TC0-04649

TC0-04649

The RAD found that prior counsel's specific acts and omissions — failure to amend the BOC, failure to involve the Designated Representative, failure to solicit and present reasonably available corroborative evidence, and deficient performance at hearing and in submissions — fell outside the range of reasonable professional assistance and caused a miscarriage of justice by undermining the reliability of the RPD result; consequently the RAD admitted the new evidence as reasonably not presented due to counsel incompetence and remitted the matter to the RPD for a new hearing to fully assess exclusion, inclusion and credibility.

Citation
TC0-04649
Parties
Principal Appellant: XXXX XXXX; Minor Appellant: XXXX XXXX (minor); Respondent (minister): Minister of Public Safety and Emergency Preparedness; Designated Representative: XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
2 March 2021
Procedural Posture
Refugee Appeal (rad) From RPD Exclusion Decision Under IRPA Article 1 F(b) / Decision on Appeal — Allowed and Remitted to RPD for Redetermination (new Hearing)
Outcome
Appeal allowed; decision of the RPD set aside in part and matter remitted to the RPD for redetermination (new hearing)
Legal Topics
Counsel Incompetence, Miscarriage of Justice, Article 1 F(b) Exclusion (child Abduction), Admission of New Evidence (s.110(4) Irpa), Credibility Assessment, Remittal for De Novo Hearing
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness/natural Justice Counsel Incompetence Miscarriage of Justice Article 1 F(b) Exclusion (child Abduction) Admission of New Evidence (s.110(4) Irpa) +2 more

Case Brief

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX (minor)

Minor Appellant

Minister of Public Safety and Emergency Preparedness

Respondent (minister)

XXXX XXXX

Designated Representative

Procedural Posture

Refugee Appeal (rad) From RPD Exclusion Decision Under IRPA Article 1 F(b) / Decision on Appeal — Allowed and Remitted to RPD for Redetermination (new Hearing)

Legal Issues

  1. 1 Did former counsel's incompetence cause a miscarriage of justice rendering the RPD proceedings procedurally unfair?
  2. 2 Was the Principal Appellant properly excluded under Article 1F(b) for child abduction?
  3. 3 Should the RAD admit the new evidence under s.110(4) IRPA and related jurisprudence?

Ratio Decidendi

The RAD found that prior counsel's specific acts and omissions — failure to amend the BOC, failure to involve the Designated Representative, failure to solicit and present reasonably available corroborative evidence, and deficient performance at hearing and in submissions — fell outside the range of reasonable professional assistance and caused a miscarriage of justice by undermining the reliability of the RPD result; consequently the RAD admitted the new evidence as reasonably not presented due to counsel incompetence and remitted the matter to the RPD for a new hearing to fully assess exclusion, inclusion and credibility.

Court Disposition

Appeal allowed; decision of the RPD set aside in part and matter remitted to the RPD for redetermination (new hearing)

Orders

  • Appeal allowed
  • New hearing ordered at the Refugee Protection Division for full assessment of all evidence including the newly admitted materials