MC1-03403

RAD File No. / No de dossier de la SAR : MC1-03403 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision February 7, 2022 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person who is the subject of the appeal Barbara Brizuela 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 OVERVIEW [1] XXXX XXXX, the appellant and a citizen of Lebanon, is appealing the decision of the Refugee Protection Division (RPD) rendered on May 19, 2021, rejecting her refugee protection claim on the ground of lack of credibility. 1. In her Basis of Claim Form (BOC Form), the appellant alleges that she was a victim of violence perpetrated by her husband and son. She came to Canada with a visa on XXXX XXXX, 2020, and claimed refugee protection on December 11, 2020. She fears for her safety should she return to Lebanon. 2. In its decision, the RPD found that the appellant was not a credible witness due to inconsistencies in her testimony and her returns to Kuwait and Lebanon. The RPD considered that although the appellant's marital and family problems were unfortunate, they did not reach the required threshold to amount to persecution and that, as a result, the appellant had failed to demonstrate there would be a serious possibility of persecution or a risk to her life if she returns to Lebanon. 3. In her memorandum, the appellant argues that the representation provided by her former counsel, whom she believed to be a lawyer, was inadequate in that he failed to inform her that she could have her daughter testify. She argues that her daughter could have corroborated her testimony regarding the domestic violence and that this would have had a major impact on the outcome of her claim. 4. The appellant advised her former counsel of her allegations of inadequate representation in accordance with Practice Notice - Allegations Against Former Counsel,1 and he submitted his responses on the Refugee Appeal Division (RAD) record. 5. The determinative issues for the RAD are procedural fairness and credibility. DETERMINATION [2] The appeal is dismissed. Former counsel's actions did not deprive the appellant of her right to procedural fairness. The RPD correctly determined that the appellant was not a credible witness and that she is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [3] In her memorandum, the appellant does not indicate that she has new evidence; however, she included two affidavits, one signed by her and the other by her daughter. These affidavits describe new developments and are therefore subject to the provisions of subsection 110(4) regarding their admissibility as new evidence. [4] Under the Immigration and Refugee Protection Act2 (IRPA), I can allow only evidence i) that arose after the RPD rendered its decision; ii) that was not reasonably available at the time of the decision; or iii) that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. iv) If the evidence meets one or more of these requirements, I must decide whether the evidence is new, credible and relevant before admitting it.3 [5] Both affidavits are admitted as new evidence. [6] In their respective affidavits, the appellant and her daughter state that at their last meeting with a lawyer to prepare the appellant's appeal, they learned that the former counsel was not a lawyer, that the appellant's daughter, who had witnessed her father's violent acts toward her mother, could have testified before the RPD and that this could have changed the outcome of the refugee protection claim. This information meets the first three criteria of subsection 110(4) since, according to the memorandum, it was only while preparing the appeal with the appellant's lawyer that they discovered this information. It consequently arose after the RPD's decision. [7] The documents are credible because they are affidavits containing statements made under oath by the appellant and her daughter, new because they bring new evidence concerning the allegations of persecution and relevant because they could have an impact on the outcome of the claim. ANALYSIS [8] The role of the RAD is to review RPD decisions by applying the correctness standard of review.4 Having applied this standard of review and conducted my own analysis of the record, which included listening to the recording of the hearing held before the RPD on April 15, 2021, and ensuring that Chairperson's Guideline 45 was implemented, I consider that the rules of procedural fairness and natural justice were not breached and that the RPD did not err in finding that the appellant was not a credible witness. The reasons are as follows. [9] In its decision, the RPD concluded that due to contradictions, inconsistencies and behaviour inconsistent with a subjective fear directly related to her allegations of violence, the appellant was not a credible witness and that, consequently, she had failed to establish that she faced a serious possibility of persecution if she returned to Lebanon or, on a balance of probabilities, that she would be subjected personally to a risk to her life or to other treatment provided under section 97 of the IRPA. Professional qualifications of the former counsel were known to the appellant and her daughter [10] In her memorandum, the appellant argues that she did not know that her former counsel was not a lawyer and that had she known this, she would not have retained his services. She included an affidavit from herself and another from her daughter that both contain statements to the effect that the former counsel never disclosed to them that he was not a lawyer. [11] When claimants swear to the truth of certain allegations, they are presumed to be telling the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for those inconsistencies.6 [12] With respect, the appellant and her daughter are not credible when they assert in their respective affidavits that they did not know that the appellant's former counsel was not a lawyer. I reviewed the contents of the RPD record and the former counsel's response to the allegations of inadequate representation.7 These documents, of which I have reproduced the relevant excerpts, demonstrate that the former counsel disclosed clearly to the appellant and her daughter that he was an immigration consultant and member of the Immigration Consultants of Canada Regulatory Council (ICCRC). I note that according to the response from the former counsel, the appellant's daughter, who, based on her statement at paragraph 12 of the BOC Form, is proficient in English, went with her mother to all meetings with the former counsel. [13] Basis of Claim Form - Question 9(k), Refugee Protection Division record: The appellant checked the box indicating that she was represented by an immigration consultant (emphasis added). She states further on under question 11, Declaration B, that the BOC Form was interpreted to her in Arabic and that the information it contained was complete, true and correct. I note that at the RPD hearing, she stated that the information in her BOC Form was complete, true and correct.8 At paragraph 12 of this same document, under the heading "Interpreter's Declaration," the appellant's daughter, XXXX XXXX, signed to declare that she had interpreted the BOC Form from Arabic to English for the appellant and provided any explanations to her and that the appellant had assured her that she understood the entire content of the document and all answers. [14] Use of a Representative, Form IMM 5476, Section B, question 6, Refugee Protection Division record, page 94: The appellant indicated that she was represented by a consultant who was a member of the ICCRC, membership number R421983, under question 10 in the document, and the appellant signed the declaration on XXXX XXXX, 2020, indicating that "I have fully and truthfully answered all questions on this form.... I also declare that I have read and understood all the statements on this form, having asked and obtained an explanation for every point that was not clear to me." [15] Retainer agreement with the former counsel signed by the appellant ("Retainer Agreement," Document 1 - RAD record): In his response to the allegations of inadequate representation, the former counsel indicates that the appellant signed, in the presence of her daughter, the "Retainer Agreement" - Refugee, which clearly stipulates that he is a member, under membership number R421983, of "Regulated Canadian Immigration Consultants - RCIC," a member organization of the ICCRC. [16] In light of the foregoing, I am of the opinion that the presumption of truthfulness afforded to the appellant and her daughter is rebutted, because the documentary evidence contradicts their assertions in their affidavits to the effect that they did not know that the former counsel was not a lawyer. I consider that the information was disclosed to them by the former counsel and, consequently, that they knew that he was not a lawyer. In these circumstances, I consider that the affidavits are of little probative value and I give them only limited weight. Adequate representation by the former counsel [17] In her memorandum, the appellant argues that her former counsel did not represent her adequately in that he failed to inform her that she could have her daughter testify. She alleges that her daughter witnessed many of her husband's violent acts toward her and that her testimony would have had a major impact on the outcome of her claim. [18] In his response to the allegations of inadequate representation, the former counsel explains that he hesitated to have the appellant's daughter testify for the following reasons: she has lived in Canada for more than 12 years and was therefore [translation] "distanced from the recent problems the mother had been having with her husband and the recently married son who was still living with her along with his wife."9 He adds that "had the appellant known that her daughter could be with her during the hearing, she would have stopped making an effort to prepare on her own." [19] With respect, I disagree with the appellant when she argues that the former counsel did not adequately represent her. [20] In Rendon Segovia et al,10 the Federal Court established a tripartite test in which each of the following elements must be met to demonstrate that the incompetence of counsel amounted to a breach of procedural fairness: - a. Prior counsel's acts or omissions constituted incompetence or misconduct; - b. A miscarriage of justice resulted in the sense that, but for the alleged conduct, the result would have been different; and - c. Prior counsel was given an opportunity to respond. [21] The first two criteria must be analyzed in conjunction with one another since they are closely linked. To meet the allegation of incompetence, the appellant must prove that her counsel was incompetent in choosing not to have her daughter testify or negligent in failing to advise her of the option to have her daughter testify, that this failure resulted in an error and that had it not been for this failure, it is reasonably likely that the result of the claim would have been different. This requires a very high level of proof before the panel can accept the argument, which the appellant has failed to bring in this case.11 [22] The Federal Court of Appeal has noted that it is settled that an applicant must live with the consequences of the actions of his counsel.12 As counsel, it was up to him to decide whether to call witnesses at the hearing on the appellant's behalf. In the case at hand, the decision not to have the appellant's daughter-who had left Lebanon more than 12 years previous, a fact not known to the RPD-testify does not appear unreasonable in light of the circumstances and the limited relevance of such testimony in relation to the analysis of fear of future persecution. [23] Concerning the appellant's allegation in her affidavit that her former counsel failed to inform her that she could have her daughter testify, the evidence in this regard is somewhat ambiguous. In his response, the former counsel indicates that [translate] "had the appellant known that her daughter could be with her during the hearing (emphasis added), she would have stopped making an effort to prepare on her own." Now, being present during a hearing is not the same as giving specific testimony regarding a particular point. [24] I also listened carefully to the recording of the hearing before the RPD on April 15, 2021. In response to the question put to her by the RPD regarding her daughter's absence, the appellant testified that her daughter had witnessed acts and that [translation] "I could ask her to testify." When the RPD asked her why she had not done so, the appellant replied, [translation] "I don't know." The RPD rejected the appellant's explanations as not credible13 since this went to the heart of her allegations of violence and she was represented by counsel. [25] Lastly, I note that this allegation is made in the same affidavit that I have decided not to give any weight to in view of the appellant's credibility issues in relation to another assertion made in the same document. Where the claimant's personal testimony is not credible, it is reasonable to have credibility concerns about the supporting documentary evidence and to accord it minimal weight.14 [26] In these circumstances, I am of the opinion that former counsel adequately represented the appellant and that principles of fairness were not violated. Outcome would have been the same [27] In her memorandum, the appellant argues that had she been able to have her daughter testify, the outcome of her claim would have been different. She does not contest the RPD's other findings regarding her credibility issues, specifically her behaviour inconsistent with that of a person in danger when she returned to live with her husband in Kuwait after leaving him, her return to Lebanon, her vague and superficial testimony, and her avoiding answering questions concerning her allegations of violence. [28] With respect, I cannot accept the argument that the RPD's decision was based on the absence of her daughter's testimony and that had it not been for this absence, the result would have been different. It is true that the RPD noted the absence of a witness whom it considered important, namely the appellant's daughter, but the RPD did not know that she had left Lebanon more than 12 years prior to the hearing. [29] Moreover, a review of the RPD reasons and decision and the recording of the hearing reveals that the RPD's decision did not ultimately revolve around the daughter's testimony. It revolved around the testimony of the appellant or refugee protection claimant, who was unable to establish on a balance of probabilities that there would be a serious possibility of persecution should she return to Lebanon or a risk to her life or other treatment under section 97, on a balance of probabilities, as set out below, hence the RPD's finding, which I consider correct, that the appellant was not credible. Vague and superficial testimony [30] The RPD noted immediately that the appellant was not always directly answering the questions put to her, particularly in relation to the allegations of violence, which were nonetheless central to her claim. In response to repeated questions from the RPD, the appellant was unable to provide details as to the persecution she alleges she experienced, remaining superficial: she replied that her husband would go out early in the morning and return in the evening, leaving her crying alone at home, that he was not clean, that he was stingy and would take her money, and that she did not love him. When asked again whether her husband had been violent toward her, she replied vaguely and evaded the question while indicating that he was not interested in her and that he had committed adultery. In light of the testimony, the RPD's decision that the appellant's evidence regarding the allegation of violence was essentially limited to marital problems is correct. [31] That said, the Supreme Court of Canada has stated that refugee law ought to concern itself with actions which deny human dignity and that the sustained or systemic denial of core human rights is the appropriate standard.15 Lack of subjective fear [32] The appellant testified that she had left her husband while they were living in Kuwait in 1991 to go live in Lebanon for three years. In 1994, she returned to Kuwait with her three children to live with her husband because she needed someone to provide for her financially, an explanation considered unsatisfactory by the RPD since she had been able to live for three years in Lebanon while providing for herself and her children. The RPD considered that the appellant's returning to her husband was behaviour inconsistent with that of a person who fears for their life. [33] In 2013, the appellant returned again to live in Lebanon with her children. After initially avoiding answering a question from the RPD as to whether her husband joined her in Lebanon, she went on to testify that she had agreed to have her husband come live with them because he had health problems. When then asked about the fears of violence if she returned to Lebanon, she testified that her husband would take her money and that he was not clean. [34] It is well established that remaining longer than necessary in a country where one fears persecution or voluntarily returning to that country is behaviour that can demonstrate a lack of subjective fear or is inconsistent with that of a person who genuinely fears for their life.16 In my view, the RPD's decision that the appellant demonstrated a lack of subjective fear by returning to live with her husband on two occasions and returning to Lebanon is correct. Contradiction in the evidence [35] When asked again about any violent acts, the appellant testified that her husband had cuffed her on the ear. However, this statement contradicts the statement in her BOC Form that it was her son who had cuffed her on the ear. Faced with this contradiction, she testified that it was her husband, not her son, who had struck her on the ear but that the son had put money in her mouth on one occasion during an argument about money. When questioned a second time concerning the contradiction, the appellant testified that it was her son who had struck her before going back on her testimony and stating that it was instead her husband.17 [36] The RPD's decision that this contradiction undermined the appellant's credibility is correct. [37] In the present case, after reading the RPD's decision, listening to the recording of the hearing and considering the arguments presented on appeal, I am of the opinion that the correct decision was to reject the refugee protection claim, as the inconsistencies and contradictions and the lack of subjective fear are fatal to the appellant's credibility. CONCLUSION [38] I conclude that the former counsel's actions did not deprive the appellant of her right to procedural fairness. The appellant had ample opportunity to argue her refugee protection claim. [39] I confirm the determination of the RPD, namely that XXXX XXXX is neither a refugee under section 96 nor a person in need of protection under section 97 of the IRPA. [40] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur February 7, 2022 Date IRB translation Original language: French 1 Practice Notice - Allegations Against Former Counsel, Immigration and Refugee Board of Canada (IRB), effective date August 13, 2018. 2 Subs. 110(4) of the Immigration and Refugee Protection Act. 3 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution, IRB, effective date November 13, 1996. 6 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924, para. 21. 7 SAR-1, Refugee Appeal Division (RAD) record, Responses to allegations, Document 1: RetainerAgreement-Refugee. 8 SAR-2, Recording of the Refugee Protection Division (RPD) hearing on April 15, 2021, at approximately 00:10:14. 9 SAR-1, RAD record, Responses to allegations, at page 4. 10 Rendon Segovia v. Canada (Citizenship and Immigration), 2020 FC 99, para. 22. 11 Canada (Citizenship and Immigration) v. Singh, 2018 FCA 96, para. 66. 12 Ibid. 13 SPR-1, RPD record, RPD reasons and decision, paragraph 46, p. 12. 14 Ogaulu v. Canada (Citizenship and Immigration), 2019 FC 547, para. 26. 15 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689. 16 Rivera v. Canada (Citizenship and Immigration), 2003 FC 1292, paras. 29 and 30; El-Khatib v. Canada (Citizenship and Immigration), 2016 FC 471, para. 12. 17 Supra, endnote 8, see approximately 00:04:12 to 00:08:55 (2nd cassette). --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MC1-03403 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français