VB3-01375

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 : VB3-01375 / 6 Private Proceeding / Huis clos APPLICATION Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal XXXX XXXX XXXX Appeal considered / heard at Vancouver, BC Appel instruit à Date of decision June 16, 2014 Date de la décision Panel Kashi Mattu Tribunal Counsel for the person(s) who is(are) Benjamin K. Lau Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] These are the reasons and decision in the applications by XXXX XXXX XXXX and XXXX XXXX XXXX (the "appellants") to reopen their appeals previously dismissed by the Refugee Appeal Division (the "RAD") on October 8, 2013.1 BACKGROUND [2] The appellants arrived in Canada in XXXX 2012 and made claims for refugee protection in January 2013. The appellants hired XXXX XXXX (the "former counsel") to represent them in their claims for refugee protection. The appellants had hearings before the Refugee Protection Division (the "RPD") in April 2013 and former counsel represented the appellants at the hearings. The RPD issued a written decision rejecting the appellants' refugee protection claims in May 2013. The appellants filed appeals to the RAD in June 2013 and the former counsel represented the appellants in the RAD appeals. The RAD issued a written decision dismissing the appeals in October 2013. [3] The appellants hired new counsel to represent them and filed applications for leave for judicial review in October 2013. The Federal Court granted extensions of time to file their records until after a decision is rendered by the RAD on the applications to reopen the appeals. [4] The appellants hired another new counsel to make the applications to reopen their RAD appeals. The applications to reopen were made in writing to the RAD by letter dated April 16, 2014 with a 163 package of documents, including Statutory Declarations of the appellant Ms. XXXX. Counsel for the appellants submits that there is a breach of natural justice as a result of former counsel's incompetence and inadequate representation in the appellants' claims heard before the RPD and their appeals to the RAD. ANALYSIS [5] Section 49 of the Immigration and Refugee Protection Act Rules (the "Rules"),2 specifically sets out the provisions for reopening appeals. In this case, the reopening of the appeals is based on a breach of natural justice due to incompetence of former counsel. The appellants have met the procedural requirements pursuant Rule 49. [6] Counsel for the appellants submitted, among other things, that: * the former counsel demonstrated his incompetence and inadequate representation by failure to raise or advance claims under section 96 of Immigration and Refugee Protection Act (the "IRPA")3 and by failure to submit readily available evidence to the RPD to corroborate the appellants' refugee protection claims; * the former counsel did not raise or advance claims under section 96 of IRPA but the RPD found the appellants did have a nexus to the Convention ground of race because they were ethnic Chinese minorities living in Fiji; * the former counsel never advised the appellants to find evidence in support of claims that ethnic Chinese were targeted or tortured in Fiji and they did not know they could submit such evidence to support their claims and it was subsequent to the denial of the claims that former counsel advised the appellants to gather evidence of ethnic Chinese being targeted in Fiji; * the former counsel's failure to advise the appellants that a section 96 claim was available to them and failure to raise the section 96 claims severely prejudiced the appellants' claims at the RPD hearings and their appeals at the RAD. The RAD decision is clear that because the appellants had counsel to represent them it is very difficult for the RAD to conclude that the appellants ever had a well-founded fear of persecution by reason of race if they never made such allegations in the first place; * the appellants were misled into believing the former counsel was a lawyer; * the former counsel failed to seek an adjournment at the RPD hearings when the Member raised the section 96 claims which would have provided time to gather evidence to support the claims; * the former counsel failed to submit evidence in support of the claims when such evidence was readily available prior to the RPD hearings but the appellants had provided documentary evidence to former counsel on several occasions, however, he returned the evidence to the appellants and explained that it was not necessary and they should wait to see how the tribunal decides their cases first; * in the RPD reasons the Member found that the appellants had not adduced sufficient credible evidence to establish their fear of returning to Fiji and a lack of corroborating documentation to support the claims' primary allegations; * in appealing to the RAD the former counsel attempted to submit new evidence to corroborate the claims, however, the RAD found this evidence was inadmissible at the RAD because it was available before the RPD hearings and there was no explanation provided as to why the evidence was not presented to the RPD; * the former counsel has not provided a reason why he did not submit the readily available evidence to the RPD and as former counsel was the same counsel that represented the appellants at the RPD and at the RAD he did not raise the issue of his own incompetence regarding the failure to raise the section 96 claims or the failure to submit the readily available evidence to the RPD to the RAD; and * as a result of demonstrated incompetence by the former counsel the appellants were severely prejudiced and were deprived of any meaningful opportunity to seek refugee protection under section 96 of IRPA and the ability to corroborate their claims before the RPD. [7] The applications were provided to the Minister and the Minister has not responded to the applications to reopen. [8] The applications to reopen were provided to the former counsel and he responded by letter dated April 19, 2014. The former counsel submitted that he disagrees with the content of the applications regarding the standard of his professional conduct and submitted that: * the clients appointed him by using the Use of Representative Forms and they signed their names and clearly knew that he is a member of the Immigration Consultants of Canada Regulatory Council and not a member of the Law Society; * hearings was conducted to determine if the claimants were Convention refugees or persons in need of protection pursuant to section 96 and subsection 97(1), both claimants testified at the hearings, and "the IRPA S96 and 97(1) were asked by XXXX XXXX"; * the claimants signed their names to testify "that all were truth" and the Basis of Claim form had instructions from the Immigration and Refugee Board (IRB) to the claimants and "the claimant(s) is/are responsible to submit evidence to the IRB. They may provide the documents to their council then the council passes them to IRB. It is not the council's responsibility to submit evidence to IRB." [9] The Federal Court has considered the issue of incompetence of counsel in the immigration context and found that there is a denial of natural justice where the conduct of the applicant's representative is inherently prejudicial to him. In paragraph 12 of the Shirwa4 decision the court stated: In other circumstances where a hearing does occur, the decision can only be reviewed in "extraordinary circumstances", where there is sufficient evidence to establish the "exact dimensions of the problem" and where the review is based on a "precise factual foundation". These latter limitations are necessary, in my opinion, to heed concerns expressed by Justices MacGuigan and Rothstein that general dissatisfaction with the quality of representation freely chosen by the applicant should not provide grounds for judicial review of a negative decision. However, where the incompetence or negligence for the applicant's representative is sufficiently specific and clearly supported by the evidence such negligence or incompetence is inherently prejudicial to the applicant and will warrant overturning the decision, notwithstanding the lack of bad faith or absence of a failure to do anything on the part of the tribunal. [10] The Supreme Court of Canada in G.D.B.5 has considered the issue of incompetence of counsel and confirmed there is a breach of natural justice if counsel's act or omissions constituted incompetence and prejudice is caused. [11] In the case at bar, the appellants had two bases to proceed with their refugee protection claims, that is, pursuant to section 96 and subsection 97(1) of the IRPA as Convention refugees or persons in need of protection. It appears from the submissions, the documents submitted with the applications, and the RPD and RAD Members' reasons and the former counsel's response to the applications, that the former counsel had an incorrect understanding of the law and/or the facts as they related to the potential bases for refugee protection claims to the RPD by the appellants and the ability to introduce new allegations and evidence to the RAD in appeals from decisions of the RPD. The former counsel did not even raise section 96 claims at the RPD. Further, the former counsel did not provide certain documentary evidence, which was readily available, to corroborate the testimony of the appellants related to the section 96 claims that the RPD Member could have considered. In addition, the former counsel did not request an adjournment of the RPD hearings when the RPD Member raised the specific issue. Moreover, the former counsel did not raise, at the RAD, the issue of his potential errors or inadequate representation at the RPD hearings as explanations for failing to raise the section 96 claims or failing to submit the readily available evidence to the RPD. [12] It is questionable whether former counsel adequately grasped the fundamental issues at the RPD or RAD and the evidentiary requirements and restrictions. In his response to the applications, the former counsel did not provide any explanations as to why he did not raise the section 96 claims, why he did not submit readily available documents that would have corroborated the appellants' testimony or why he did not request an adjournment when the RPD Member brought the section 96 claims to his attention at the hearings. The former counsel did not provide any response to the allegations that the appellants had provided certain documents to him prior to the RPD hearings and he returned those documents and advised the appellants that they were not necessary and then requested such documents only after the refusal for purposes of the RAD appeals. The former counsel simply stated in his response that it was the appellants' responsibility to submit evidence to the IRB, they may provide documents to their counsel then the counsel passes them to the IRB and it is not the counsel's responsibility to submit evidence to the IRB. [13] These findings do not simply reflect a case of general dissatisfaction with the quality of representation freely chosen by the appellants. There are specific and clear examples of former counsel for the appellants' conduct referred to in the Statutory Declarations and the additional documents submitted in support of the applications to reopen the appeals that, in my view, meet the high threshold of incompetence of counsel. The RPD Member's reasons clearly reflect that although the RPD Member did consider the section 96 claims despite former counsel failing to raise the issues, the RPD Member found that the determinative issue was credibility and the RPD Member made specific negative credibility findings as a result of the lack of corroborative evidence.6 Moreover, the RAD Member's reasons clearly reflect that the appellants had not established that the RPD erred in its decisions such that its determinations should be set aside and the RAD Member found that certain evidence submitted as new evidence under subsection 110(4) of IRPA was inadmissible because the evidence and allegations were not raised first at the RPD and no explanations were provided for failing to do so.7 CONCLUSION [14] Based on the RPD and RAD decisions, submissions and evidence before me, I find the appellants were denied the opportunity to present potentially meaningful evidence in support of their RPD hearings and RAD appeals. I am satisfied that the particular claims of inadequate representation are sufficiently specific, exceptional and supported by the evidence to meet the performance component established in the jurisprudence. The specific concerns regarding former counsel's conduct at the RPD hearings and RAD appeals leads me to the conclusion that former counsel's conduct was inherently and considerably prejudicial to the appellants, such that the appellants were denied full and fair hearings and appeals. In my view, on the particular facts of this case, the cumulative impact of the prejudice suffered by the appellants as a result of the former counsel's inadequate representation was sufficiently serious to compromise the reliability of the RPD's and RAD's decisions and sufficient to result in a miscarriage of justice. [15] The appellants have established that there has been a breach of natural justice based on the incompetence of their previous counsel. The applications to reopen their RAD appeals are allowed. (signed) "Kashi Mattu" Kashi Mattu June 16, 2014 Date 1 XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, (VB3-01375/76), MacAulay, October 8, 2013. 2 Immigration and Refugee Protection Act Rules, SOR/2012-257, February 6, 2014. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 4 Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51. 5 R. v. G.D.B., 2000 SCC 22, paras. 26-29. 6 XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, (VB3-00211/212), Davidson, May 17, 2013, paras. 13, 17, and 29. 7 XXXX and XXXX, supra, footnote 1, paras. 51, 52, 56-59, and 111. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-01375 / 6