TB7-23485

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 / Dossier de la SAR : TB7-23485 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 15, 2018 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are) the subject of the appeal Peter Lulic Barrister and Solicitor Conseil(s) (de la/des) 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 (the "Appellant"), a citizen of China, appealed a decision of the Refugee Protection Division (RPD) dated October 17, 2017, rejecting his claim for refugee protection. DETERMINATION [2] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellant joined a Falun Gong practice group in April 2015. Shortly thereafter, the practice group was raided and the Appellant fled. He left China on February XXXX, 2016 and made a claim for refugee protection on February 29, 2016. [4] At the first RPD sitting on September 28, 2018, Counsel of record, Counsel Grachev was not present. The Appellant stated that he had 'invited' Mr. Cheng to attend on his behalf. However the hearing was adjourned after a few minutes because the Appellant did not have translated copies of his identity documents. [5] At the second sitting of October 12, 2017, although no counsel appeared with the Appellant, the hearing proceeded to conclusion. [6] The appeal is based on the manner in which the RPD dealt with the issue of the absence of counsel and whether proceeding with the hearing in the absence of counsel amounts to a breach of procedural fairness. It is submitted on appeal that there is no indication that the RPD informed the Appellant: a) that the Appellant has a right to be represented by counsel if he so chooses or b) that after being informed of that right, the Appellant may knowingly proceed without counsel. The RPD had not received an application for removal of the Counsel of Record. RAD's FINDINGS [7] Having listened to an audio recording of the first sitting which took place on September 28, 2018, the RAD finds that the Appellant informed the RPD that Mr. Grachez had never met with him and that, in fact, Mr. Cheng had been 'invited' to represent the Appellant. However, the Appellant's identity documents had not been translated into English so the RPD decided that the hearing would be adjourned and reconvened in two weeks in order to allow for the documents to be translated. The date of October 12, 2018 was set as the resumption date together with the agreement of Mr. Cheng and the Appellant. The first sitting concludes as follows: PRESIDING MEMBER: We're going to put this matter over for two weeks and in that time, sir, you need to get all of your documentation that you plan to have in evidence into the Board. Two weeks from - you know I'm actually rather frustrated at this because you filed your claim in the end of February, 2016. That's a year and half ago and there are no documents before this Board. So this is completely unacceptable. CLAIMANT: So at the time when I submitted those identity documents to the person in charge and then they were on the phone. Then I brought this back home so it was my fault. PRESIDING MEMBER: Okay. Either way you need to speak to whomever is representing you and get your documents into the Board. I'm putting this off for two weeks. Let's schedule for the afternoon of October 12th. Mr. Cheng, will you be attending that hearing? COUNSEL: I will. PRESIDING MEMBER: You know that? Are you - you have carriage of this matter now? COUNSEL: Yeah, I know so it's better I take it on my hands so --- PRESIDING MEMBER: I'm sorry? COUNSEL: Yeah, I'm going to attend this. PRESIDING MEMBER: So is Mr. Grachev no longer counsel? COUNSEL: I'm going to talk with him but since the situation is like this, it's better - I understand the situation and I'll come. PRESIDING MEMBER: So if there's a change of representative, be sure to alert the Board please. COUNSEL: Sure, I will. PRESIDING MEMBER: If you're attending, is the afternoon slot on October 12th open for you? COUNSEL: Yes. [8] The hearing recommenced on October 12, 2018 as follows: PRESIDING MEMBER: What is your name? CLAIMANT: XXXX, XXXX. PRESIDING MEMBER: Okay. Sir, what did - do you have a lawyer? CLAIMANT: Yes, I do. PRESIDING MEMBER: Okay. Who is that? CLAIMANT: The name of this guy is (inaudible), he was here with me last time. I asked him to find a lawyer for me. PRESIDING MEMBER: You asked him to find a new lawyer for you? CLAIMANT: Well, last time when I - at the last sitting, I retained him as my lawyer. PRESIDING MEMBER: Mm-hmm. Okay. I'm, I'm asking you this just to try and figure out what's going on. You're not in trouble so just let me know what's happening. CLAIMANT: What do you mean? PRESIDING MEMBER: No, I want you - I want to figure out why you don't have a lawyer here representing you today? What did Mr. Cheng (ph) tell you? CLAIMANT: He said he has before the Board and that he's not going to come here today and I agreed because he said he has something urgent to do today, all of a sudden. PRESIDING MEMBER: When did he do that, do you know? CLAIMANT: A few days ago. PRESIDING MEMBER: What about Mr. Grachev, is that your lawyer too? CLAIMANT: I don't know. Mr. Cheng is - it's up to Mr. Cheng to communicate with me and the lawyer. PRESIDING MEMBER: So did Mr. Cheng think that you were going to have your hearing today? CLAIMANT: Mr. Cheng told me to proceed by myself without the lawyer. PRESIDING MEMBER: Okay. Does Mr. Cheng - does that mean that Mr. Cheng is no longer representing you? CLAIMANT: I just want to proceed by myself. PRESIDING MEMBER: So do you no longer have a relationship with Mr. Cheng or Mr. Grachev? CLAIMANT: Right. PRESIDING MEMBER: Okay. So you no longer have a lawyer? CLAIMANT: Right. PRESIDING MEMBER: Okay. I just want to take a very short break to see if we received any letter from Mr. Cheng. CLAIMANT: Yes. /////// PRESIDING MEMBER: Okay. Back on the record. Okay. We haven't received any notice from Mr. Cheng but what you're telling me is that you're here alone today and that you wish to proceed, is that correct? CLAIMANT: Yes. PRESIDING MEMBER: Okay. So I'm treating this as though you have no lawyer because in fact you don't. CLAIMANT: Okay. [9] The RAD finds that the Appellant was given ample opportunity to decline from proceeding with his RPD hearing due to the lack of counsel, yet he chose not to do so. The RPD sums it up in the reasons as follows: I note that Mr. XXXX was not represented at his hearing, despite having counsel on record as well as an immigration consultant who appeared at the September 28, 2017 sitting. Mr. XXXX did not appear to know if his lawyer or the immigration consultant were still working for him, but only that they were not attending the hearing with him. He stated that notice to this effect had been submitted to the Board but as of the date of this decision, no notice has been received. Mr. XXXX elected to proceed with the hearing without the assistance of counsel or a representative. (para. 7) [10] The RAD agrees with RPD and finds that the decision of the RPD to proceed was not an error. The Appellant had an ample opportunity to indicate that he did not want to proceed without his counsel, be it Mr. Grachev or Mr. Zheng, but he did not. [11] No other grounds are raised on appeal. As stated in the decision of Ilias,1 Mr. Justice Bell upheld the RAD when it confirmed the RPD decision and rejected the new evidence presented on appeal. The Court rejected the Appellant's contention that the RAD should have considered the sur place claim despite the fact that it was not raised by the Appellant on appeal to the RAD: I reject the Applicant's contention the RAD should have considered the sur place claim. The Applicant did not challenge, in accordance with Rules 3(3)(g)(i) and (ii) of the RAD Rules, the RPD's finding in this regard. The responsibility rests with the appellant to raise any potential grounds of appeal that arise from the RPD decision. The RAD has no responsibility to consider other grounds.2 CONCLUSION [12] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Deborah Morrish" Deborah Morrish November 15, 2018 Date 1 Ilias, Mohammed Kamal Deen v. Minister of Citizenship and Immigration, (IMM-5152-17), 2018 FC 661, Bell, June 27, 2018. 2 Ibid., at para. 39. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23485 RAD.25.02 (September 18, 2018) Disponible en français 7 RAD.25.02 (September 18, 2018) Disponible en français