Duale v. Canada (Minister of Citizenship and Immigration)

Between
Mohamed Aden Duale, applicant, and
The Minister of Citizenship and Immigration, respondent

[2004] F.C.J. No. 178
2004 FC 150
Docket IMM-6712-02

Federal Court
Ottawa, Ontario
Dawson J.

Heard: January 26, 2004.
Judgment: January 30, 2004.
(24 paras.)

Counsel:

Michael Bossin, for the applicant.
Marie Crowley, for the respondent.

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REASONS FOR ORDER
1 DAWSON J.:— In Stumf v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 590, 2002 FCA 148, the Federal Court of Appeal held that subsection 69(4) of the Immigration of Act, R.S.C. 1985, c. I-2 ("former Act") imposed the obligation on the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board") to designate a representative for any refugee claimant who met the statutory criteria. This was to be done at the earliest point in time at which the Board became aware of facts which revealed the necessity of the appointment of a designated representative. In Stumf the obligation to appoint a designated representative for one of the claimants was triggered by the fact that this claimant was a minor. Because the age of the minor claimant was apparent to the Board from the outset, and because the failure to appoint a designated representative could have affected the outcome of the claim, the failure of the Board to designate a representative was held by the Court of Appeal to be an error that vitiated the entire decision made with respect to the minor claimant's claim. This was so notwithstanding that the issue of the failure to designate a representative was not raised before the Board, nor was it raised in the application to the Trial Division of the Federal Court (as it then was) for judicial review of the Board's decision.

2 In the present case, two issues arise. First, are the principles enunciated by the Federal Court of Appeal in Stumf applicable under the current legislation, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act")? Second, on the facts of the present case should the decision of the Refugee Protection Division ("RPD") denying Mr. Duale's claim to status as a Convention refugee be set aside?

3 Counsel for the Minister fairly conceded that there is not a sufficient distinction between the relevant provisions of the former Act and the Act as to allow the proposition of law determined in Stumf to be distinguished. I agree. Indeed, in my view, the provisions of the Act, together with the provisions of the Refugee Protection Division Rules, SOR/2002-228 ("Rules"), clearly reflect that the obligation to designate a representative for a claimant who is a minor or who is otherwise unable to appreciate the nature of the proceedings arises at the earliest point in time at which the RPD becomes aware of facts which reveal the need for a designated representative. Further, the need for the designation of a representative applies to the entirety of the proceedings in respect of a refugee claim and not just to the actual hearing of the claim before the RPD. I so conclude for the following reasons.

4 First, the statutory obligation under subsection 167(2) of the Act to appoint a designated representative is virtually identical to the statutory obligation considered by the Federal Court of Appeal in Stumf. Similarly, the obligation on counsel for such a claimant to notify the Board in writing without delay that a claimant is under 18 years of age is continued under the Rules. Such obligation was formerly found in section 11 of the Convention Refugee Determination Division Rules, SOR/93-45 ("former Rules") and is now found in subsection 15(1) of the Rules. The slight difference in wording between the two provisions is not, in my view, material. Subsection 69(4) of the former Act, subsection 167(2) of the Act, section 11 of the former Rules and subsection 15(1) of the Rules are set out in Appendix A to these reasons.

5 That the designation of a representative is to apply to the entirety of the proceedings in respect of a refugee claim flows from the fact that "Board proceedings" as used in section 167 of the Act encompasses more than the actual hearing before the RPD. Thus, subsection 168(1) allows a division to determine that "a proceeding" before it has been abandoned for such pre-hearing matters as failing to provide required information or failing to communicate with the division as required. As well, the word "proceeding" is defined in the Rules to include "a conference, an application, a hearing and an interview". Thus, the duty upon counsel to notify the RPD that a claimant in the "proceedings" is a minor applies to the status of the claimant at conferences, applications, interviews and the like.

6 The Immigration and Refugee Board acknowledges this to be the case in both the "Guidelines concerning Child Refugee Claimants: Procedural and Evidentiary Issues" ("Guidelines") continued under the statutory authority contained in paragraph 159(1)(h) of the Act, and in the Commentary to the Rules ("Commentary") published by the Immigration and Refugee Board.

7 The Guidelines state as follows under the heading "Processing Claims of Unaccompanied Children":

1. Claims of unaccompanied children should be identified as soon as possible by Registry staff after referral to the CRDD. The name of the child and any other relevant information should be referred to the provincial authorities responsible for child protection issues, if this has not already been done by Citizenship and Immigration Canada (CIC). After referral, all notices of hearings and pre-hearing conferences should be forwarded to the provincial authority.

2. The CRDD panel and Refugee Claim Officer (RCO) should be immediately assigned to the claim and, to the extent possible, the same individuals should retain responsibility for the claim until completion. It may also be necessary in some cases to assign an interpreter to the claim as early as possible so that the child can develop a relationship of trust with the interpreter. Before the panel, RCO and interpreter are assigned, consideration should be given to their experience in dealing with the claims of children.

[...]

4. A designated representative for the child should be appointed as soon as possible following the assignment of the panel to the claim. This designation would usually occur at the pre-hearing conference referred to below, but it may be done earlier. CRDD panels should refer to Section II above for guidelines on designating an appropriate representative. In determining whether a proposed representative is willing and able to act in the "best interests of the child", the panel should consider any relevant information received from the provincial authorities responsible for child protection as well as any relevant information from other reliable sources.

5. A pre-hearing conference should be scheduled within 30 days of the receipt of the Personal Information Form (PIF). The purposes of the conference would include assigning the designated representative (if this has not already been done), identifying the issues in the claim, identifying the evidence to be presented and determining what evidence the child is able to provide and the best way to elicit that evidence. Information from individuals, such as the designated representative, medical practitioners, social workers, community workers and teachers can be considered when determining what evidence the child is able to provide and the best way to obtain the evidence.

[underlining added, footnotes omitted]

8 The Commentary states:

Designation applies to all the proceedings in a claim

The designation of a representative applies to all the proceedings in respect of a refugee claim and not just to the hearing of the claim. [emphasis in original]

9 Turning to the application of facts of this case to the law, the Minister argues that the following are significant facts. First, by the time the hearing took place before the RPD, Mr. Duale was 18 years of age and represented by counsel. Thus, it is argued that Mr. Duale was competent to instruct counsel at the hearing and that any designated representative appointed before the hearing would have been dismissed at the hearing. To vitiate the decision in this circumstance is said not to be in accord with the intent of the legislation. Second, the RPD found that Mr. Duale failed to establish his identity that he was not credible. Therefore, it is asserted that the designation of a representative could not change the outcome of the claim and it would be futile to remit the matter for redetermination. Finally, it is said that neither Mr. Duale nor his counsel raised the issue of a designated representative before the RPD so that Mr. Duale is deemed to have waived the requirement.

10 I agree that it is necessary to consider the facts of each particular case and that it may be possible that the failure to designate a representative will not vitiate the determination of a claim. In the present case, the chronology of relevant events is as follows.

11 Mr. Duale was born on October 27, 1984. Therefore, his 18th birthday fell on October 27, 2002.

12 Mr. Duale arrived in Canada unaccompanied by anyone on March 2, 2001. He made his claim to refugee status on April 12, 2001. At that time Mr. Duale was 16 years of age.

13 In consequence of his claim, a notice to appear was issued to Mr. Duale on May 31, 2001 requiring that he appear on July 2, 2001 for the purpose of discussing his claim. Mr. Duale's Personal Information Form ("PIF") was completed by him on June 20, 2001 and was received by the Immigration and Refugee Board on June 21, 2001. On July 12, 2001, copies of documents which Citizenship and Immigration Canada had provided to the Immigration and Refugee Board were provided to counsel for Mr. Duale. Sometime between July 12, 2001 and October 12, 2001, a case officer was assigned to Mr. Duale's file. The case officer completed a checklist which expressly noted that Mr. Duale was a minor and that he was not represented by a designated representative.

14 October 12, 2001, a Refugee Claim Officer ("RCO") File Screening Form was completed which noted that a member of the RPD had been assigned to the claim. Subsequently, on February 12, 2002 the RCO wrote to counsel for Mr. Duale advising of the issues which the presiding member had noted as being particularly relevant. Those issues included Mr. Duale's personal identity and the fact that Mr. Duale was undocumented. On May 21, 2002, an expedited hearing was requested on Mr. Duale's behalf. This request was denied on May 22, 2002.

15 On July 2, 2002, a notice to appear was issued to Mr. Duale advising that the hearing before the RPD would take place on November 5, 2002. On October 22, 2002, correspondence was sent to Mr. Duale's counsel requiring that Mr. Duale bring to the hearing original identification documents.

16 All of these matters transpired while Mr. Duale was a minor not represented by a designated representative.

17 It is also important to consider the purpose of a designated representative. The Guidelines provide that the duties of a designated representative are as follows:

The duties of the designated representative are as follows:

- to retain counsel;

– to instruct counsel or to assist the child in instructing counsel;

– to make other decisions with respect to the proceedings or to help the child make those decisions;

– to inform the child about the various stages and proceedings of the claim;

– to assist in obtaining evidence in support of the claim;

– to provide evidence and be a witness in the claim;

- to act in the best interests of the child.

[emphasis in original]

18 Mr. Duale went through each stage of the proceeding, except for the actual hearing, without the assistance a designated representative was intended to provide. In particular, Mr. Duale did not have the benefit of any assistance from a designated representative in gathering evidence to support his claim. This is contrary to the intent and scheme of the Act and the Rules, and contrary to the Guidelines.

19 As to the effect of the failure to comply with the Act, Rules and Guidelines upon his claim, the RPD made the following findings:

1. Mr. Duale failed to establish his identity. The lack of original identification documents was found to be "incredible";

2. After reciting Mr. Duale's testimony to the effect that the UNHCR issues documents to persons in refugee camps only when they reach 18 years of age, and without commenting adversely on such testimony, the Board wrote:

So I asked if his mother was in the camp with him, had any documents, if she had a ration card because I know from testimony that there are ration cards issued in these camps, and his response was, I never asked my mother, to which I replied it would have made your job a lot easier in establishing your identity and my job a lot easier in accepting that you had made an effort to establish your identity if we had some documentation from the camp.

3. With respect to an affidavit tendered as to Mr. Duale's identity, the Board wrote:

We do have an affidavit going to identity and this affidavit was entered into evidence as Exhibit C-2. Affidavits are always problematic and certainly even more problematic if the author of the affidavit is not available for testimony in support of his affidavit, which is the case in this situation. When asked where the author of the affidavit was, the claimant said he was on his way to Somalia. Asked when he left, he said the 2nd of November.

I find it puzzling that on an issue as important as this, that is the identity of this claimant, the man who authors an affidavit saying he knew the claimant in Somalia would not be able to delay his departure for Somalia by three days so that he would be able to testify as an identity witness. It is up to the claimant to establish his identity and he must make a genuine, substantive effort to do so.

4. The RPD went on to find Mr. Duale's story not to be credible.

20 In light of the first three findings of the RPD set out above, I am unable to safely conclude that the failure to appoint a designated representative could not have had an adverse effect on the outcome of the claim. A designated representative would have been responsible for assisting Mr. Duale to obtain evidence. The evidence before me supports the inference that the evidence gathering process was not what it could have been. (In fairness, I note that counsel for Mr. Duale in this Court did not represent Mr. Duale before the RPD).

21 In sum, to use the words used by Madam Justice Sharlow for the Court in Stumf, I am satisfied that "the designation of a representative in this case could have affected the outcome".

22 I am mindful of the adverse credibility findings of the RPD, but having carefully reviewed them I am satisfied that they could well have been coloured by the RPD's initial finding with respect to identity. Further, the Guidelines note that special evidentiary issues arise when eliciting the evidence of children and when assessing that evidence. While Mr. Duale was not a minor at the time of his hearing, he had turned 18 only 9 days before the hearing and he was 16 when he prepared his PIF. The reasons of the RPD do not expressly refer to Mr. Duale's age, notwithstanding a particularly minute examination of Mr. Duale's PIF. The failure to expressly acknowledge Mr. Duale's age and the impact that age may have had on the completion of his PIF, his testimony and the assessment of his testimony, while perhaps by itself not a reviewable error, does not enhance the credibility findings.

23 I have as well considered the Minister's argument of waiver. In Stumf the claimant's failure to raise the issue of designation either at the hearing or on the application for judicial review did not prevent the issue from being raised in the Court of Appeal. I am not prepared to reach a contrary conclusion in the present case where the issue of the failure to designate a representative was raised squarely in the application for judicial review.

24 For these reasons, an order will issue allowing the application for judicial review and remitting the matter for redetermination. Prior to the issuance of such order, counsel may make submissions with respect to the certification of a question by serving and filing correspondence with the Court within seven days of the receipt of these reasons. Opposing counsel may then serve and file reply submissions within four days of receipt of the opposing party's submissions with respect to certification. Following consideration of any submissions received with respect to certification, an order will issue allowing the application for judicial review and dealing with the issue of certification of a question.

DAWSON J.

* * * * *

APPENDIX A

Subsection 69(4) of the former Act, subsection 167(2) of the Act, section 11 of the former Rules and subsection 15(1) of the Rules are as follows:

69(4) Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age or is unable, in the opinion of the Division, to appreciate the nature of the proceedings, the Division shall designate another person to represent that person in the proceedings.

[...]

167(2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.

[...]

11. Where counsel of the person concerned believes that the person concerned is under 18 years of age or is unable to appreciate the nature of the proceeding, counsel shall so advise the Refugee Division forthwith in writing so that the Refugee Division may decide whether to designate a representative pursuant to subsection 69(4) of the Act.

[...]

15(1) If counsel for a party believes that the Division should designate a representative for the claimant or protected person in the proceedings because the claimant or protected person is under 18 years of age or unable to appreciate the nature of the proceedings, counsel must without delay notify the Division in writing. If counsel is aware of a person in Canada who meets the requirements to be designated as a representative, counsel must provide the person's contact information in the notice.

* * *

69(4) La section du statut commet d'office un représentant dans le cas où l'intéressé n'a pas dix-huit ans ou n'est pas, selon elle, en mesure de comprendre la nature de la procédure en cause.

[...]

167(2) Est commis d'office un représentant à l'intéressé qui n'a pas dix-huit ans ou n'est pas, selon la section, en mesure de comprendre la nature de la procédure.

[...]

11. Dans le cas où le conseil de l'intéressé croit que ce dernier est âgé de moins de dix-huit ans ou n'est pas en mesure de comprendre la nature de la procédure en cause, il en avise par écrit sans délai la section du statut afin qu'elle décide si elle doit commettre d'office un représentant conformément au paragraphe 69(4) de la Loi.

[...]

15(1) Si le conseil d'une partie croit que la Section devrait commettre un représentant à la personne en cause parce qu'elle est âgée de moins de dix-huit ans ou n'est pas en mesure de comprendre la nature de la procédure, il en avise sans délai la Section par écrit. S'il sait qu'il se trouve au Canada une personne ayant les qualités requises pour être représentant, il fournit les coordonnées de cette personne dans l'avis.