[ENGLISH TRANSLATION]
Ottawa, Ontario, January 8, 2025
PRESENT: Mr. Justice McHaffie
BETWEEN:
Luis Rodolfo MELGAR MORALES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview
[1] Luis Rodolfo Melgar Morales’ claim for refugee protection was based on allegations of extortion and threats by members of a criminal gang in Guatemala in 2016. Both the Refugee Protection Division [RPD] and the Refugee Appeal Division [RAD] of the Immigration and Refugee Board rejected Mr. Melgar’s claim on the grounds that his testimony was not credible. Mr. Melgar is seeking judicial review of the RAD’s decision. He claims that his counsel’s incompetence before the RAD resulted in a breach of procedural fairness and that the RAD’s credibility findings were unreasonable.
[2] I cannot agree with Mr. Melgar’s arguments. The allegations of incompetence against his former counsel have not been proven, and Mr. Melgar did not inform his former counsel of those allegations, a necessary step in presenting those arguments. The RAD’s credibility findings were clearly explained and justified with respect to Mr. Melgar’s testimony and his Basis of Claim [BOC] Form. Mr. Melgar failed to meet his burden of demonstrating that those findings were unreasonable.
[3] Accordingly, the application for judicial review is dismissed.
II. Issue and standard of review
[4] Mr. Melgar’s application for judicial review raises the following issues:
- Was there a breach of procedural fairness due to his former counsel’s incompetence?
- Were the RAD’s credibility findings reasonable?
[5] The first issue is not easily amenable to analysis under a standard of review, particularly since the RAD did not address the issue. It is for this Court to determine whether there was a breach of procedural fairness before the RAD due to the incompetence of Mr. Melgar’s former counsel: Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35. However, if a standard of review applies, it is the standard of correctness.
[6] The second issue is subject to review on a reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25; Acosta Rodriguez v Canada (Citizenship and Immigration), 2021 FC 1298 at para 5). In applying this standard, the Court does not undertake its own analysis of the evidence to draw its own conclusions, and only modifies the RAD’s factual findings in exceptional circumstances: Vavilov at paras 83, 125–126. It determines only whether the RAD’s decision was reasonable, i.e., whether it is justified in light of the facts and whether the decision-maker has not fundamentally misapprehended or failed to account for the evidence before it: Vavilov at para 126.
III. Analysis
A. Procedural fairness
[7] Mr. Melgar appointed a lawyer to represent him before the RAD. He claims that this counsel was so incompetent as to breach procedural fairness. He raises two arguments to this effect: the fact that in 2022 this counsel was disbarred for four months by the Quebec Bar in a matter unrelated to his representation of Mr. Melgar, and the fact that he did not challenge all of the RPD’s findings as to his credibility before the RAD.
[8] A former counsel’s incompetence may result in a breach of procedural fairness, but only in “extraordinary circumstances” that meet three criteria: (1) the former counsel was given notice and was provided with a reasonable opportunity to respond to the allegation; (2) the former counsel’s act or omission constituted incompetence without the benefit and wisdom of hindsight (the performance component); and (3) the applicant suffered prejudice as a result, in the sense that a “miscarriage of justice” resulted, which may take many forms (the prejudice component): R v GDB, 2000 SCC 22 at paras 26–29; Galyas v Canada (Citizenship and Immigration), 2013 FC 250 at para 84; Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at paras 11, 17; Zhou v Canada (Citizenship and Immigration), 2022 FC 1046 at paras 15–17; Brown v Canada (Citizenship and Immigration), 2024 FC 105 at para 17; Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (June 24, 2002) at paras 46–63.
[9] I find that Mr. Melgar has not met his burden of demonstrating that these three criteria were met.
[10] As Mr. Melgar concedes, no notice of the allegations of incompetence was provided to his former representative. This is no mere formality. On the contrary; notification provides this Court with an opportunity to have all of the relevant facts and arguments about the allegations, rather than just the applicant’s version. It also gives the representative an opportunity to respond to serious allegations of incompetence and thus raises a question of fairness to the former representative: Guidelines at para 48. It is therefore described as “a prerequisite to having the issue considered”: Brown at para 17.
[11] Mr. Melgar claims that it is not clear from the Court’s Guidelines that the notification obligation applies to a counsel who has been struck off the Bar. I do not agree. As stated in the Guidelines, the purpose of the notification protocol is to assist the Court in ruling on applications that are the subject of allegations of incompetence and to ensure that the proceedings are fair to the parties concerned: Guidelines at para 48. This goal also applies to counsel who temporarily or permanently lose their status with their bar association or professional order. The definition of “authorized representative” in the protocol refers to a “member in good standing” of a bar or professional order. However, this simply indicates that the protocol applies to all those who are authorized to represent an applicant in an immigration, refugee, or citizenship proceeding. It cannot be interpreted as excluding former counsel simply because they have lost their status in the meantime.
[12] Mr. Melgar’s counsel also informed the court during the hearing that, unfortunately, his former counsel had died in the meantime. Without wishing to draw general conclusions about the duty to notify in the context of a death, the Court does not have enough information about the timing of the death of Mr. Melgar’s former counsel to conclude that the duty to notify should be disregarded in this case.
[13] Although the failure to comply with the duty to notify is sufficient to reject his arguments about his former counsel’s incompetence, I still note that I am not satisfied that Mr. Melgar has established that the alleged lack of competence raised rises to a level of incompetence refuting the “strong presumption that counsel’s conduct fell within the broad range of reasonable professional assistance”: GDB at para 27. The argument that his former counsel failed to inform Mr. Melgar of his sanction in a proceeding unrelated to his own does not seem to me to be an allegation that meets the applicable criteria, particularly given that the RAD informed Mr. Melgar of his former counsel’s disbarment and the fact that Mr. Melgar took no action as a result. Moreover, it is difficult to conclude that his former counsel’s decision not to challenge all of RPD’s credibility findings before the RAD was borne of incompetence. Obviously, we cannot know the counsel’s explanation for this choice, as he was not informed of the allegations. In any event, although his former counsel did not contest all of the RPD’s findings, the RAD nevertheless considered all of those findings.
[14] Mr. Melgar’s allegations of breach of procedural fairness are therefore dismissed.
B. Reasonableness
[15] The RAD drew unfavourable conclusions about Mr. Melgar’s credibility, based on three aspects of his claim. First, when Mr. Melgar was given the opportunity at his hearing before the RPD in April 2022 to explain why he still believed he was at risk from the gang six years after the 2016 events that led him to flee Guatemala, he spoke in general terms about the gang and their desire for revenge. He did not mention the multiple visits by strangers who were looking for him after his departure from Guatemala, which were described in two letters from his parents, dated July and December 2020, respectively. When questioned about this oversight, he claimed to have forgotten those incidents and believed that the questions related only to threats he had personally experienced. The RAD, like the RPD, did not accept this explanation, noting that the continuity of the threats against Mr. Melgar was at the heart of his claim for refugee protection. The RAD also noted the vague nature of the parents’ letters about the alleged visits, and concluded that the visits had not actually taken place.
[16] Second, the RAD did not accept Mr. Melgar’s explanations as to why he failed to apply for asylum in the United States and why he had obtained a visa for the United States a few months before the central gang-related incidents.
[17] Third, the RAD adopted the RPD’s analysis of a significant inconsistency between Mr. Melgar’s testimony and his BOC Form with regard to incidents involving the gang in 2016. Although Mr. Melgar did not challenge the RPD’s conclusion in his appeal, the RAD considered and confirmed it.
[18] Mr. Melgar raised a number of arguments about those credibility findings. He claimed that the RAD should have accepted his explanations for the inconsistencies in his testimony, that the RAD’s judgment was harsh and that it drew a conclusion about Mr. Melgar on the basis of what the evidence did not mention instead of what it did mention, citing Feng v Canada (Citizenship and Immigration), 2019 FC 18 at paras 36–37 and Arachchilage v Canada (Citizenship and Immigration), 2018 FC 994 at para 36.
[19] Having considered these arguments, I find that Mr. Melgar has not demonstrated that the RAD’s decision was unreasonable. The RAD did not merely draw conclusions based on what the evidence did not mention, but on the fact that Mr. Melgar had not testified clearly and credibly with respect to the central issues of his claim for refugee protection, namely the events of 2016 and the gang’s alleged ongoing interest in pursuing him. It is not for this Court to undertake its own analysis of the evidence to draw conclusions more or less [translation] “severe”
than those of the RAD, but simply to consider whether the RAD’s decision was reasonable. The RAD’s findings were transparent, intelligible, and justified with regard to the evidence before it; the decision was therefore reasonable: Vavilov at paras 15, 86, 99–100.
IV. Conclusion
[20] Given that the RAD’s findings with respect to Mr. Melgar’s credibility were reasonable and that his arguments have not established a breach of procedural fairness, the application for judicial review must be dismissed.
[21] The parties did not raise any questions for certification. I agree that none arises in this matter.
JUDGMENT in IMM-10981-22
THIS COURT’S JUDGMENT is as follows:
- The application for judicial review is dismissed.
“Nicholas McHaffie”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-10981-22
STYLE OF CAUSE:
LUIS RODOLFO MELGAR MORALES v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
Montreal, Quebec
DATE OF HEARING:
AUGUST 21, 2024
JUDGMENT AND REASONS BY:
MCHAFFIE J.
DATED:
JANUARY 8, 2025
APPEARANCES:
Stéphanie Valois
FOR THE APPLICANT
Jeanne Robert
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stéphanie Valois
Montreal, Quebec
FOR THE APPLICANT
Attorney General of Canada
Montreal, Quebec
FOR THE RESPONDENT