Digests

Sathasivam v. Canada (Minister of Citizenship and Immigration)

IMM-6187-02

2004 FC 438, Russell J.

24/3/04

13 pp.

Judicial review of Immigration and Refugee Board's decision denying applicant's motion to re-open, re-instate refugee claim--Applicant Hindu Tamil from Sri Lanka, alleging persecution at hands of LTEE, Sri Lankan army-- Bad advice from applicant's former legal counsel allegedly resulting in breach of natural justice--No unfairness on part of Board--Applicant testified at hearing before Board previous counsel did not persuade him to abandon refugee claim--Applicant also signed withdrawal notice indicating he understood nature, consequences of withdrawal and that he was withdrawing without influence--On basis of evidence, reasonably open to Board to find no element of natural justice violated that would lead to reinstatement of claim--Board clearly relied on applicant's testimony, applicant not denying own testimony--Applicant not coerced to withdraw refugee claim--Because of subsequent events, applicant now wishing he had not withdrawn claim--Board clearly considered applicant's allegations about former counsel's advice, but ultimately determined this did not amount to breach of natural justice--Counsel's incompetence may provide grounds for review on basis of breach of natural justice--But, there must be no fault on part of claimant--Only evidence applicant made decision to abandon refugee claim based upon advice from former counsel spousal sponsorship application automatic, did not need to pursue refugee claim--Applicant not negligent, reasonably relied upon advice from counsel-- But no unique fault of counsel resulting in refugee claim not being heard--Tribunal Record indicates applicant did not take position before Board former counsel had given him misleading advice--Applicant accepted decision because expecting in-land spousal sponsorship claim to be successful --Fact it was not and as result, refugee claim not heard not meaning Board failed to respect rules of natural justice-- Hence, Board's finding reasonable--As to whether Board, in breach of interests of justice, failed to allow application, applicant admitting overall objective to become permanent resident of Canada--Applicant's desire to land in Canada not overcoming Board's concern system exists to protect refugees, not means of obtaining immigrant status in Canada--Outcome unfavourable to applicant not implying interests of justice not met--Applicant failed to establish Board ignored relevant evidence related to interests of justice, or erred by failing to give "due significance" to applicant's marriage to permanent resident--Board did not err in failing to allow application.