TB8-07690

RAD File / Dossier de la SAR : TB8-07690 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 27, 2020 Date de la décision Panel R. Seyan Tribunal Counsel for the person who is the subject of the appeal John W Grice Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre Reasons for decision [1] XXXX XXXX (the appellant) is appealing the decision of the Refugee Protection Division (the RPD), which denied her claim for refugee protection. [2] She is a citizen of Iran and alleges she cannot return, as she is an apostate and a Christian. Determination [3] I refer the matter back to the RPD for re-determination by a differently constituted panel with no directions. [4] The determinative issue is allegations of incompetent counsel at the RPD. I find that the appellant had incompetent representation, which meant that her claim was put forward in an incomplete manner, which in turn lead to incorrect findings by the RPD. Allegations [5] In April 2016, the appellant separated from her husband. She spent more time with her cousin, a Christian convert. She started to attend a house church. One member was arrested. The appellant found a smuggler and traveled to Canada in XXXX 2017, where she made a refugee claim some months later. The RPD decision: the appellant is not credible [6] The RPD found the appellant not to be a credible witness for the following reasons: * It noted some omissions from the appellant's Basis of Claim (BOC) form (arrest of her cousin; mention of her mother's illness; her mother's detention by the Basij, part of the Revolutionary Guard; the Basij searching for her and searching her siblings' homes); * It did not believe the appellant's evidence with respect to the temporary resident visa for Canada, which the appellant obtained while on a short trip in Turkey; * The appellant's re-availment to Iran after her trip to Turkey; * The appellant's supporting documents, including an email from a member of her Iranian house church; and * Her delay in claiming. The appellant's argument: incompetent counsel [7] The appellant is arguing that her former counsel, through no fault of her own, did not adequately represent her. [8] She is submitting new evidence in support of her appeal. The role of the Refugee Appeal Division (RAD) [9] I am required to examine the record (the evidence, the hearing and the RPD decision) independently and determine if the RPD arrived at the correct decision.1 I must consider the admissibility of the new evidence and decide on whether to convene an oral hearing if I admit the new evidence. I am admitting the new evidence [10] The appellant has submitted an affidavit and three supporting pieces of evidence with her appeal record. She has provided additional disclosure pursuant to Rule 292. [11] The hearing took place February 14, 2016; and the decision was issued February 16, 2018. [12] On May 1, 2018, the appellant laid out her allegations against her former counsel in an affidavit. She attached the following three things: (i) A fax sent to her former counsel dated April 27, 2018, outlining allegations that her former counsel submitted her BOC amendments as legal submissions; (exhibit A). (ii) An email from her former counsel dated April 20, 2018; (exhibit B); and (iii) A copy of the retainer between the appellant and her former counsel dated January 10, 2018 (Exhibit C). [13] The Rule 29 evidence is a fax, which contains an affidavit from her former counsel dated May 18, 2018. This evidence could not have been provided at the time of perfection of the appeal (May 2, 2018), as it postdates perfection. It is relevant and probative, and brings new evidence to the appeal and is therefore allowed under Rule 29. [14] All of the appellant's new evidence meets subsection 110(4), which requires that the evidence arose after the rejection of the claim, or was not reasonably available, or that the appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. [15] The new evidence also meets the Singh/Raza3 factors (credibility, relevance and newness). It is correspondence between the appellant, her present counsel and her past counsel and is therefore relevant. It is credible with respect to its sources and circumstances, and it is new as postdates rejection. No oral hearing [16] The requirements of an oral hearing are governed by 110(6) of the IRPA. [17] The new evidence does not raise a serious issue with respect to the appellant. It is not central to the decision with respect to the refugee protection claim and if accepted, would not justify allowing or rejecting the claim. [18] Therefore, I cannot hold an oral hearing. I find the appellant's counsel at the RPD did not represent her properly [19] The RPD found that the appellant was not credible based on omissions from her BOC: the detention of her mother, the arrest of her cousin, the Basij searching for her and searching through her siblings' houses. [20] The RPD is correct, because these allegations are neither in the original BOC, nor are they in the amended BOC. [21] The appellant submitted her first BOC to the RPD on October 11, 2017. She did not have counsel at the time.4 [22] On November 20, 2017, the appellant submitted a second BOC to the RPD at the RPD's request. The RPD had identified the appellant's first BOC as incomplete as there was no interpreter's declaration.5 None of the content of the BOC had changed. The only change is the addition of the declaration of the interpreter.6 [23] On February 2, 2018, the appellant's former counsel submitted seven items to the RPD.7 The first item is entitled "refugee Claim Submission". In the "facts" section, counsel writes the following: * At paragraph 12, that while the appellant was out with a friend, a neighbour called to let her know the Basij had arrested her mother; * At paragraph 14, that the appellant's cousin was arrested; * At paragraph 16, that when the appellant was in Turkey, she found out that her mother had fallen ill and had to be hospitalized. [24] Former counsel states in his affidavit (the Rule 29 evidence) that he met with the appellant twice, where she provided additional facts which she wanted to add to her BOC. Counsel states that the facts in the amended BOC were read to the appellant in Farsi on February 13, 2018. [25] There is no amended BOC dated February 13, 2018. Instead, former counsel included the appellant's additional facts in his statement entitled "legal submissions". Clearly, the appellant communicated the additional facts to her former counsel. [26] It cannot be held against her that former counsel erroneously entered the new facts in the written submission and then refers to it as the amended BOC. [27] The appellant's present counsel correctly identified this mistake by the former counsel. [28] The consequence of the error was substantial prejudice to the appellant, which flowed from the actions of her former counsel, and this caused a miscarriage of justice. The RPD made a number of erroneous findings. There is a strong likelihood that without the error of former counsel, the result of the hearing may have been different. [29] The matter must therefore be returned to the RPD for re-determination by a differently constituted panel. [30] The appellant followed the steps set out by the IRB for making allegations against former counsel8, she gave her former counsel notice. Her former counsel responded. [31] The deciding factor for me is that the appellant's former counsel made submissions, which he then referred to as "BOC amendments". I can see how this would lead to confusion during the hearing that could be determinative. [32] The procedural fairness of the appellant was breached. The matter must be returned to the RPD. The RPD's other findings are not determinative [33] I am not going to make findings on the remaining credibility findings of the RPD. The appellant's evidence with respect to her temporary resident visa, her re-availment to Iran, her supporting documents and her delay in claiming may or may not be credible. Conclusion [34] There was a breach of procedural fairness for the appellant. Her former counsel's representation was prejudicial to her. In my final analysis, there is insufficient evidence for me to find that the appellant is a Convention refugee. [35] The appeal is allowed. I refer the matter back to the RPD for redetermination without directions. (signed) "R. Seyan" R. Seyan 27 July 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93. 2 Exhibit P-3, Rule 29, Received May 24, 2018. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96. 4 Exhibit RPD-1, RPD Record, Exhibit 2, p. 21. 5 Exhibit RPD-1, RPD Record, Exhibit 4, p. 24. 6 Exhibit RPD-1, RPD Record, Exhibit 4, p. 35. 7 Exhibit RPD-1, RPD Record, p. 130. 8 Immigration and Refugee Board of Canada. August 27, 2018 (Effective date: September 10, 2018). Practice Notice - Allegations Against Former Counsel. <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/allegations-former-counsel.aspx>. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-07690 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français