immigration law. She was not cross- examined on the affidavit.

Insofar as she attests to matters within her personal knowledge, that is meetings she had with government officials where the existence and extent of the problem of immigration consultants providing questionable representation and advice to applicants is concerned, the affidavit is admissible. To the extent that Ms. Jackman purports to offer evidence as to what occurred between the Applicants and Reverend McLeod, concerning the completion of their PIFs, those portions of the affidavit are not admissible. [27] In any event, admissibility is one issue and relevance of the affidavit is another.

I am not persuaded that Ms. Jackman's opinion about the availability of unlicensed immigration consultants who are operating with the knowledge of the federal government gives rise to an obligation on the part of the federal government to impose a regulatory regime. Having regard to the decision of the Supreme Court of Canada in Law Society of British Columbia v. Mangat , 2001 SCC 67 (CanLII) , [2001] 3 S.C.R. 113, it was established that the participation of such consultants is a matter within federal, not provincial jurisdiction.

However, the fact that the federal government has jurisdiction to regulate in this area does not necessarily give rise to an obligation to do so. [28] I turn now to the merits of the Applicants' argument concerning the alleged breach of natural justice resulting from the participation of an incompetent immigration consultant. [29] The former Act, section 69(1), recognized that persons seeking Convention refugee status in Canada may be represented before the Board by a non- lawyer.

Section 69(1) provided as follows: In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person's own expense, be represented by a barrister or solicitor or other counsel. Dans le cadre de toute affaire dont connaît la

section du statut, le ministre peut se faire représenter par un avocat ou un mandataire et l'intéressé, à ses frais, par un avocat ou autre conseil. [30] This provision is mirrored in the current law, that is the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , at section 167(1) as follows: Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.

L'intéressé peut en tout cas se faire représenter devant la Commission, à ses frais, par un avocat ou un autre conseil. [31] It is well recognized that persons have to accept the consequences of their choice of counsel. In this regard, I refer to Cove, supra, and Williams v. Canada (Minister of Employment and Immigration) (1994), 74 F.T.R. 34 . It is only when a representative's incompetence rises to the level described in Sheikh , supra, Shirwa, supra, and R. v.

G.D.B. , 2000 SCC 22 (CanLII) , [2000] 1 S.C.R. 520, that a miscarriage of justice be found, brought about by the substantial prejudice to an individual by incompetent counsel. [32] Further, in Fatima, supra, Justice Gibson dealt with an argument concerning incompetent counsel and stated the following at paragraph 21: The burden of the jurisprudence of this Court is to the effect that incompetence of counsel, whether a barrister and solicitor or other person, is not a ground for success on an application for judicial review in the absence of a clear indication that the incompetence is evidenced before the tribunal in a manner that demonstrates to the tribunal substantial prejudice to the applicant. [33] In Sheikh , supra , the Federal Court of Appeal made the following statement at paragraphs 14 and 15 concerning a claim based on the incompetent conduct of counsel: ...

In Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court held that a criminal defendant was entitled to reasonably effective assistance from his counsel. Justice O'Connor said for the majority (at page 694): The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland was adopted by the Ontario Court of Appeal in R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA) , 41 C.C.C. (3d) 97, at page 152. The applicant argued that in the peculiar case of a sleeping counsel, it is not necessary that the person affected show that any prejudice has resulted: Javor v. U.S., 724 F. 2d 831 (9th Circ., 1984). Circuit Judge Ferguson held as follows for the Court (at page 833): Today we conclude that when an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary.

I would be prepared to adopt such a holding, but I would emphasize that in any case where it was applied it would have to be based on a very precise factual foundation... [Footnotes omitted] [34] In Sheikh , supra , the Court emphasized that a precise factual foundation must exist in order for the Court to find that prejudice resulted to a person as a result of the incompetence of counsel.

In that case, the applicant had relied only on the transcript of the hearing without filing an affidavit showing how the presentation of his case was "...substantially affected by his counsel's dereliction." [35] In G.D.B. , supra, Justice Major for the Supreme Court of Canada, at paragraphs 26-29, commented on the approach to be taken, albeit in the criminal law context, in challenging an inferior court decision on the basis of ineffective counsel: The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J.

The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in this assessment. Miscarriages of justice may take many forms in this context. In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised. In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis.... [36] In the present case, the principal Applicant filed an affidavit in which he addressed the alleged incompetent performance of his immigration consultant.

He described the cursory manner in which information was gathered for the purpose of completing his PIF narrative, as well as the manner in which the narrative was translated by an employee of the consultant. This affidavit provides some factual context for the arguments now raised by the Applicants. [37] The Applicants now argue that both the "performance" and "prejudice" aspects of the test identified by the Supreme Court of Canada in G.D.B. , supra , have been met.

The Applicants rely on the affidavit of the principal Applicant and to some extent, upon the evidence of the principal Applicant given at the hearing before the Board whose decision is now under review. In this regard, I refer to the following exchanges from the Applicants' hearing, found at page 448 of the certified tribunal record: RCO: What's the physical one? The worse [sic] physical thing that happened to you? CLAIMANT #1: In mid-'98 I received the beating. RCO: Okay, and that's the- that specific incident wasn't referred to in your PIF. You only spoke about generalities, is that correct?

CLAIMANT #1: Precisely. RCO: Is there any reason that in your written narrative you did not - if that's the worse [sic] physical thing that happened to you is there any reason you did not specifically mention that beating in your written narrative? CLAIMANT #1: I did not mention that specifically, but I did mention. RCO: Well, no, that's why I want to know why you wouldn't mention that specifically if it was the worst thing that happened to you? Why wouldn't you describe that in mid-1988 I was physically beaten by unknown persons?

CLAIMANT #1: Maybe because- maybe it happened because I didn't have good legal advice and I didn't have experience. I hadn't gained experience as I am gaining it now in these proceedings. [38] The Applicants argue that they were prejudiced by their former consultant's bad advice.

Since the Board's reasons were largely based on adverse credibility findings based on the negative inferences drawn from the omissions in the principal's Applicant's PIF narrative, the Applicants say that such alleged prejudice was quite material to the rejection of their refugee claims. [39] In my opinion, while the Applicants presented a viable argument on this issue, there is insufficient evidence to find that natural justice was breached due to incompetent counsel.

As stated in G.D.B. , supra , the onus lies on the Applicants to demonstrate that counsel's conduct fell below that of reasonable competence and as outlined in Fatima, supra and Shiekh, supra , a clear factual foundation must exist demonstrating that the incompetence of counsel resulted in prejudice to the Applicants.

[40] In this case, the Board noted that the principal Applicant's PIF consisted of three typewritten pages and addressed the principal Applicant's allegations of persecution. The Board found that the principal Applicant was an articulate and sophisticated individual who had some experience with legal proceedings in Argentina. The Board did not find credible the explanation offered by the principal Applicant, that the omissions in his PIF narrative were due to reliance on incompetent counsel.

In my opinion, the Board's conclusion in this regard is reasonable and I see no basis for interfering with it. [41] In any event, the Board is entitled to draw adverse inferences regarding credibility based on inconsistencies between a claimant's testimony and other evidence, provided the Board's findings are not "so unreasonable" so as warrant the Court's intervention: see Aguebor, supra , at paragraph 4. [42] In Grinevich, supra , and Akhigbe, supra , the Court held that the Board is entitled to draw adverse credibility and indeed, is entitled to base an adverse credibility finding, on the omission of significant or important facts from a claimant's PIF.

In Akhigbe , supra , Justice Dawson made the following statements at paragraphs 15 and 16: As for the omissions from Mr. Akhigbe's PIF, as noted, the CRDD is entitled to draw a negative inference from the failure of an applicant to set out in his or her PIF important or significant facts. This is consistent with question 37 on the PIF which requires an applicant to set out in chronological order "all the significant incidents" which led the applicant to seek protection.

The CRDD is, however, not entitled to draw a negative inference on the basis of an applicant's failure to omit from the PIF minor or elaborative details. [43] The omissions from the principal Applicant's PIF narrative were not minor or elaborative, in my opinion. They were critical in terms of his refugee claim. The Board was entitled, as noted in the above cases, to draw adverse credibility findings from such omission. [44] In conclusion, the application for judicial review is dismissed. [45] Counsel for the Applicants submitted two questions for certification, as follows: 1 .

Is the failure of the Government of Canada to regulate non lawyer-immigration consultants a relevant factor to be considered by a court when an applicant on judicial review alleges a breach of natural justice as a result of incompetent and prejudicial representation by a non lawyer? 2 .

Is there a distinction, in the context of a breach of natural justice, to be made between the standard of competence required by lawyers and that of non lawyers? [46] Counsel for the Respondent opposes certification of the questions. [47] In my opinion, the questions submitted by the Applicants do not meet the test set out in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.) .

Insofar as the first proposed question is concerned, I repeat my earlier observations, that the fact that the Parliament of Canada has jurisdiction to regulate non-lawyer immigration consultants does not mean that Parliament must exercise that jurisdiction. It is certainly beyond the role of this Court to direct Parliament to act, in that regard. [48] The second proposed question has already been dealt with by this Court in Cove , supra. ORDER The application for judicial review is dismissed. No question is certified. "E. Heneghan" J.F.C.C.

FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-2090-02 STYLE OF CAUSE: HUGO FERNANDO ROBLES, HILDA SUSANA LODI DE ROBLES, ILDA LEO DE LODI Applicants - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: WEDNESDAY, MARCH 12, 2003 REASONS FOR ORDER AND ORDER BY: HENEGHAN J. DATED: FRIDAY, MARCH 28, 2003 APPEARANCES : Mr. Lorne Waldman For the Applicants Mr.

Marcel Larouche For the Respondent SOLICITORS OF RECORD : JACKMAN, WALDMAN & ASSOCIATES 281 Eglinton Avenue East Toronto, Ontario M4P 1L3 For the Applicants Morris Rosenberg Deputy Attorney General of Canada For the Respondent FEDERAL COURT OF CANADA Date: 20030328 Docket: IMM-2090-02 BETWEEN: HUGO FERNANDO ROBLES, HILDA SUSANA LODI DE ROBLES, ILDA LEO DE LODI Applicants - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER AND ORDER