TB8-21507

RAD File / Dossier de la SAR : TB8-21507 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 December 1, 2020 Date de la décision Panel E. Bobkin Tribunal Counsel for the person who is the subject of the appeal Jennifer Mendelsohn 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] I allow the appeal of XXXX XXXX (the Appellant), a citizen of Iran. I am returning this matter for a new hearing before the Refugee Protection Division (RPD). [2] The Appellant alleges that he is gay. He alleges that his partner was arrested at a raid on a party and remains in detention. He alleges that he fears that his relationship has been exposed, and he is at risk in Iran. He alleges that he was previously arrested by authorities for his work as a disc jockey (DJ), and there were suspicions about his sexual orientation. [3] The RPD found the Appellant lacked credibility due to several significant inconsistencies between his Basis of Claim form (BOC) and his testimony, and internal inconsistencies in his testimony. [4] The Appellant alleges that the RPD erred in assessing credibility by using a Western lens for assessing evidence, misconstruing evidence and relying on peripheral issues. The Appellant also alleges that his former Counsel was not competent and that he therefore did not have a fair hearing. He submits new evidence that he argues was not presented because of the incompetence of former Counsel. [5] I find the determinative issue is the competence of former Counsel. I find that the Appellant did not have a fair hearing because of issues with his Counsel and that, because this affected the entirety of the hearing, I must return the matter to the RPD. I am not addressing the admissibility of the new evidence as all evidence will be reassessed by the RPD. DECISION [6] The appeal is allowed. I send this matter back to the RPD to be redetermined. THE ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] My role is to look at all the evidence and decide if the RPD made the correct decision.1 There is an exception to this, where the RAD defers to the RPD if the RPD had a meaningful advantage in assessing the credibility of oral evidence. I do not find this case falls into the exception. Therefore, I will be looking at whether the RPD's decision was correct. ANALYSIS [8] The Appellant alleges that his Counsel before the RPD was not competent.2 The Appellant has not substantiated this allegation with evidence, including an affidavit, and he has not followed the Board's Practice Notice on allegations of incompetence against former Counsel, including giving notice to former Counsel. Generally, in such circumstances, I would dismiss the Appellant's allegations as unsubstantiated. [9] However, through specialized knowledge, I have recently become aware that the Appellant's former Counsel, a paralegal, is under practice restrictions from the Law Society of Ontario including the restriction that she "will not act in any actual or contemplated matter before the Immigration and Refugee Board" and that she cannot provide legal services "with respect to immigration and refugee law."3 In my view, this gives substance to the Appellant's allegation that he was not provided competent representation at the RPD. [10] Moreover, on an independent review of the record, I see further evidence that the Appellant was not competently represented. For example, the RPD noted that former Counsel had acted as the interpreter of the BOC and that this could put her in a conflict of interest if there were inconsistencies between the BOC and the testimony, which there were.4 Counsel was also cautioned about the rules of disclosure of evidence, and it appeared that Counsel did not properly understand these rules.5 There is now an allegation that former Counsel did not properly prepare the Appellant about disclosure of documents. All of this impacted on the RPD's decision. Based upon this, I find that, on a balance of probabilities, the Appellant did not receive competent counsel at the RPD. [11] I considered whether given this finding I could either confirm the RPD's decision or substitute a positive decision, but I cannot. The issues with the representation taint the testimony, and, therefore, I cannot determine if the testimony was credible or not. In my view, this breaches the Appellant's right to procedural fairness, and, therefore, a new hearing is required. [12] For example, one issue raised by the RPD was about the party which the Appellant alleges led to the arrest of his same-sex partner. The RPD found inconsistencies between the BOC and the testimony. However, there is an allegation that this related in part to translation of the BOC done by former Counsel.6 I cannot make a finding about this without hearing evidence which was before the RPD. [13] Similarly, there was some question about testimony regarding the Appellant's partner's family and whether they knew about his sexual orientation. Again, there is an allegation that inconsistencies in this regard relate to errors contained in the BOC and the impact this had on testimony.7 Again, I cannot make a finding about this without hearing evidence which was before the RPD. [14] Looking at the testimony on the whole, I find that it was tainted by the actions of former Counsel, particularly in preparing the BOC. In my view, the Appellant would be well served by having an independent interpreter confirm the content of his BOC in advance of any hearing. [15] For these reasons, I find that I can neither confirm the RPD's decision nor can I substitute a positive decision on the record before me. CONCLUSION [16] The appeal is allowed. I send this matter back to the RPD to be redetermined. [17] I direct that the matter be heard by a different panel of the RPD. (signed) Erin Bobkin E. Bobkin December 1, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 2 Exhibit P-2, Appellant's Record, at p. 237. 3 https://lso.ca/public-resources/finding-a-lawyer-or-paralegal/directory-search/members/paralegal/003XXXXXX 4 Transcript of the RPD Hearing (April 18, 2018), at pp. 3, 26-27. 5 Transcript of the RPD Hearing (April 18, 2018), at pp. 20-21. 6 Transcript of the RPD Hearing (April 18, 2018), at p. 26. 7 Exhibit P-2, Appellant's Record, at pp. 232-233. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-21507 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