VB5-00553

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : VB5-00553/4/5/6/7/8 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appeal considered at Vancouver BC Appel instruit à Date of decision October 16, 2015 Date de la décision Panel Gordon C McRae Tribunal Counsel for the person(s) who is(are) Alexandra Mann Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, (the "principal appellant"), XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX (the "minor appellants") and XXXX XXXX (the "associated appellant") all citizens of Pakistan, appeal the decision of the Refugee Protection Division (the "RPD") issued verbally on January 20, 2015, with the written Notice of Decision issued on February 5, 2015 denying their claims for refugee protection. [2] New evidence has been submitted pursuant to section 110(4) of the Immigration and Refugee Protection Act (the "Act")1 and Rule 29 of the Refugee Appeal Division Rules (the "RAD Rules").2 The appellants seek to have the new evidence entered in their appeal to the Refugee Appeal Division (the "RAD"). [3] The appellants have not sought a hearing pursuant to section 110(6) of the Act. [4] The appellants do not specifically set out what decision they want the RAD to make,3 but it is clear from reading counsels memorandum that the appellants are seeking to have the RAD set aside the determination of the RPD. Section 111 of the Act sets out the three findings the RAD is statutorily empowered to come to. The appellants have not asked the RAD to come to any specific finding beyond setting the RPD decision aside. [5] A copy of the Appellant's Record (AR) was provided to the Minister on March 31, 2015 with additional appellant documents being provided on August 4, 20154 and August 10, 2015.5 The Minister has not responded and so it is deemed that the Minister is not intervening in this appeal. DETERMINATION [6] Pursuant to section 111(1)(a) of the Act the RAD confirms the decision of the RPD that the appellants are neither Convention6 refugees nor persons in need of protection. The appeal is dismissed. BACKGROUND [7] The principal appellant joined the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX operations in XXXX 2005. He moved from Islamabad to XXXX in XXXX 2005 to take up his new duties. In this position he worked in co-operation with the XXXX XXXX, other Non-Governmental Organizations (NGO's), the XXXX XXXX XXXX XXXX XXXX XXXX and the XXXX of other western allies. [8] In XXXX 2006 the principal appellant received a phone call from a man who identified himself as XXXX XXXX XXXX. He told the principal appellant that he must stop working for the XXXX and if he did not he would kill him and his family. [9] A week later the principal appellant received another call from the same man. He angrily told him again to stop working for the XXXX and the XXXX and its allies or he and his family would be killed. The principal appellant refused to be intimidated and told the caller that he was not working for western countries but rather was serving humanity by XXXX XXXX XXXX XXXX XXXX. [10] The next morning he was walking in a remote area when he was confronted by three individuals who claimed to be Taliban. They started yelling at him about his working for the XXXX and XXXX XXXX and chastised him for his western appearance. They tried to stop him on several later occasions, but in spite of the fact they threatened to kill him and his family, the principal appellant continued his relief work with the XXXX, et al. [11] He reported the threat to his XXXX superiors and received XXXX protection while travelling and conducting XXXX business. Although he was not approached again while receiving this protection he did continue to receive threatening phone calls. [12] The principal appellant's family moved to XXXX to join him in XXXX 2006. On XXXX XXXX, 2006 the associated appellant, her infant and two and a half year old child were walking home from school when she was approached by two men who told her to tell her husband to stop his work with the XXXX. They told her that they should be Muslim like them and not appear westernized by dressing in western clothes and that the children should be withdrawn from English school and enrolled in Islamic studies. They threatened to kill the family if they did not comply. [13] That evening the principal appellant received a call from XXXX XXXX XXXX asking if he had received the message. The principal appellant became angry because now they were harassing his family. He told XXXX XXXX XXXX that he would never follow their rules. [14] On XXXX XXXX, 2006 after attending a farewell lunch for the XXXX XXXX at the XXXX XXXX, the principal appellant returned home. Upon arriving at home around 6:30 pm two men, shouting and using abusive language, starting shooting firearms in the air. They called the principal appellant by name and called him a traitor. [15] The principal appellant informed XXXX security officials about the incident and they directed him to the local police. He went to the police but they would not listen to him unless he paid a 100,000 Pakistani rupee bribe. [16] After this incident the appellants moved back to Islamabad. The threats via telephone continued. [17] On XXXX XXXX XXXX 2007 the principal appellant had his vehicle shot at by two men in another vehicle who were dressed in traditional garb. Fortunately he was not injured and was able to escape. [18] As a result of all the negative happenings the principal appellant resigned from the XXXX on XXXX XXXX, 2007. He and his family moved to XXXX on XXXX XXXX, 2008 for an employment opportunity for the principal appellant. On XXXX XXXX, 2013 the principal appellant organized a seminar for the XXXX XXXX XXXX XXXX. His involvement was XXXX XXXX XXXX XXXX XXXX. The local Taliban and Al-Qaeda groups became aware of his involvement and started threatening him and his family with kidnapping and/or death. [19] A "hit man" named XXXX XXXX was hired to kill the appellants. He is the cousin of XXXX XXXX XXXX who initially threatened the principal claimant back in XXXX 2006. This made it very difficult for the appellants to remain in XXXX and so the principal appellant resigned from his job and returned to Islamabad Pakistan. [20] The move back to Pakistan did not stop XXXX XXXX from contacting the principal appellant and trying to extort money from him by threatening him and his family. He also phoned the principal appellant's father and brother, threatening the entire family. The principal appellant filed a police report against XXXX XXXX. [21] In XXXX 2014 his car was fired upon by unknown assailants. Their eldest son, XXXX, was almost kidnapped off the street. The principal appellant believes that these two incidents were associated to the problems he was having with the extremists. [22] The appellants came to Canada on or about XXXX XXXX, 2014 and claimed refugee protection on or about October 2, 2014. ISSUES [23] The appellants have identified the following issues in support of their applications to have the RAD set aside the RPD decision. 1) Did the appellants' former counsel's incompetence constitute a breach of procedural fairness in that it undermined the appellants' ability to fully present their case to the RPD? NEW EVIDENCE7 [24] The appellants made an application under RAD Rule 29 to have the following documents entered into evidence at this RAD appeal: 1) Affidavit of XXXX XXXX XXXX dated August 5, 2015. 2) Law Society of XXXX - Lawyer Complaint Form - submitted by XXXX XXXX XXXX XXXX Subject of complaint - XXXX XXXX of the law firm XXXX XXXX XXXX XXXX XXXX dated XXXX XXXX, 2015. 3) Response to complaint from XXXX XXXX dated June 19, 2015. 4) Response to complaint from XXXX XXXX dated June 19, 2015. 5) Response of XXXX XXXX to Mr. XXXX and XXXX letters of June 19, 2015, dated July 9, 2015. 6) Letter dated July 17, 2015 from XXXX XXXX to XXXX XXXX requesting that Mr. XXXX consent to have his response to the Law Society complaint forwarded to the RAD. 7) Letter dated July 17, 2015 from XXXX XXXX to XXXX XXXX requesting that Mr. XXXX consent to have his response to the Law Society complaint forwarded to the RAD. 8) Letter dated July 27, 2015 from XXXX XXXX to XXXX XXXX referencing her July 17, 2015 letter and asking if Mr. XXXX consents to having his response to the Law Society complaint forwarded to the RAD. 9) Fax dated July 20, 2015 from XXXX XXXX to XXXX XXXX dated July 20, 2015 consenting to having his response to the Law Society complaint forwarded to the RAD. 10) Fax dated July 27, 2015 to XXXX XXXX from XXXX XXXX consenting to having his response to the Law Society complaint forwarded to the RAD. The appellants made an application under section 110(4) of the Act to have the following affidavit accepted as new evidence in this appeal. In counsel's memorandum,8 she requests that this affidavit which contains details of the alleged events that were omitted from the appellants' original Basis of Claim (BOC) narratives as a result of counsel incompetence conforms to the requirements of section 110(4) of the Act. 11) Affidavit of XXXX XXXX XXXX dated March 26, 2015. THE ROLE OF RAD [25] The appellants' counsel made submissions with respect to the standard of review the RAD should apply to the assessment of the RPD decision.9 In the opinion of counsel the proper standard of review is correctness. [26] While the Act sets out grounds for appeal, as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the RPD. The first Federal Court (the "Court") review of a RAD decision was Iyamuremye v Canada10 in May 2014. Since that time there has been a number of Court decisions rendered. It is fair to say that, to a large extent, the Court is not of one mind as to the standard of review that the RAD should apply. The majority of decisions have made one thing clear, however, and that is the RAD should not apply "reasonableness" as its standard of review. Until such time as the Federal Court of Appeal (the "FCA") brings more clarity to the standard of review issue, I take the Court's direction on this issue and do not apply the standard of reasonableness to this appeal. [27] I have examined the various Court decisions regarding the role of the RAD and find that the process of a hybrid appeal proposed by Mr. Justice Phelan in Huruglica11 is consistent with the common thread found in the majority of the Court decisions that state the RAD must comprehensively review the available relevant evidence when assessing the RPD's findings and come to an assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [28] Mr. Justice Phelan determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [29] In keeping with the majority of the Court's findings, I undertook to examine and review all the evidence in the RPD Record and conducted my own independent assessment of the evidence and came to my own conclusion based on that evidence applying the standard of correctness. ANALYSIS Admissibility of New Evidence Presented On Appeal [30] Section 110(3) of the Act states the RAD may accept documentary evidence and written submissions from the Minister and the person who is subject of the appeal. Section 110(4) of the Act directs that the person subject of the appeal may only present evidence that arose after the rejection of their claim or evidence that was not reasonably available, or that the person could not have reasonably been expected in the circumstances to have presented at the time of rejection. [31] Madam Justice Gagné found in the matter of Singh12 that section 110(4) of the Act must be applied by the RAD with sufficient flexibility so as not to hinder the full fact-based appeal the RAD is ". . . mandated to conduct." Mr. Justice Barnes strongly endorsed this finding in Sow.13 [32] Many RAD Members have applied the criteria set out in Raza v Canada14 as the standard for the acceptance of new evidence. Raza dealt with a pre-removal risk assessment (PRRA) but the wording in the legislation enshrines the same legal test as set out in section 110(4). In Raza the FCA identified credibility, newness, relevance, and materiality as issues to be considered. As with the RAD standard of review issue, there is no comity within the Court on this issue. Mr. Justice Mosley stated in Denbel v Canada:15 [42] In Khachatourian above16 at para 37, Justice Simon Noël expressed reservations about the propriety of transposing Raza to the RAD context, referring to the analysis of Justice Gagné in Singh v. Canada . . . . Once again I respectfully disagree . . . . [43] When interpreting legislative intent, the Court must give priority to the written text in the absence of any lexical ambiguity. The Court's opinions on best policy cannot supplant the text of the law; nor can select passages from the Hansard. In my view, Parliament intended these two provisions to enshrine the same legal test. If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs. [33] Competing findings such as this, both binding on the RAD, place RAD Members on the "horns of a dilemma". [34] Until such time as the FCA brings clarity to this issue, when applying the conditions for new evidence as set out in section 110(4) of the Act and section 29(4) of the RAD Rules, I will consider whether exclusion of the proposed evidence would hinder a full fact based review of the appeal, and at the same time, will respect and apply the legislation that governs the acceptance of new evidence. If applied properly I do not find these two guiding principles to be mutually exclusive. [35] This appeal is somewhat unique in that the appellants are not taking exception with the finding of the RPD. Counsel states in her memorandum that the narrative clearly did not include the necessary information for a successful refugee protection claim.17 The reason the appellants give for not presenting a fulsome claim to the RPD, is that they were the victims of incompetent counsel. This is the basis for their appeal. [36] I have conducted an independent review of the RPD Record (RPDR) which included listening to the audio recording of the hearing in its entirety and, combined with the fact the appellants have raised no issues with the RPD decision and reasons, I find no reason to delve into the analysis of the RPD that resulted in the rejection of this claim. [37] The new Exhibit 11 deals with evidence of the alleged harm the appellants fear in Pakistan. The attachments are already entered as evidence in this appeal as part of the RPDR and therefore section 110(4) is not applicable. This leaves the affidavit. Counsel submits that it meets the criteria of section 110(4) because there is no basis for questioning its credibility; it is relevant as it directly relates to the issue of whether the appellants had a fair hearing before the RPD and whether they are at risk of persecution from Islamic extremists in Pakistan. Counsel submits the proposed new evidence is capable of contradicting the Panel's negative credibility finding wherein it determined that the appellants had failed to establish a nexus to a Convention ground. I disagree. [38] Counsel has set out the criterion that needs to be addressed for a hearing under section 110(6) of the Act and not the criteria when determining whether to accept the new evidence. Section 110(4) governs the acceptance of new evidence and stipulates that the evidence must have arisen after the rejection of the claim or that was not reasonably available, or that the person subject of the appeal could not reasonably have been expected in the circumstances to have presented. [39] This evidence was available to the appellants before their RPD hearing. In fact the principal appellant testified to many of these issues at his hearing. The result is that the majority of the evidence contained in the affidavit, if not all of it, is also before the RAD in the RPDR and as a result section 110(4) does not apply to the affidavit either. It is the weight placed on this evidence by the RPD that is the issue for the principal appellant. Additionally this evidence does not deal with counsel incompetence as identified by the appellants as the only issue in this appeal. Rejecting this evidence does not hinder the full fact-based appeal the RAD is mandated to conduct. I therefore reject the proposed new Exhibit 11 for this appeal. [40] The issue for the RAD is whether the appellants were the victims of incompetent counsel, and if so, did the incompetent representation of their claim constitute a breach of procedural fairness? New evidence in support of this allegation is unquestionably relevant. [41] The documents to support the allegation of counsel incompetence obviously were not available prior to the hearing as the alleged incompetent representation had not yet occurred and hence, I find they meet the requirements set out in section 110(4) of the Act. Section 29(4) of the RAD Rules set out considerations for accepting the evidence. In this case the proposed new evidence is relevant, brings new evidence to the appeal, and as stated above was not available to the appellants prior to the RPD hearing. [42] I accept the appellants explanation that the complaint process for the Law Society of XXXX is confidential, and permission of the subject of the allegations is needed before any documents can be released to a third part, such as the RAD. Obtaining this authority took time and I accept that the appellants undertook to get the relevant information to this RAD as quickly as they could. [43] I find that proposed new evidence identified as Exhibits 1 to 10 inclusive, meet the criteria for new evidence as set out in the Act and RAD Rules and therefore accept them as evidence in this appeal. RAD HEARING [44] Section 110(3) of the Act directs the RAD, with certain exceptions, to proceed without a hearing on the basis of the record of proceedings from the RPD. Section 110(6) states the RAD may hold a hearing if, in its opinion, the documentary evidence referred to in section 110(3): a. raises a serious issue with respect to the credibility of the person who is subject of the appeal; b. is central to the decision with respect to the refugee protection claim; and, c. if accepted, would justify allowing or rejecting the refugee protection claim. [45] The appellants have not asked for a hearing as set out in section 110(6) of the Act. The accepted new evidence does not deal with the credibility of any of the appellants, and was not central to the decision which, as stated above, is not being challenged. [46] The criteria set out above are conjunctive and so I find that the criterion for a hearing has not been met in this matter. I further find that a hearing is not necessary, as the new evidence relating to counsel incompetence has been accepted and speaks for itself. The evidence will be considered by the RAD in this appeal. INCOMPETENCE COUNSEL ANALYSIS [47] This is the determinative issue in this appeal. [48] The claim of incompetent representation by counsel is not restricted to administrative tribunals such as the RPD. The claim is applicable across the spectrum of legal and quasi legal processes. Factors to be considered when analyzing such an allegation can be found in the decisions of various courts. [49] In the criminal matter of Regina v Le heard in the Manitoba Court of Appeal (the "MCA),18 the MCA clearly identified the components needed for a successful incompetency claim. I list them below: 1) The Factual Component: an appellant must establish, on the balance of probabilities, the facts on which the claim of incompetency is based. If that is not established, there is no need to go any further. 2) The Prejudice Component: if the factual foundation has been made out, the Court will, for the purposes of this component, assume incompetence on the part of counsel. See Joanisse at p. 62, Doherty J.A.19 At this stage, an appellant must establish, on a balance of probabilities, that the presumed incompetence resulted in a miscarriage of justice. If it did not, there is no need to go any further. 3) The Performance Component: If it is determined that the reliability of the verdict was affected by the presumed incompetence, the Court will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption reverts to "a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance" and the onus falls on the appellant to establish that it did not (G.D.B. at para . 27).20 Again, that analysis is conducted without the benefit of hindsight. [50] I find that these criteria are applicable in determining the matter before me and I applied them in my analysis. [51] The principal appellant alleges that Mr. XXXX failed to provide the appellants with competent representation before the RPD, resulting in the appellants not presenting a fulsome claim and because of this their claims were rejected. [52] The principal appellant states he specifically told Mr. XXXX that he had included false information in his complaint to the police about XXXX XXXX in an unsuccessful attempt to obtain state protection. This information was not included in his BOC statement and the RPD made a negative credibility finding as a result of the omission. [53] The principal appellant alleges that he was instructed to write his BOC narrative. He did so and submitted it to Mr. XXXX. When he met with Mr. XXXX his narrative was virtually unchanged. [54] The principal appellant alleges he told Mr. XXXX about his continued outspokenness, from 2004/05 to 2014, regarding humanitarian issues that angered the fundamentalists and placed him and his family in danger. He alleges he also told Mr. XXXX additional details regarding threats he received from Islamic extremists in XXXX none of which were included in his BOC narrative. When he enquired of Mr. XXXX if the narrative was sufficient as he noted it did not contain all the details they discussed, he was advised by Mr. XXXX that it was sufficient. [55] The RAD notes, however, that the RPD told the principal appellant that his evidence and what he had written in his BOC were not consistent. The RPD gave the principal appellant an opportunity to explain why there was no mention of his alleged ongoing activism, from 2005 until 2014, in his BOC as he had testified to. If the principal appellant did not put this information in his BOC at the instruction of his counsel (either Mr. XXXX or Mr. XXXX) this was his opportunity to tell the RPD, however, he did not advise the RPD that he omitted it on instructions of his counsel. He initially gave a vague response about serving humanity since 2005 and when the question was again posed to him he testified that he only had proof of speaking at one seminar and so didn't mention other venues he spoke at.21 The proof he had was a XXXX XXXX that he entered as an exhibit at his hearing.22 To suggest at this appeal that he did not include this information at the instruction of counsel, when he had an opportunity at his hearing to explain this, certainly weakens his argument of counsel incompetence before the RAD. [56] The principal appellant states he had great difficulty arranging a meeting with Mr. XXXX and when he finally did get a meeting December 1, 2014, it was apparent to him that Mr. XXXX was not prepared. He does not say what led him to come to this conclusion. [57] They had a dispute over the paying of legal fees and Mr. XXXX withdrew as counsel. The monetary issue was resolved and at the principal appellant's pleading Mr. XXXX agreed to represent him at his RPD hearing that was scheduled for December 4, 2014. The matter was later administratively postponed to January 20, 2015. [58] The principal appellant states he made several attempts to contact Mr. XXXX about revising his narrative. He could not secure a meeting until January 13, 2015 and was advised by Mr. XXXX that he felt it would not be a good idea to revise his narrative at this late date as it might cause the Minister to intervene. [59] The principal appellant states their claims were rejected primarily due to the lack of detail in the BOC narrative. He feels if he had competent legal representation the missing detail would have been in his narrative and the outcome of the RPD hearing would have been different. [60] The jurisprudence sets out that there is a strong presumption of competence in favour of counsel and that, appeals are not intended to be forensic autopsies of counsel's performance at trial.23 The appellants thus have the onus of overcoming this presumption regarding counsel's competence. [61] In his response to the Law Society24 Mr. XXXX states that he is an experienced counsel in the area of refugee law, having had experience with the Immigration and Refugee Board (the "IRB") as a Refugee Protection Officer (RPO) and as counsel representing many refugee protection claimants before the RPD. [62] Mr. XXXX articled under Mr. XXXX (no date given) and has represented clients at every division of the IRB and before the Federal Court. I conclude that he too has significant experience in refugee law. [63] Mr. XXXX stated he and Mr. XXXX discussed the principal appellant's BOC form and Mr. XXXX identified his concerns with the narrative supplied by the principal appellant to Mr. XXXX. Mr. XXXX confirmed with Mr. XXXX the accurate documentation of the principal appellant's story. He also advised Mr. XXXX of his attempt to elicit additional corroborative details. Any documents they received they forward to the IRB for inclusion as evidence at the RPD hearing. [64] Mr. XXXX and/or Mr. XXXX made many attempts to ascertain all the details relevant to the appellant's claim and ensure they were included in his BOC form. In spite of their attempts it was Mr. XXXX opinion that there were a number of "holes" in the story that Mr. XXXX was unable to explain to his counsel, let alone the RPD. [65] Mr. XXXX personally prepared the principal and associated appellants for the hearing by identifying potential areas of concern and potential questions that might be asked by the RPD. [66] In Mr. XXXX response to the Law Society of XXXX25 he states that he does not recall being advised of any details being omitted from the BOC narrative. He states all relevant details were included in the BOC narrative and all documents provided were reviewed. This included information that was not mentioned at the first few meetings but arose in later meetings. [67] Mr. XXXX states he explained how a refugee determination is made and helped the principal and associated appellants to understand what type of incidents and or facts would be relevant. [68] It is appears that the solicitor/client relationship between Mr. XXXX and the appellants, at times, was "strained" as evidenced by the issue over payment of legal fees. Nonetheless fully aware of the problems with their former counsel leading up to the RPD hearing, the appellants wanted their former counsel to represent them at the RPD hearing. Mr. XXXX agreed to represent the appellants and certain professional obligations go along with that, not the least of which is effective representation before the court or tribunal. The right of effective representation was confirmed by the Supreme Court of Canada26 and applies to these appellants. It is the appellant, however, who bears the onus of submitting evidence to establish the factual foundation underlying the allegation.27 [69] While analyzing the factual component of this case, I examined the evidence as it related to the allegation of counsel incompetence. [70] The only issue the two parties agree on is that Mr. XXXX advised the appellants not to amend their BOC narrative given the timing the amendment would be received by the IRB in relation to the scheduled RPD hearing, it was Mr. XXXX opinion that the late amendment could trigger the Minister's intervention and move the hearing from being inquisitory to being adversarial. Mr. XXXX did not feel this would serve his clients' best interests. This was a professional decision made by Mr. XXXX and does not represent counsel incompetence. [71] The principal appellant states in his response to the Law Society28 that in response to questions by the RPD, he testified to his continued outspoken views in his home country and the fact that this would lead to him being persecuted, but it never occurred to him to include this information in his BOC narrative. His testimony in this regard is confirmed in my review. I note that the instructions in the BOC under the heading: WHY YOU ARE CLAIMING REFUGEE PROTECTION29 (emphasis in original) state in part: . . . INCLUDE EVERYTHING THAT IS IMPORTANT TO YOUR CLAIM . . . (emphasis in original). [72] The principal and associated appellants both speak and read English, neither required that the BOC be interpreted for them and both signed their respective BOC forms. It is reasonable to conclude that they were aware of this requirement/instruction regarding their narrative. [73] Given the evidence presented to the RPD by the principal appellant it is difficult to understand why he would not think this information should not be included in his BOC statement. Even if I accept that he did not feel it needed to be included, then it is not reasonable he would seek a meeting with counsel to discuss amending his BOC narrative to include this information, as he had not thought to include it in the first instance. There is no evidence of any change in circumstance that would have caused him to now think to include this evidence. [74] The principal appellant states he met with Mr. XXXX on December 1, 2015, three days before their scheduled RPD hearing. He alleges that Mr. XXXX was not prepared for this meeting as he did not know the facts of the case, but he does not offer any evidence that would support his conclusion. He does not give examples of relevant facts that Mr. XXXX was not aware of or how the principal appellant came to the conclusion he was unaware of those relevant facts. The subjective belief of the principal appellant is insufficient to overcome the presumption of competence of counsel. [75] I do not expect original counsel or the principal appellant to have perfect recall as to what was discussed at their meetings. I do expect that they would have accurate recall of the issues that are germane to the principal appellant's claim of counsel incompetence as these matters go to the heart of this appeal. [76] Upon reviewing the evidence I find, to use the vernacular, this is a classic case of "he said, she said". The former counsel state that they represented the appellants in their claims for refugee protection to the best of their abilities and that their representation met the professional standards as expected by their profession. They conducted the necessary pre-hearing interviews, documenting relevant details of the appellants claim, seeking and documenting, wherever possible further information in areas where the claim appeared weak. In spite of their best efforts Mr. XXXX was of the opinion there were areas in the principal appellant's story that he could not offer an explanation for. [77] The principal appellant states that Mr. XXXX contention that he prepared the appellants for their RPD hearing is "laughable".30 He also denies Mr. XXXX statement that the BOC narrative was completed based on information the principal appellant supplied during their meetings. [78] The appellants offer no proof of their allegations other than their oral evidence. [79] As the evidence now stands the RAD has nothing more than counsel stating one thing and the principal appellant stating another. This is insufficient evidence to establish, on the balance of probabilities, the factual component required in a successful counsel incompetence allegation. Having come to this finding I need go no further. [80] I find that the appellants have failed, on the balance of probabilities, to provide the necessary factual foundation to establish their claim of counsel incompetence. As this is the sole basis for their appeal before the RAD, I find that this finding is determinative of the appeal. DECISION [81] Pursuant to section 111(1)(a) of the Act, the RAD confirms the decision of the RPD that the appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "Gordon C. McRae" Gordon C. McRae October 16, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Appeal Division Rules (the "RAD Rules"), SOR/2012-257. 3 See RAD Rule (3)(g)(iv): (3) Content of apellant's record - The appellant's record must contain the following documents, on consecutively numbered pages, in the following order (g) a memorandum that includes full and detailed submissions regarding (iv) the decision the appellant wants the Division to make. 4 Refugee Appeal Division (RAD) Exhibit, 4.1. 5 RAD Exhibit, 4.2. 6 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 7 RAD Exhibit 4.1, Items 1 to 10. 8 RAD Exhibit 3, p. 184, para. 4. 9 RAD Exhibit 3, p. 192. 10 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 11 Huruglica v Canada (Citizenship and Immigration), 2014 FC 799. 12 Singh v Canada (Citizenship and Immigration), 2014 FC 1022 13 Sow v Canada (Citizenship and Immigration), 2015 FC 295. 14 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 15 Denbel v. Canada (Citizenship and Immigration), 2015 FC 629. 16 Khachatourian v. Canada (Citizenship and Immigration), 2015 FC 182. 17 RAD Exhibit 3, p. 184. 18 Regina v. Le (T.D.), 2011 MBCA 83, M.J. No. 319 2011, para. 189. 19 R. v. Joanisse, 1995 CanLII 3507 (ON CA), 102 CCC (3d) 35. 20 R. v. G.D.B., [2000] 1 SCR 520, 2000 SCC 22. 21 RAD Exhibit #2 - audio recording - 00:19:20 to 00:23:45 22 RAD Exhibit #1.2 page 454 23 Regina v. Le (T.D.),2011 MBCA 83, M.J. No. 319 2011, para. 159 and 179. 24 RAD Exhibit 4.1, pp. 38 and 39, RAD Exhibit 4.2. 25 RAD Exhibit 4.1, pp. 40 and 41. 26 Regina v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; p. 24. 27 Regina v. Le [2011] M.J. No. 319; para. 178. 28 RAD Exhibit 4.1, pp. 44 to 46. 29 RAD Exhibit 1.1, p. 10. 30 RAD Exhibit 4.1, p. 45, para. 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB5-00553/4/5/6/7/8 RAD File No. / N° de dossier de la SAR : VB5-00553/4/5/6/7/8