Digests

Abdousafi v. Canada (Minister of Citizenship and Immigration)

IMM-337-00

2001 FCT 1372, Blanchard J.

13/12/01

9 pp.

Judicial review of CRDD decision applicant not Convention refugee--Applicant, 35-year-old ethnic Arab, citizen of Djibouti--High school graduate, employed as supervisor on father's four farms--Father, older brother joined Front for Restoration of Unity and Democracy (FRUD) in 1991--Applicant not joining due to physical disability--In 1998 applicant, father, brother arrested, accused of aiding FRUD, interrogated--Applicant released after four days but father, brother detained--Father's farms seized, applicant went to live with relatives--Father died in prison--Applicant continued to be intermittently arrested, detained, interrogated--Came to Canada, claimed refugee status, stating feared persecution due to ethnic identity as Arab, political opinion as supporter of FRUD, membership in particular social group, i.e. his family identity--In its conclusion, CRDD expressed concern with regard to certain responses which were so contradictory that required CRDD to consider whether applicant fully grasped nature of evidence--However, CRDD concluded that, at other times, applicant able to provide quite subtle distinctions in evidence, and quite clear and accurate recall of specific details--Concluding material elements of applicant's claim not credible--Immigration Act, s. 29(4) permitting parent or guardian to represent any person who, in opinion of adjudicator, unable to appreciate nature of proceedings--S. 29(5) providing where person described in s. 29(4) not properly represented by parent or guardian, inquiry shall be adjourned and adjudicator shall designate some other person to represent that person at Minister's expense--Application dismissed--Implicit in conclusion that CRDD of opinion applicant did have ability to appreciate nature of proceedings--Act not requiring CRDD to rely on medical assessment, rather than its own assessment of applicant's ability--Onus on applicant to bring forward medical evidence of alleged deficiency--No such evidence before Court, CRDD--Applicant represented by counsel at all times--Finding that applicant had difficulty understanding relative timing of various events, but not unable to appreciate nature of proceedings in general reasonably open to CRDD on record--Applicant not satisfying test set out in Act, i.e. unable to appreciate nature of proceedings in order to require designation of representative at hearing--CRDD not committing reviewable error--Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (T.D.) setting out criteria for reviewing decision on grounds of incompetence of counsel--Stated when hearing held, decision can only be reviewed in extraordinary circumstances, where sufficient evidence to establish exact dimensions of problem and where review based on precise factual foundation--No evidentiary basis to establish necessary factual foundation to support allegation applicant's counsel aware of mental deficiency, neglected to obtain medical assessment--No extraordinary circumstances established that would allow Court to consider reviewing decision on basis of alleged incompetence of counsel who represented applicant at CRDD hearing--Immigration Act, R.S.C., 1985, c. I-2, s. 29(4),(5).