TB8-14643

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 : TB8-14643 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 8, 2019 Date de la décision Panel M. Oh Tribunal Counsel for the person(s) who is(are)the subject of the appeal Roy C Amadi 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 INTRODUCTION [1] XXXX XXXX XXXX ("the Appellant") appeals a decision of the Refugee Protection Division ("RPD"), rejecting her claim for refugee protection. The Appellant is a citizen of Nigeria and fears persecution on the basis of her sexual orientation. She argues that the RPD breached its duty of procedural fairness, that the RPD failed to properly assess her sexual orientation, and that the RPD failed to consider her additional grounds for refugee protection, relating to persecution she allegedly experienced from her employer in Canada. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the appeal is dismissed. There is no merit to the Appellant's arguments. After conducting an independent assessment of the evidence, I agree with the RPD's credibility findings and confirm the RPD's negative determination. BACKGROUND AND PROCEDURAL HISTORY [3] The Appellant arrived in Canada in XXXX 2015, intending to work as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Alberta. She claims that in early XXXX 2015, she met a woman in Edmonton by the name of XXXX. The two began to see other each other, and at times they would spend the night at the Appellant's place of residence. As a XXXX XXXX XXXX XXXX, however, the Appellant was residing in her employer's home. On XXXX XXXX, 2015, the Appellant alleges that her female employer found them in a state of undress. She supposedly assaulted the Appellant, and told her that she was not going to have a homosexual living in her home. As a result of this incident, the Appellant alleges that she was terminated and her employers arranged for her to return to Nigeria on XXXX XXXX XXXX 2015. During a flight transfer in Toronto, the Appellant left the airport and later initiated a refugee claim. She alleges that in XXXX 2015, her male employer traveled to Nigeria and spread the news that she is a lesbian. [4] The Minister of Citizenship and Immigration ("the Minister") intervened in the Appellant's claim on the basis of credibility. The initial RPD member who heard the claim was unable to complete the decision. As a result, the claim was assigned to another panel, which heard the claim over the course of two sittings on January 24, 2018 and March 23, 2018. The RPD rejected the claim due to the Appellant's lack of credibility. Role of the Refugee Appeal Division [5] The jurisprudence establishes that the Refugee Appeal Division ("RAD") is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.1 [6] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at my own independent findings based on the evidence before me. Admissibility of New Evidence and Request for Oral Hearing [7] The only new evidence submitted by the Appellant is a personal affidavit, sworn by her on July 11, 2018.2 I have admitted this document on appeal. [8] The IRPA limits the ability of appellants to present new evidence to the RAD. Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.3 [9] The Appellant's affidavit explains her belief that she was not effectively represented by her previous counsel at her refugee hearing. She states that her counsel, Mercy Dadepo, was under a lot of stress, and that she later learned that her counsel had been investigated and was undergoing disciplinary proceedings with the Law Society of Ontario ("LSO") and other agencies. She explains that it was upon receiving a letter from the RPD in May 2018 that she learned that her counsel could no longer represent her and that she learned of her counsel's issues. A copy of the RPD's letter, which does not form part of the RPD Record, is attached as an exhibit to the Appellant's affidavit.4 As the Appellant only learned of her counsel's suspension in early May 2018, I am willing to accept that she could not reasonably have been expected to present such an affidavit, as it was not until her appeal that she would have known that her current counsel would be arguing that there was a breach of procedural fairness. I agree that the affidavit has sufficient credibility, relevance, and newness in shedding light on some of the facts surrounding her argument that a breach of procedural fairness occurred. [10] Parts of the Appellant's affidavit include what are essentially legal opinions, rather than facts to which she can attest in an affidavit. To be clear, the only admissible portions of the affidavit are those that speak to her direct observations of her former counsel's behaviour, information about when and how the Appellant learned of her counsel's disciplinary proceedings with the LSO, and the letter from the RPD informing her of her counsel's disqualification. [11] The Appellant is not clear as to whether she requests an oral hearing. The affidavit does not raise any serious issues with respect to the Appellant's credibility, nor is it central to the decision with respect to the refugee protection claim, nor would its acceptance justify allowing or rejecting the refugee protection claim. As none of the criteria of s. 110(6) of the IRPA are met, an oral hearing will not be held. MERITS OF THE APPEAL [12] The Appellant argues the following on appeal: a) That a breach of procedural fairness occurred as a result of matters arising from her previous counsel's incompetent representation and the suspension of her law licence; b) That the RPD erred in its assessment of the Appellant's sexual orientation; and c) That the RPD erred by failing to consider the gender-based aspect of the Appellant's claim of persecution by her former employers in Canada. [13] These issues will each be addressed below. a) Breach of procedural fairness arising from previous counsel's representation and suspension [14] There are three arguments presented as to how a breach of procedural fairness occurred in the Appellant's case as a result of issues pertaining to her previous counsel. First, the Appellant argues that she received incompetent representation from her former counsel. Second, the Appellant argues that the RPD breached procedural fairness by rendering its decision on June 1, 2018, despite being aware of her former counsel's suspension. Third, she argues that the RPD had a duty to notify her of the LSO's investigation and disciplinary actions against her former counsel. I am not persuaded by any of these arguments. Breach of procedural fairness due to incompetent representation at RPD [15] The first issue is whether the Appellant's former counsel provided her with incompetent representation. She describes that the stress of her counsel's disciplinary proceedings caused her to fail to diligently represent her. The Appellant's memorandum indicates that her counsel "skipped and failed to object to various procedural irregularities that marred the conduct of her refugee claim hearing". It states that there were vital opportunities missed to aggressively cross-examine the Minister's witness and to demand disclosure and other documents. The Appellant's affidavit also describes her observation that her counsel was under a lot of stress during the period leading up to and during her hearing. [16] The jurisprudence establishes that there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus rests on the Appellant to establish that her counsel's representation was incompetent.5 Where an individual wishes to establish that a breach of procedural fairness occurred due to deficiencies in their former counsel's representation, they must: i. Provide corroboration by giving notice to former counsel and providing them with an opportunity to respond; ii. Establish that former counsel's act or omission constituted incompetence without the benefit and wisdom of hindsight; and iii. Establish that the outcome would have been different but for the incompetence.6 [17] The Appellant has not satisfied any of the above three criteria. There is nothing to indicate that Ms. Dadepo has been given notice of these allegations. In addition, the Appellant has not demonstrated that Ms. Dadepo was somehow incompetent in her representation. The Appellant's affidavit and memorandum are very vague as to what Ms. Dadepo should have done differently that would have led to a different outcome. The Appellant has not specified what procedural irregularities occurred in the case that her counsel ought to have objected to. She does not specify what disclosure or other documents ought to have been demanded, or why. In terms of Ms. Dadepo's cross-examination of the Minister's witness, I note that she did cross-examine the witness on relevant issues. She questioned him in relation to the timeline that the witness described in his evidence. She asked him about when he had discovered that the Appellant was pregnant, whether he had given her some time limit to find other employment, and when he had booked her flight back to Nigeria. This was relevant, and it is obvious from the hearing record that Ms. Dadepo was attempting to question how the witness had supposedly taken so many steps to accommodate the Appellant's pregnancy initially, such as attending house viewings, putting in an offer on a larger house, and purchasing a larger vehicle, if he had discovered her pregnancy on XXXX XXXX XXXX 2015, but also booked her flight ticket on XXXX XXXX, 2015. This was an important issue, as the Appellant claimed that her employer was already aware of her pregnancy before she arrived in Canada, and that it was due to her employer's homophobia that she was terminated. [18] The Appellant's argument cannot succeed, as the Appellant has not met any of the criteria to establish a breach of procedural fairness due to counsel incompetence. RPD's actions in rendering a decision one month after advising the Appellant of her counsel's disqualification [19] The second procedural fairness argument has to do with the RPD's decision to render a decision despite the disqualification of the Appellant's former counsel. The Appellant argues that although she retained her current counsel after the RPD advised her that her former counsel had been suspended, her current counsel had not participated in any of the hearings. Under these circumstances, the Appellant believes that the RPD erred in proceeding to render its decision. [20] Again, I am unpersuaded by this argument. [21] The most recent RPD panel heard the Appellant's claim over the course of two sittings, which took place on January 24, 2018 and March 23, 2018. At the conclusion of the last hearing, Ms. Dadepo delivered oral submissions. The oral submissions supplemented a set of written submissions that had already been provided in June 2016 to the previous RPD panel.7 The RPD reserved its decision at the end of the March 23, 2018 hearing. [22] It appears that during this period in March 2018, Ms. Dadepo was the subject of a complaint to the LSO, which resulted in a hearing before the Law Society Tribunal. The LSO's motion to suspend the Appellant's former counsel is a matter of public record. Approximately one month after the Appellant's final hearing, the Law Society Tribunal ordered the suspension of Ms. Dadepo's licence to practise law. The decision is dated April 19, 2018. The motion was based on complaints that Ms. Dadepo had falsely billed Legal Aid Ontario, that she had counseled a client to be dishonest, and that she had commissioned a false statutory declaration.8 [23] About two weeks following Ms. Dadepo's suspension, the RPD issued a letter to the Appellant, advising her that Ms. Dadepo could no longer represent her. Upon the suspension of her law licence, as paid counsel, Ms. Dadepo no longer met the definition of an "authorized representative". The letter specifically advised the Appellant that she had the right to be represented by another counsel.9 The Appellant then retained her current counsel, Mr. Amadi, who became counsel of record at the RPD. He is listed on the RPD's decision as counsel. [24] I see no error in the RPD's actions. Within a relatively short period of time, the RPD advised the Appellant of her counsel's disqualification. It advised her that she could retain new counsel, which she did. It was open to the Appellant's current counsel to make any applications to the RPD as needed due to the late change of counsel. The RPD Record does not contain any indication that the Appellant's current counsel made any such applications, nor has the Appellant brought any evidence of this to the RAD's attention on appeal. Neither the Appellant nor her counsel indicate that there was anything inadequate about Ms. Dadepo's written or oral submissions. As the case was reserved, the only step remaining was for the RPD to render a decision, in the absence of any applications from the Appellant's new counsel. Under these circumstances, I am not satisfied that the Appellant has established that there was a breach of procedural fairness. Duty to notify the Appellant of investigations or disciplinary proceedings [25] Finally, the Appellant also argues that the RPD had a duty to notify her of the LSO's investigation and disciplinary proceedings against Ms. Dadepo. I disagree. [26] The Appellant highlights the fact that she has little education, no knowledge of the Canadian legal process, and that her former counsel was facing disciplinary action due to professional misconduct. Although the RPD did notify the Appellant after Ms. Dadepo's suspension, the issue appears to be around the timing of the RPD's actions. The Appellant seems to argue that the RPD had a duty to inform her of the LSO's actions against her counsel well before the Law Society Tribunal decided to suspend her licence. [27] I am unable to agree with the Appellant's argument. [28] The Appellant has not cited any authority for her argument. Instead, the jurisprudence establishes that as a general principle, a person must accept the consequences of his or her choice of counsel, unless their counsel's incompetent representation resulted in a miscarriage of justice that was brought about by substantial prejudice.10 The Appellant's failure to demonstrate incompetent representation by Ms. Dadepo is therefore fatal to this argument. [29] In the absence of clearly incompetent representation, the RPD did not have a duty to interfere in the Appellant's choice of counsel by keeping her apprised of complaints made against her counsel that were unrelated to her own claim. Such a practice would undermine the lawyer-client relationship, which is incompatible with the RPD's role as an impartial and independent tribunal. This is especially so where, as here, the complaint against Ms. Dadepo had not yet gone before the Law Society Tribunal. [30] For the above reasons, I do not agree with any of the Appellant's arguments, and I find no breach of procedural fairness from Ms. Dadepo's representation or from the RPD's actions during or after the LSO's proceedings against her. b) The RPD's assessment of the Appellant's sexual orientation [31] The Appellant also argues that the RPD erred in its assessment of her sexual orientation. She challenges the RPD's approach in focusing on what she describes as "peripheral issues", and she also disputes the RPD's treatment of her corroborating evidence. I do not agree that the RPD erred. Focus on peripheral issues [32] The RPD found that the Appellant was a wholly unreliable witness, and found numerous discrepancies in her evidence. Although the Appellant does not specifically challenge the RPD's reasoning in reaching these credibility findings, she characterizes them as peripheral. She points to the fact that the RPD failed to refer to her testimony about her sexual orientation, which is the determinative matter in her claim. She argues that in the ultimate weighing of the evidence, her supporting documents and oral testimony were sufficient to establish her core allegations on a balance of probabilities in regard to her sexual orientation. [33] I cannot agree with the Appellant on this issue. It is true that the Appellant gave oral testimony about her sexual orientation, however the RPD's silence on this testimony does not mean that it simply ignored or overlooked it. In general, the RPD does not have a duty to mention every piece of evidence it considers, and in this case it had no duty to refer to the Appellant's oral testimony about her sexual orientation. The fact that the Appellant was consistent in some areas of her testimony does not mean that the RPD had to specifically describe that testimony and explicitly weigh it. The focus of the reasons is to explain why the RPD rejected the claim, and why the panel found that the Appellant was a wholly unreliable witness. In this context, the RPD did not err by failing to elaborate on the Appellant's testimony about her sexual orientation. [34] There was nothing peripheral about the RPD's findings. The Appellant's claim was based on her sexual orientation as a lesbian. She described that she made a refugee claim because her Canadian employers found her with another woman, immediately terminated her, arranged for her departure to Nigeria, and personally went to Nigeria to spread news of her sexual orientation to others there. [35] These allegations were directly contradicted by the Appellant's former employer as well as by the documentary evidence. Despite claiming that her termination and the arrangements to have her return to Nigeria were prompted by her employers' discovery of her same-sex relationship on XXXX XXXX XXXX 2015, the RPD found that the Appellant's flight reservation for her return to Nigeria had already been booked a number of weeks in advance of the date on which her employer supposedly discovered her sexual orientation. This seriously undermined her allegations about the event that precipitated her refugee claim. [36] The credibility of this story was also undermined by testimony from the Appellant's former employer, who gave a very different reason for her termination. He testified that he terminated her because the Appellant had breached a fundamental term of her contract by failing to disclose that she was pregnant when she was hired. He explained that when the Appellant eventually disclosed the pregnancy to his wife, she was still lying about how far along she was with the pregnancy. The Appellant's Record of Employment indicated that her last date of employment was on XXXX XXXX, 2015, a month prior to the date on which the Appellant claimed she was discovered by her employer with XXXX.11 On XXXX XXXX XXXX 2015, a flight was booked for the Appellant, scheduled to depart on XXXX XXXX XXXX 2015.12 Medical documents from a XXXX XXXX, 2015 visit referred to how the Appellant was planning to return to Nigeria in order to give birth to her child there, even though this visit took place after her employer supposedly discovered her sexual orientation.13 The employer also denied having returned to Nigeria as alleged by the Appellant. He testified that the last time he was there was in 2013. [37] In addition, despite claiming that she is lesbian, unmarried, and that she has never had sex with a man apart from a single occasion that led to her pregnancy, this was contradicted by the Appellant's former employer, as well as the Appellant's own evidence. A letter from the Appellant's girlfriend in Nigeria indicates how the Appellant was sleeping with men when they first began dating.14 Though the Appellant claimed that her only sexual experience with a man took place in late XXXX 2014 after a party, her child's birth certificate indicated that her child would have been conceived in XXXX 2014. The Appellant's former employer also testified that the Appellant was married to a man in Nigeria, and that he had personally spoken to her husband over the phone, though at the time he was led to believe that he was only a boyfriend. In a written statement, he wrote about how, in the first few days of her employment, the Appellant began to inquire as to how she could bring her boyfriend over to Canada. [38] That is not to say that genuine lesbians would never enter into marriages or sexual relations with men, especially in countries such as Nigeria where same-sex relations are criminalized. The Chairperson's Guidelines on Sexual Orientation and Gender Identity and Expression caution against making precisely these sorts of inappropriate assumptions. However, in this case the Appellant's own evidence was that she never had a boyfriend, that she was never married, and that she had only a single sexual experience with a man. The issue here is around the utter lack of consistency in the evidence. The discrepancies about her relationship and marital history, and the serious inconsistencies regarding the incident that prompted her to make a refugee claim, go to the very core of her claim. I agree with the RPD's assessment. I am unpersuaded that these credibility issues were peripheral to the core factual matters in the claim. Treatment of corroborative evidence [39] The Appellant submits that there were several important pieces of evidence submitted by her that the RPD erroneously gave no weight as a result of tainted evidence from her former employer. The Appellant describes that the RPD did not conduct a thorough analysis of her corroborative evidence. [40] The Appellant highlights the following evidence in her argument: Letters from the XXXX XXXX XXXX, evidence from the XXXX XXXX, a letter from XXXX XXXX, a letter from the Appellant's girlfriend XXXX in Nigeria, threatening emails from family members, and a letter from the Appellant's girlfriend in Canada. [41] There is no merit to this argument. It was not an error for the RPD to prefer her employer's testimony over hers, given that the employer's testimony was far more consistent with the documentary evidence. The RPD correctly made several credibility findings that undermined the Appellant's allegations about her sexual orientation as well as the incident that caused her to seek refugee protection. [42] I find that the RPD in fact conducted a thorough assessment of the Appellant's corroborating evidence. In its reasons, the RPD addressed each of the documents highlighted by the Appellant in her memorandum. The RPD noted that the letters and emails were not accompanied by any identification documents, and that the emails were vulnerable to fabrication. The RPD noted that the letter from XXXX contradicted the Appellant's testimony about her sexual history, and that the Appellant's testimony about XXXX was very vague. The RPD also recognized that there was little probative value in the evidence from the XXXX XXXX, the XXXX XXXX XXXX, and XXXX XXXX. The Appellant only became active in those organizations after she initiated her sexual orientation-based refugee claim. Anyone, including those simply claiming to be lesbians or bisexuals, are able to participate with those organizations. [43] Although the evidence from the Appellant's current partner was accompanied by identification, the RPD noted it was unable to test the credibility of the author's statements. The Appellant intended to call her as a witness, but she was not available to attend the hearing due to an appointment of some sort. In the face of significant credibility issues, the RPD gave the support letter and accompanying documents little weight. [44] The RPD correctly identified a number of credibility issues, and in my own independent assessment of the evidence, I agree that the Appellant's corroborative evidence was not sufficient to overcome those credibility concerns. The RPD did not commit an error. c) Failure to consider gender-based claim of persecution [45] Finally, the Appellant argues that the RPD erred by failing to consider all protection grounds that arose from her claim, including gender-related persecution against her in Canada. However I find no error in the RPD's decision. [46] The Appellant describes that her former employer is an agent of persecution, and that he terminated her due to her pregnancy and attempted to forcibly return her to Nigeria. She argues that this constitutes gender-based persecution. Even if this argument was not raised at the RPD, the Appellant submits that the RPD ought to have considered all the grounds for refugee status that flowed from the facts. [47] The argument is entirely without merit. I assume that the Appellant does not mean to say that she has a well-founded fear of persecution against Canada, yet I cannot see what remains of the Appellant's claim against Nigeria after the RPD found her to be a wholly unreliable witness and dismissed the allegations around her sexual orientation. [48] The RPD accepted that the Appellant had been terminated by her employer due to her pregnancy. The RPD found that the pregnancy had not been disclosed to the employer, and noted that the employer considered this to be a breach of a fundamental term of their contract. The Appellant was, at that time, on a closed work permit in Canada. Her employment was limited to a single employer, and she was prohibited from any other work.15 Her employer testified that the Appellant indicated to him that she wished to return to Nigeria. Under the circumstances, given the termination of the Appellant's employment, her employer paid for the Appellant's flight to return to Nigeria. [49] The termination of the Appellant's employment and her employer's attempts to facilitate her return to Nigeria do not constitute persecution. Moreover, the assessment of risk in refugee protection is forward-looking. The Appellant's former employers are Canadian citizens who reside in Alberta. There is no credible evidence to suggest that they wish to see her harmed. I do not see what risk arises to the Appellant in Nigeria as a result of her former employer's actions. There was no residual claim to consider, and as such I do not agree that the RPD erred. CONCLUSION [50] The Appellant has not demonstrated any error in the RPD's decision. As I agree with the RPD's determination on an independent assessment, the RPD's negative determination is confirmed. The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Oh" M. Oh April 8, 2019 Date 1M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; see also Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-18), Diner, November 14, 2018; 2018 FC 1145. 2 Exhibit P-2, Appellant's Record, pp. 18-22. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 Exhibit P-2, Appellant's Record, p. 113. 5 R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520 at paras 26-29; see also Memari v. Canada (Citizenship and Immigration), 2010 FC 1196 at paras 33-36. 6 Galyas v. Canada (Citizenship and Immigration), 2013 FC 250 at paras 83-84; see also Badihi v. Canada (Citizenship and Immigration), 2017 FC 64 at paras 17-19. 7 Exhibit RPD-1, RPD Record, Exhibit 16, pp. 168-173. 8 Law Society of Upper Canada v. Dadepo, 2018 ONLSTH 48 (CanLII). 9 Exhibit P-2, Appellant's Record, at pp. 113-114. 10 Cove v. Canada (Citizenship and Immigration), 2001 FCT 266 at para 6; see also Robles v. Canada (Citizenship and Immigration), 2003 FCT 374 at paras 31-35. 11 Exhibit RPD-1, RPD Record, Exhibit 18, p. 195. 12 Exhibit RPD-1, RPD Record, Exhibit 18, p. 221. 13 Exhibit RPD-1, RPD Record, Exhibit 24, p. 244. 14 Exhibit RPD-1, RPD Record, Exhibit 6, p. 51. 15 Exhibit RPD-1, RPD Record, Exhibit 7, p. 60. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB8-14643