TB9-18862

TB9-18862

On the balance of probabilities the cumulative acts and omissions of RPD counsel amounted to inadequate representation and, because the inadequacy likely caused or materially contributed to the RPD's adverse credibility findings and deprived the Appellants of a fair hearing, a breach of natural justice occurred; because the record is tainted and the RAD cannot fairly substitute its own decision, the proper remedy is to allow the appeals and refer the matters back to the RPD for redetermination by a differently constituted panel with instructions to remove defective materials and obtain fresh BOCs/narratives.

Citation
TB9-18862
Parties
Principal Appellant: XXXX XXXX XXXX XXXX; Spousal Appellant: XXXX XXXX XXXX XXXX XXXX; First Minor Appellant: XXXX XXXX XXXX XXXX; Second Minor Appellant: XXXX XXXX XXXX XXXX; Third Minor Appellant: XXXX XXXX XXXX XXXX
Court
Refugee Appeal Division
Jurisdiction
Canada
Judgment Date
28 January 2020
Procedural Posture
Refugee Appeal / Decision on Appeal by Refugee Appeal Division
Outcome
Appeals allowed and matters referred back to the Refugee Protection Division for redetermination by a differently constituted panel
Legal Topics
Ineffective Assistance of Counsel, Admissibility of New Evidence, Credibility Findings, Referral for Redetermination, Natural Justice
Source Language
English
Immigration Law Refugee Law Administrative Law Procedural Fairness Ineffective Assistance of Counsel Admissibility of New Evidence Credibility Findings Referral for Redetermination +1 more

Case Brief

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Parties

XXXX XXXX XXXX XXXX

Principal Appellant

XXXX XXXX XXXX XXXX XXXX

Spousal Appellant

XXXX XXXX XXXX XXXX

First Minor Appellant

XXXX XXXX XXXX XXXX

Second Minor Appellant

XXXX XXXX XXXX XXXX

Third Minor Appellant

Procedural Posture

Refugee Appeal / Decision on Appeal by Refugee Appeal Division

Legal Issues

  1. 1 Whether RPD counsel's conduct amounted to inadequate representation
  2. 2 Whether inadequate representation resulted in a breach of natural justice
  3. 3 Whether newly submitted evidence meets s.110(4) IRPA and Singh/Raza factors

Ratio Decidendi

On the balance of probabilities the cumulative acts and omissions of RPD counsel amounted to inadequate representation and, because the inadequacy likely caused or materially contributed to the RPD's adverse credibility findings and deprived the Appellants of a fair hearing, a breach of natural justice occurred; because the record is tainted and the RAD cannot fairly substitute its own decision, the proper remedy is to allow the appeals and refer the matters back to the RPD for redetermination by a differently constituted panel with instructions to remove defective materials and obtain fresh BOCs/narratives.

Court Disposition

Appeals allowed and matters referred back to the Refugee Protection Division for redetermination by a differently constituted panel

Orders

  • Original BOCs, BOC amendments and narratives provided at the first RPD hearing to be removed from the Appellants' records
  • The first RPD decision dated 5 July 2019 to be removed from the Appellants' records