TB5-06644

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 : TB5-06644 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (A.K.A. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 22, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Canageswary Rajasingam Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of India, appeals a decision of the Refugee Protection Division (RPD) denying his claim for protection. He has not submitted new evidence in support of his claim and he has not requested an oral hearing. The Appellant requests that the refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a decision that he is a Convention refugee or a person in need of protection. Determination [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD finds the Appellant was not denied a fair hearing of his claim and he was not denied natural justice in this regard as a result of counsel incompetence. As there are no submissions regarding the substance of this claim and this is the only issue in the Appellant's appeal submissions, the RAD finds the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleges he worker in Singapore for eight years and returned to Tamil Nadu, India in 2005. He joined the Marumaltschy Munette Party (MDMK) to support the Sri Lankan self-determination cause and object to the atrocities committed by the Sri Lankan army. [4] He participated in demonstrations opposed by the Tamil Nadu government and the Appellant was arrested with many others. He was beaten by police and asked to confess that he was connected to the LTTE. He paid a bribe and was released after two days. Police came to his home on three occasions after the end of the Sri Lankan civil war in 2009 and asked if he had a connection to the LTTE. In late 2012 and in 2013 a number of Sri Lankan Tamils were arrested in Tamil Nadu under suspicion of engaging in terrorism. [5] In September 2013, Q branch officers came to his home and took him to their facility for questioning and accused him of fundraising for the LTTE. He paid a bribe and was released after one day. He was warned that if he was arrested again he would be detained under anti-terror legislation. [6] The Appellant made arrangements with an agent, acquired a Canadian business visa and travelled to Canada on November 3, 2013. [7] Since his departure LTTE activities have increased in Tamil Nadu and the government has been arresting people without real evidence. In November 2014, police went to his home and questioned his wife about the Appellant's whereabouts. They told her they had evidence of his help for the LTTE and told her to have him report to them when he returned to India. [8] The Appellant made a refugee claim in December 2014, and his claim is based on political opinion and perceived connection to the LTTE. The Issues [9] The RPD panel indicated the determinative issues in regard to this claim are credibility and internal flight alternative (IFA). [10] The Appellant submits the issues in this appeal are whether the Appellant was denied procedural fairness and natural justice due to the ineffective representation of his counsel as describe in Kavihuha?1 The Role of the RAD [11] While the IRPA 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 lower tribunal. [12] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [13] In this regard, the Court in Huruglica2 considered the appropriate relationship between the RAD and the RPD. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [14] The Court 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." [15] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [16] The Appellant's submission as to whether he was denied procedural fairness and natural justice due to ineffective representation of his counsel [17] The Appellant submits he was incompetently represented by counsel because his counsel failed to properly prepare himself or the Appellant for the hearing, to advise him of the applicable test, the evidence required to make a claim, to obtain and file corroborative and additional supporting evidence, or to have adequate knowledge of the claim. [18] The Appellant notes the panel found there were inconsistencies between his testimony and his Basis of Claim (BOC) form narrative and that he was unable to recall relevant dates. The Appellant submits that if he had been adequately prepared he would have been in a better position to answer the panel's questions and inconsistencies would have been properly addressed at the hearing. [19] The Applicant further notes the panel found that he did not provide sufficient corroborative and objective documentary evidence to rebut the IFA. The Appellant submits that he expected counsel to have explained to him the IFA and its consequences. [20] The Appellant submits as well that preparation by counsel is required because the process is new and is taking place in a foreign country. In addition the relevant events took place years before the hearing and memory would not be as sharp when recalling dates of those events without the opportunity to review the facts with counsel. [21] The Appellant submits that if he had been properly represented he would have had a fair hearing and the result would have been different. [22] The RAD has reviewed and assessed all of the evidence in the RPD record concerning the Appellant's allegation that he did not have a fair hearing because of the ineffective representation he received from his counsel and as a result he was denied natural justice. [23] The RAD notes the Appellant provided a complaint form provided by the Law Society of Upper Canada3 in which he indicated that he was not properly prepared for his hearing. The Appellant further submitted that he also had concerns regarding the payments he was required to make to his lawyer's interpreter and to the lawyer. [24] The RAD further notes the Appellant submitted in his Memorandum of Argument4 that he provided evidence to support his allegations of incompetence or negligence and that his counsel was given an opportunity to respond to the allegations and explain his conduct. [25] The RAD notes that the Appellant has not provided any evidence confirming that the Law Society document was submitted to the Society. Neither is any evidence provided that the Appellant has provided his former counsel with a copy of the Law Society document in order to provide counsel with an opportunity to respond. The RAD is guided regarding this concern by the Federal Court's decision in Pusuma5 in which the Court stated: Although they complained to LSUC and the CSIC, the complaints the Applicants filed, which they have reproduced in their application record, merely recite the allegations they had made before the RPD. They did not provide further evidence to cooroborate the allegations of incompetence. It was therefore reasonable for the RPD to expect that the Applicants would provide further corroboration and proof of adequate notice to their former representatives. [26] The RAD has reviewed the hearing recording as to counsel's participation and has reviewed as well counsel's written submissions concerning this case. The RAD finds no basis in this evidence to support an allegation that the Appellant was denied a fair hearing because of his counsel's incompetence. [27] The RAD further finds no evidence that the panel's findings were the result of counsel's incompetence. The RAD finds in this regard that remembering the dates of significant incidents related to the central issue in the claim is the Appellant's responsibility. In addition, the integrity of documents submitted by the Appellant is also the responsibility of the Appellant. In regard to additional corroborating documentation, the RAD notes the Appellant was advised in his BOC instructions that he must provide all such evidence available to him. The RAD further notes the Appellant testified under oath at the beginning of the hearing that the information provided is complete, true and correct. [28] The RAD is guided in this regard by the Federal Court decision in Olia6 in which the Court stated: The general principle or presumption, that a person accepts the consequences of his or her choice of counsel, cannot be overcome merely by demonstrating counsel was incompetent. Rather there must be substantial prejudice to an individual, the result of incompetent counsel, bringing about a miscarriage of justice.... The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. [29] The RAD finds that the Appellant has not provided sufficient evidence in this regard. [30] In regard to the possibility of an IFA, the RAD notes that this was presented to the Appellant in the hearing and he responded with an explanation as to why he would not be safe in the proposed cities. The RAD further notes counsel also dealt with this matter in the hearing. The RAD finds there is no evidence that the Appellant might have responded differently or in a more convincing manner if counsel had discussed the IFA issue with him before the hearing. [31] In regard to the Appellant's preparation for the hearing, the RAD notes that counsel may not have been as diligent as possible in the preparation of the Appellant for the hearing, but the RAD finds no evidence that there is sufficient evidence to support the Appellant's allegation that counsel was incompetent in representing him and the result was a denial of natural justice. Disposition [32] Pursuant to section 111 (1)(a) of IRPA, the RAD finds the Appellant was not denied a fair hearing of his claim and he was not denied natural justice. As there are no submissions regarding the substance of this claim and this was the only issue in the Appellant's appeal submissions, the RAD finds the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel September 22, 2015 Date 1 Kavihuha, Williams v. M.C.I. (F.C., no. IMM-5465-14), Zinn, March 16, 2015, 2015 FC 328. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, at pp. 18-20. 4 Exhibit P-2, Appellant's Record, at p. 27. 5 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012, 2012 FC 1025. 6 Olia, Amir v. M.C.I. (F.C., no. IMM-8587-04), Hargrave, March 2, 2005, 2005 FC 315. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06644