MC0-08750

MC0-08750

Former counsel's failure to assist in preparing the initial BOC narratives and her inconsistent positions (supporting credibility at hearing but denying assistance and calling claim grossly unfounded on appeal) established incompetence; that incompetence produced the critical omission relied on by the RPD for an adverse credibility finding and thereby caused a miscarriage of justice warranting setting aside the RPD decision and remitting the claim for redetermination.

Citation
MC0-08750
Parties
Principal Appellant: XXXX XXXX; Associate Appellant: XXXX XXXX XXXX; Minor Appellant: XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
15 June 2021
Procedural Posture
Refugee Appeal / Decision on Appeal Remitting Matter to Refugee Protection Division for Redetermination
Outcome
Appeal allowed; RPD decision set aside; matter remitted to RPD for redetermination by a differently constituted panel
Legal Topics
Credibility Findings, Competence of Former Counsel, Admission of New Evidence on Appeal, Remedy Redetermination, Procedural Fairness/natural Justice
Source Language
English
Immigration Law Refugee Law Administrative Law Professional Conduct of Counsel Credibility Findings Competence of Former Counsel Admission of New Evidence on Appeal Remedy Redetermination +1 more

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Parties

XXXX XXXX

Principal Appellant

XXXX XXXX XXXX

Associate Appellant

XXXX XXXX XXXX

Minor Appellant

Procedural Posture

Refugee Appeal / Decision on Appeal Remitting Matter to Refugee Protection Division for Redetermination

Legal Issues

  1. 1 Whether former counsel's acts or omissions constituted incompetence
  2. 2 Whether incompetence caused a miscarriage of justice/breach of natural justice
  3. 3 Whether new evidence met the criteria for admission under s.110(4) IRPA and Singh factors

Ratio Decidendi

Former counsel's failure to assist in preparing the initial BOC narratives and her inconsistent positions (supporting credibility at hearing but denying assistance and calling claim grossly unfounded on appeal) established incompetence; that incompetence produced the critical omission relied on by the RPD for an adverse credibility finding and thereby caused a miscarriage of justice warranting setting aside the RPD decision and remitting the claim for redetermination.

Court Disposition

Appeal allowed; RPD decision set aside; matter remitted to RPD for redetermination by a differently constituted panel

Orders

  • Allow appeal and set aside June 25, 2020 RPD decision
  • Remit claim to RPD for redetermination by a differently constituted panel