VB3-03290

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 : VB3-03290 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision April 1, 2014 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Alastair Clarke Conseil(s) du (de la/des) the subject of the appeal 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] XXXX XXXX XXXX (the "appellant"), a citizen of Cuba, appeals a decision of the Refugee Protection Division (the "RPD") rejecting her claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely, that the appellant is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] The RPD heard the appellant's refugee protection claim on October 25, 2013. The RPD's reasons for the decision were delivered orally with transcribed reasons and a Notice of Decision dated November 20, 2013. [4] The appellant was a music teacher at the Cultural Centre in Havana under the authority of the Cultural Ministry of Cuba. The appellant testified that no one in her family is a political dissident and no one has been imprisoned by the Cuban authorities. The appellant left Cuba in XXXX 2013 and came to Canada XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [5] The appellant testified that before she left Cuba, she signed an oath indicating that she would inform if anyone deserted from the group while on this trip to Canada. The appellant testified that there is always someone from the Cuban government security that goes on these trips, but did not know which person it was. [6] The appellant decided to stay in Canada and make a claim for refugee protection. She fears that if she returns to Cuba she will be considered as a counterrevolutionary and subject to arrest upon arrival in Cuba, put on trial and subject to imprisonment and/or physical harm. [7] The appellant was represented at her RPD hearing by a no fee counsel, a social worker who she met through a friend in Winnipeg. She is represented in this appeal by legal counsel. Submissions [8] Counsel for the appellant has outlined three issues as the grounds for this appeal: * The appellant's right to natural justice and procedural fairness was breached by the clear incompetence of her representative, an unpaid social worker, who misrepresented her evidence and expertise; * The appellant's right to natural justice and procedural fairness was breached by the RPD Member not asking if the representative wished to provide any additional evidence from a witness or additional documentary evidence in the claim; * The appellant's right to natural justice and procedural fairness was breached by the RPD Member not asking the appellant's representative if she wished to provide any legal representations to the RPD in support of the claim before she rendered her decision. [9] Counsel for the appellant has requested that the RAD, under subsection 111(c) of the Act, set aside the determination of the RPD and refer the matter back to a different Member of the RPD for redetermination, giving the directions to the RPD that it considers appropriate. [10] Counsel for the appellant has not made any submissions as to the standard of review in this appeal. [11] The Minister has not intervened in this appeal. Consideration of New Evidence [12] Counsel for the appellant has submitted two documents in support of this appeal: a sworn affidavit of the appellant dated December 18, 2013, and a sworn affidavit of a friend, Mr. XXXX XXXX, who attended the hearing as an observer. While counsel has submitted these documents as new evidence pursuant to subsection 110(4) of the Act, he also recognized that technically the nature of the above affidavit evidence may not be admissible. [13] The affidavits contain portions that are technically not new evidence (as recognized by counsel) but they also contain portions that are. Insofar that the affidavits help me to understand the argument with respect to the no-fee counsel's performance, I will admit them as new evidence and refer to them in my analysis below. Application for an Oral Hearing [14] Counsel for the appellant has not requested an oral hearing at the RAD. Standard of Review [15] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [16] The issue identified in this appeal is whether or not the alleged misconduct of the appellant's no fee counsel resulted in a breach of procedural fairness and natural justice. As this issue entails procedural fairness and natural justice, it is reviewable on the correctness standard.2 Analysis of the Merits of the Appeal [17] I will now turn to the specific submissions by the appellant as to errors allegedly made by the RPD Member. [18] Counsel for the appellant submits that Ms. XXXX XXXX XXXX, the appellant's no fee counsel at the time of the RPD hearing, was clearly incompetent and that a new RPD hearing should be granted as this case represents an exceptional case where there is a reasonable chance the result would have been different had counsel not been incompetent. [19] The right to counsel in the context of an administrative proceeding such as an Immigration and Refugee Board (IRB) refugee hearing is not an absolute right. The law allows refugees the right to representation but it does not stipulate that every claimant must be represented. Further, the IRB plays no role with respect to who gets representation or how the representation is arranged. What is absolute is the right to a fair hearing. [20] The IRB's website contains information for refugee claimants to assist them in proceeding with their refugee claim. The IRB's Claimant's Kit on the web site provides the following instructions as to counsel: Do I need counsel to represent me in my claim? You may represent yourself. You are not required to have a counsel to represent you. However, you may decide that you want someone to help you present your case at your hearing. If this is the case, you must ensure that the counsel you choose is available for the date and time shown on your Notice to Appear for a Hearing. You must also immediately give your counsel's contact information in writing to the RPD and also to CIC or to the CBSA (whichever sent your claim to the RPD). Contact information means address, phone number, fax number and email address, if any. If you change counsel during your claim process, you must advise the RPD by completing a new Counsel Contact Information form. [21] In this case, I note that the appellant had indicated on her Basis of Claim form (BOC)3 the appointment of XXXX XXXX XXXX XXXX as counsel to help completing the BOC form but did not indicate counsel would be representing her at the hearing. In the BOC box indicating the relationship of counsel to the appellant, Ms. XXXX XXXX XXXX was identified as "friend". There was no indication that the appellant had engaged Ms. XXXX XXXX XXXX to represent her at the hearing as the appropriate box on the form was not marked. At the beginning of the RPD hearing, the RPD Member confirmed the presence of Ms. XXXX XXXX XXXX as no fee counsel for the appellant. [22] Counsel in his submissions referred to Federal Court jurisprudence in Batesh4 which established that a new hearing because of counsel incompetence should only be granted in exceptional cases and where there is a reasonable chance the result would have been different had counsel not been incompetent. [23] Counsel submits that this is an exceptional case based on various factors as discussed below: * The direct or indirect misrepresentation of skills and experience by Ms. XXXX XXXX XXXX to the appellant prior to the hearing. I note here that there is no evidence in the appeal record that XXXX XXXX XXXX had made any direct or indirect representations as to her skills and experience on refugee law matters. The appellant's affidavit on pages 47 to 50 of the appeal record indicates that she was referred to Ms. XXXX XXXX XXXX through another friend she had met. In her affidavit, the appellant states that Ms. XXXX XXXX XXXX told her that she had helped immigrants in the past and would not be charging any fees for service. As stated above, the right to counsel in the context of an IRB refugee hearing is not an absolute right. It is incumbent upon the refugee claimant to come to their own decision and perform their own due diligence as to counsel to assist in their case. There is no evidence that the appellant performed any due diligence on Ms. XXXX XXXX XXXX suitability as counsel beyond accepting the recommendation of a friend. * The lack of basic preparation of the appellant prior to the hearing. Whether or not a refugee claimant is prepared by counsel, it is the refugee claimant's responsibility to conduct such basic preparation prior to the RPD hearing. The IRB publishes extensive material on its website to assist refugee claimants in preparing their case. To simply state that the appellant had not conducted basic preparation of her case prior to the hearing represents negligence on her part and not a reviewable error by the RPD. * The lack of English language skills by XXXX XXXX XXXX and her insufficient understanding of the directions of the RPD Member during the hearing. I have reviewed the transcript provided by the appellant for this appeal and the examples referred to by counsel in his submissions. While it may be apparent that Ms. XXXX XXXX XXXX first language was not English, I find that there is no evidence to support the contention that Ms. XXXX XXXX XXXX was unable to communicate or understand the RPD Member in English. * The fact that the RPD Member acknowledged Ms. XXXX XXXX XXXX lack of experience during the hearing. The prior experience of paid or unpaid counsel at an RPD hearing is not in itself evidence of incompetence. What is important is that the RPD Member provides counsel with the opportunity to represent the refugee claimant through asking questions, presenting evidence and submissions at the hearing. A reading of the RPD hearing transcript shows that the RPD Member did perform this duty. * The failure to provide any documentary evidence, including country documents, by Ms. XXXX XXXX XXXX either prior or after the hearing. As stated on page 2 of the BOC and in the Claimant's Kit provided to refugee claimants when they submit their claim, it is the responsibility of the refugee claimant to provide any document to support their claim at least 10 days prior to the RPD hearing. Once again, this is the responsibility of the refugee claimant whether or not he or she is represented by legal counsel. The appellant appears to be suggesting that this responsibility has been transferred to counsel and this is simply not the case. * The lack of any objections by Ms. XXXX XXXX XXXX to any of the RPD Member's questions during hours of testimony at the hearing. Is difficult to understand how counsel for the appellant can submit that this represents evidence of Ms. XXXX XXXX XXXX incompetence as counsel at the RPD hearing. In any event, counsel for the appellant has not provided any examples of questions posed by the RPD Member that would have required any intervention by counsel. * The failure on the part of Ms. XXXX XXXX XXXX to recognize the importance of witness testimony to corroborate and substantiate the appellant's claims. Once again, it is incumbent on the refugee claimant to present any evidence that would support their claim including the testimony of any witness. The ability of a refugee claimant to call upon a witness is addressed in the Claimant's Kit. The appellant appears to be suggesting that this responsibility has been transferred to counsel and this is simply not the case. * The lack of any type of summary or legal submissions or representations by Ms. XXXX XXXX XXXX. A review of the RPD hearing transcript demonstrates that this is simply not the case. At the beginning of the hearing, the RPD Member stated that Ms. XXXX XXXX XXXXwould have an opportunity to ask questions and make final submissions or position or arguments regarding the claim in the end of the hearing. Both the appellant and Ms. XXXX XXXX XXXXwere provided an opportunity at the end of the hearing to do so and Ms. XXXX XXXX XXXXmade a brief statement. * The fact that the RPD member does not even mention in her reasons that Ms. XXXX attended the RPD hearing. This issue is not in itself relevant to the RPD reasons for any refugee protection case. Counsel is always provided a copy of the reason after the hearing. Depending on the context of the hearing, it may be appropriate for the RPD member to specifically refer to a question or submission by counsel for the refugee claimant. I find that in this case the RPD reasons did adequately address the appellant's claim and her testimony at the hearing. * The failure of Ms. XXXX to meet with the appellant or to be available to the appellant after the hearing to address concerns and issues. Counsel for the appellant has not explained how this is relevant in addressing the competence of Ms. XXXX as no-fee counsel prior to or during RPD hearing. This concern has no direct impact on how the appellant was represented prior to and during the RPD hearing. [24] Counsel for the appellant also referred to jurisprudence in Arndorfer5 which indicates that, where counsel incompetence is alleged, applicants must demonstrate that the previous counsel was given notice of the allegation of incompetence and a chance to respond. In the appellant's affidavit, she does not state that she attempted to contact Ms. XXXX XXXX XXXX after the hearing. The affidavit of the appellant's friend, Mr. XXXX, indicates that after the hearing "we" attempted to contact Ms. XXXX XXXX XXXXbut were unsuccessful because "we" heard that she is no longer in Canada. It is unclear if the "we" is referring to the appellant. While it is unclear from these affidavits whether or not the appellant made a direct attempt to contact Ms. XXXX XXXX XXXX, it does not appear that any attempt was made in writing to document the appellant's efforts in this respect. [25] Canadian jurisprudence6 has stated that a client who freely chooses representation must accept the consequences of this representation, subject to certain extraordinary cases where conduct of counsel will manifest such negligence that it will warrant overturning a decision [by the RAD]. [26] In order for an [appellant] to demonstrate that his or her representative's conduct (i.e. his or her incompetence) amounted to a breach of procedural fairness which would warrant the intervention of the [RAD], the [appellant] in question must satisfy a three-pronged test set out in case law:7 1. The representative's alleged acts or omissions constituted incompetence; 2. The appellant was prejudiced by the alleged conduct; and, 3. There was a miscarriage of justice in the sense that, but for the alleged conduct, there is a reasonable probability that the result of the original hearing would have been different. [27] The onus of proving the incompetence of counsel lies with the [appellant].8 I find the appellant has failed to on all three prongs of this test. [28] The appellant first had to establish that her no-fee counsel's alleged acts or omissions constituted incompetence but has provided no evidence to the effect that Ms. XXXX XXXX XXXX actions were made contrary to her instruction. The appellant has acknowledged that she (the appellant) had not prepared for her brief meeting with Ms. XXXX XXXX XXXX prior to the RPD hearing. There is no indication that Ms. XXXX XXXX XXXX made any representations as to her expertise nor that the appellant conducted any kind of due diligence as to her selection of Ms. XXXX XXXX XXXX beyond accepting the recommendation of a friend. I find that the appellant has not established that her no-fee counsel's acts or omissions constituted incompetence or were contrary to her instructions. [29] Under the second prong of the test, the appellant must establish that she was prejudiced by the alleged misconduct. Having failed under the first test to establish that Ms. XXXX actions constituted incompetence, the appellant fails to meet the second prong as well. [30] Under the third prong of the test, the appellant must establish that but for the alleged misconduct of Ms. XXXX XXXX XXXX, there is a reasonable probability that the result of the original RPD hearing would have been different. In this appeal, the appellant has not made any substantial arguments nor presented any new evidence as to the merits of her original claim for refugee protection. No submissions have been made that the RPD Member's findings were unreasonable. I find that the appellant has not established that but for the alleged misconduct of Ms. XXXX-XXXX there is a reasonable probability that the result of the original RPD hearing would have been different. [31] For the reasons outlined above, I find that the alleged incompetence of the appellant's no fee counsel does not amount to a breach of procedural fairness or natural justice which would allow the RAD to overturn the RPD's decision. REMEDY [32] For all these reasons, I confirm the determination of the RPD that the appellant is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. (signed) "Douglas Fortney" April 1, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29, at para 100; Sketchley v Canada (Attorney General), 2005 FCA 404, at para 54. 3 Refugee Protection Division Record, p. 18. 4 Batesh v Canada (Minister of Citizenship and Immigration), 2008 FC 173. 5 Arndorf v. Canada ((Minister of Citizenship and Immigration), 2001 FCT 20. 6 Huynh v Canada (Minister of Employment and Immigration), [1993] FCJ No 642, at para 23, 21 Imm LR (2d) 18 and Robles v Canada (Minister of Citizenship and Immigration), 2003 FCT 374, at para 31, [2003] FCJ No 520). 7 R v GDB, 2000 SCC 22, at paras. 26-29,[2000] 1 SCR 520 and Yang v Canada (Minister of Citizenship and Immigration), 2008 FC 269, at paras. 17 and 24,[2008] FCJ No 344 [Yang]. 8 Yang, supra, at para. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-03290 RAD.25.02 (February 7, 2014)