TB0-12167

RPD File No. / N° de dossier de la SPR : TB0-12167 Private Proceeding / Huis clos Application to Re-open Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Application to Reopen August 29, 2012 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision November 1, 2012 (in chambers) Date de la décision Panel J. M. Badowski Tribunal Counsel for the Claimant(s) Sayran Sulevani (Barrister and Solicitor) Conseil(s) du (de la/des) demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) du tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre [1] I have reviewed the application from counsel to re-open the claim of the applicant, dated August 29, 2012. Counsel submits that the applicant was given legal advice by incompetent counsel in preparation for her hearing before the Refugee Protection Division (RPD) on September 14, 2011, and this led to a denial "of a principle of natural justice."1 [2] The applicant met with her original counsel, Mr. XXXX XXXX XXXX, and completed her PIF on September 20, 2010.2 [3] The applicant again met with XXXX XXXX XXXX XXXX XXXX in March 2011. The applicant states that at that meeting her lawyer advised her that he had "been suspended by the Law Society."3 She states in her affidavit that she had asked her lawyer if she should hire another lawyer and that he advised her "...there was no need because he had taken the necessary steps, so I could go to the hearing alone."4 [4] The applicant waived solicitor-client privilege5 so that XXXX XXXX XXXX XXXX XXXX could respond to the allegations made against him. Counsel provided evidence from a courier company which indicates that a copy of the application was sent to XXXX XXXX XXXX XXXX XXXX but was undeliverable.6 The RPD also contacted the Law Society of Upper Canada (LSUC) in an attempt to locate XXXX XXXX XXXX XXXX XXXX and advise him of the allegations made against him, but was advised that his current location is unknown. As such, I have no response from XXXX XXXX XXXX XXXX XXXX to consider in this decision. [5] Counsel submitted that XXXX XXXX XXXX XXXX XXXX had faced a LSUC conduct proceeding on XXXX XXXX, 2010, and was suspended by the LSUC on XXXX XXXX, 2011.7 Counsel submits that any advice given to the applicant in March 2011 was "improper and negligent advice,"8 as he was suspended from practising law at that point in time. [6] The applicant was sent a Notice to Appear on July 20, 2011, advising her that her hearing was set at the RPD for September 14, 2011. [7] The applicant attended her hearing on September 14, 2011, and appeared without legal counsel to assist her. Counsel submits that the applicant was "denied the ability to be represented at her RPD hearing."9 [8] At her hearing, the presiding member advised the applicant that he was aware that XXXX XXXX XXXX XXXX XXXX was under suspension. He asked the applicant if she was aware of the suspension and she replied that she was aware of it. The presiding member asked the applicant when she had become aware of the suspension and she replied that she had become aware of it in March. Finally, the presiding member asked the applicant if she was "ready to proceed without counsel today?"10 The applicant responded that she was "ready to proceed without counsel."11 [9] The hearing was concluded and the presiding member sent a negative decision to the applicant on October 17, 2011. [10] Upon being notified of the negative decision in her case the applicant "told XXXX XXXX XXXX XXXX XXXX about the decision."12 The applicant states that he then filed an application for leave in her claim. The application for leave and judicial review was dismissed by Justice Kelen on February 8, 2012.13 [11] Upon being notified of the dismissed application for leave, the applicant again called XXXX XXXX XXXX XXXX XXXX for further advice.14 After receiving a "letter to report on August 14, 2012, to immigration"15 the applicant "knew at that point that XXXX XXXX XXXX XXXX XXXX could not help me any more."16 [12] The applicant then contacted current counsel and lodged a complaint against XXXX XXXX XXXX XXXX XXXX with the LSUC.17 [13] In determining whether or not to grant the applicant's request, I am bound by Rule 55 and must determine whether or not there has been a "failure to observe a principle of natural justice." [14] I find no persuasive evidence to support counsel's submission that a breach of natural justice has occurred in this claim. [15] The applicant met with XXXX XXXX XXXX XXXX XXXX to perfect a PIF and filed a claim while he was a practising lawyer. Subsequent to that meeting he was suspended by the LSUC. [16] The applicant met with XXXX XXXX XXXX XXXX XXXX, and despite being advised by him that he was under suspension, she took his advice. While I agree with counsel that XXXX XXXX XXXX XXXX XXXX should not have given any advice or direction to the applicant, the applicant was not bound by any advice or direction given to her. I have considered the educational level of the applicant and she is not an unsophisticated woman. Her PIF shows that she has 14 years of education, up to and including XXXX University. [17] Despite being advised of Mr. XXXX XXXX XXXX's suspension in March 2011, she did not seek a second legal opinion and appeared, six months later, at her hearing at the RPD without legal counsel. The record shows that the presiding member turned his mind to the fact that the applicant was appearing without counsel, and ensured that she knew that her former counsel was in fact suspended by the LSUC. The applicant had the opportunity to speak to the presiding member and express any concerns to him that she might have had about proceeding as an unrepresented claimant. She did not, and directly expressed that she was ready to proceed. [18] I note that the Board has no obligation to act as an attorney for a claimant appearing before it, nor does the Board have an obligation to advise a claimant that an adjournment should be sought for the purposes of obtaining counsel.18 While a claimant appearing before the Board has the right to obtain counsel at their own expense19 the right is not absolute.20 [19] Hence, although I agree with counsel that XXXX XXXX XXXX XXXX XXXX initial advice to the applicant was inappropriate, she had six months to seek a second legal opinion and/or obtain new counsel to appear with her at her hearing. As an educated woman, I find that she made a conscious choice to proceed without counsel. Further, she waived her right to counsel when she advised the presiding member that she was ready to proceed on her own at her hearing. I find no persuasive evidence has been placed before the Board to support counsel's submission that the applicant was "denied the ability to be represented at her hearing." [20] Despite knowing that XXXX XXXX XXXX XXXX XXXX was suspended from practising law, the applicant again sought him out for legal advice when her claim failed at the RPD. Although XXXX XXXX XXXX XXXX XXXX clearly should not have given her further advice, I cannot understand why she would return to a suspended lawyer for legal advice when her claim failed. Further, when her application to the Federal Court was also dismissed, she again sought out a suspended lawyer for legal advice, rather than seeking the advice of any other competent and practising lawyer in Ontario. [21] I find the applicant's decision to continue to seek the advice of a suspended lawyer bizarre and unexplained. I find that she had ample time after finding that he had been suspended by the legal regulatory body to seek legal advice from a practising lawyer before going to her hearing, and had a reasonable opportunity to seek proper legal advice from a competent lawyer before seeking judicial leave, or to obtain proper legal advice concerning her immigration status and removal from Canada. Her decision to continue to speak to a suspended lawyer was her own choice and does not support the allegation that there has been a failure to observe a principle of natural justice. [22] Minister's Counsel submits that the applicant is "forum shopping" and that the application is an "abuse of process."21 I agree with Minister's Counsel. Despite knowing that a suspended lawyer had given her legal advice as early as March 2011, and on several occasions thereafter, the applicant did not lodge a complaint with the LSUC until August 2012. Further, I agree with Minister's Counsel that the application to re-open due to counsel's alleged incompetence was not made at the first opportunity, but rather, was made almost one year after the failure of the claim. [23] After a careful review of the facts and allegations made in this claim I find that the applicant has not established that there has been a failure to observe a principle of natural justice. [24] The application to re-open the claim is dismissed. (signed) "J. M. Badowski" J. M. Badowski November 1, 2012 Date REFUGEE PROTECTION DIVISION / APPLICATION TO REOPEN / INCOMPETENCE OF COUNSEL / UNREPRESENTED CLAIMANT / NATURAL JUSTICE / FEMALE / NEGATIVE / GHANA 1 Application to re-open: Paragraph (a). 2 Personal Information Form (PIF) of the applicant. 3 Affidavit of the applicant: Paragraph 26. 4 Ibid. 5 Authorization signed by the applicant October 12, 2012. 6 Delivery papers from XXXXXX Courier dated October 12, 2012; letter from counsel dated October 15, 2012. 7 Application to re-open: Page 56. 8 Application to re-open: Paragraph 4. 9 Application to re-open: Paragraph 5. 10 Application to re-open: Page 123. 11 Ibid. 12 Affidavit of the applicant: Paragraph 31. 13 Application to re-open: Exhibit "D". 14 Affidavit of the applicant: Paragraph 32. 15 Ibid. 16 Ibid. 17 Application to re-open: Exhibit "E". 18 Concepcion, Ferdinand v. M.C.I. (F.C., no. IMM-3098-06), Hughes, April 18, 2007, 2007 FC 410. 19 Immigration and Refugee Protection Act: Section 167. 20 Pierre v. Canada (Minister of Manpower and Immigration), [1978] 2 F.C. 849 (F.C.A.). 21 Submissions from the Minister dated September 24, 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (May 18, 2010) Disponible en français RPD.15.7 (May 18, 2010) Disponible en français RPD File No. / N° de dossier de la SPR : TB0-12167 RPD File No. :TB0-12167