VC0-00166

RAD File / Dossier de la SAR : VC0-00166 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision April 29, 2021 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Amado Alexis Garcia Claros 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] The Appellant XXXX XXXX XXXX claims to be a citizen of Somalia who fears militant groups like Al-Shabaab and the community at large. [2] The Refugee Protection Division (RPD) found that the Appellant was not a credible witness with respect to a central element of his claim, the death of his father. The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened and presented evidence on credibility and the Appellant's father. [3] The Appellant argues that the RPD deprived the Appellant of natural justice and erred in finding that he was not represented, not postponing the hearing and not allowing the testimony of the Appellant's witness. I have accepted the Appellant's former counsel's affidavit as new evidence under section 110(4) of the Immigration and Refugee Protection Act (IRPA). [4] I find that there was a breach of natural justice and procedural fairness. The appeal is allowed and I refer the matter to the RPD for redetermination by a differently constituted panel. DECISION [5] The appeal is allowed. I send this matter back to the RPD to be redetermined. NEW EVIDENCE The evidence presented by the Appellant is accepted [6] The Appellant's claim was heard on November 29, 2019, and the RPD gave its decision on December 9, 2019. The Appellant submitted his notice of appeal to the Refugee Appeal Division (RAD) on January 6, 2020, and his record on March 14, 2020. [7] Section 110(4) of the IRPA provides that an appellant 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 rejection. In Singh,1 the Federal Court of Appeal dictates a narrow interpretation of section 110(4): the conditions set out therein must be met, and there is no room for discretion on the part of the RAD. If the section 110(4) threshold is met, then the new evidence must also meet jurisprudential requirements of credibility, relevance and newness.2 [8] The Appellant presented the affidavit of his previous counsel XXXX XXXX sworn January 29, 2020,3 as new evidence with the perfection of his appeal. [9] The RAD Rules4 are very clear that the Appellant's memorandum must include full and detailed submissions regarding how any new evidence meets the requirements of section 110(4). [10] The Appellant submits that the XXXX affidavit addresses procedural issues that arose at the RPD hearing. The procedural issues only became evident in the RPD decision and could not have been anticipated. The Appellant also submits that the XXXX affidavit supports his claim of breach of natural justice. [11] I find that the XXXX affidavit passes the temporal threshold of section 110(4) and meets the jurisprudential requirements of credibility, relevance and newness and is admissible as new evidence. ANALYSIS [12] I have reviewed the record, the new evidence and the submissions of the Appellant and find, on a balance of probabilities, there was a breach of natural justice and procedural fairness when the Appellant's hearing was not adjourned. RPD hearing [13] Confusion about the Appellant's counsel was clear at the outset of the hearing:5 RPD: We are on the record. Mister XXXX, is your counsel present? CLAIMANT: [inaudible] RPD: Sorry, Madam Interpreter? INTERPRETER: Do you mind if I ask him to repeat what he just said? I couldn't hear him. MEMBER: Yeah, of course. CLAIMANT (with interpreter): The -- my counsel came at ten o'clock. For some reason, he had the impression that it was a morning hearing and not an afternoon one. So, he said that 'I -- I don't have the time,' that 'I'm not free in the afternoon, so we will have to request the court to give us another date.' RPD: You're -- sorry, so you're asking for an adjournment? CLAIMANT (with interpreter): That's what my lawyer said, not me. RPD: Are you -- well, it's your claim, and you are here. Are you -- are you asking for an adjournment, or are you ready to proceed? CLAIMANT: I'm ready to proceed. INTERPRETER: He just said the same thing in Somali. 'I'm ready to proceed.' RPD: Okay. Well, from our file, we do not have a notice that XXXX XXXX (ph) is your representative. INTERPRETER: Sorry, sir, 'we have' or 'we don't'? RPD: We do not have. We have letters from XXXX XXXXsaying that you intended to call one or two witnesses, but nothing from him -- no representative form. And so, he is not counsel of -- of record. So, you're indicating that you are ready to proceed. That would be proceeding by yourself without counsel. Now, the chairperson has issued guidelines -- guideline number 6 -- about changing the date or time of a hearing. The guideline says that a lawyer is expected to be ready at the time and date set for the hearing. That counsel is not able to appear because counsel was mistaken about the time is not an acceptable excuse. So, you indicate that you're ready to proceed. The counsel is not counsel of record, and his explanation for not appearing is not a reasonable explanation. So, we will be proceeding now. New evidence from the Appellant's former counsel [14] In his affidavit XXXX XXXX, a barrister and solicitor practising in Winnipeg says that he was the Appellant's counsel having been granted legal aid coverage in October 2019 after which he faxed a "Use of Representative" form to the Immigration and Refugee Board (IRB) at 604-666-3043. On November 7, 2019, Mr. XXXX says faxed a notice of witnesses and translator request to the same number and attached a copy of the letter as an exhibit to his affidavit. [15] On November 8, 2019 Mr. XXXX says he was contacted by an agent of the RPD who indicated they had received the witnesses and translator request, but that they still did not have a copy of the "Use of Representative" form. On the same call the RPD asked if Mr. XXXX was aware of the Appellant's hearing date, and he confirmed that he was aware that the hearing was on November 29, 2019. According to Mr. XXXX, the time of the hearing was not discussed. After the telephone call Mr. XXXX says that he attempted to re-fax the "Use of Representative" form. [16] On November 27, 2019, Mr. XXXX says that he contacted the RPD about a different file and while on that call asked about the status of the translator request and the Appellant's documentation. He was advised that the RPD was not in receipt of the documents. When he checked his fax log, he determined that the November 8, 2019 transmission was not successfully completed. Mr. XXXX says he immediately re-faxed the documents. A copy of the fax report is attached as an exhibit to his affidavit. [17] On November 28, 2019, Mr. XXXX says that his office received a telephone call from the RPD indicating that the "Use of Representative" form and other documentation was not copied to the Minister. [18] On November 29, 2019, Mr. XXXX says that he attended for the Appellant's hearing at 10:00 am to find out that it was scheduled for 2:00 pm and conflicted with a Federal Court appearance. Mr. XXXX says that he immediately sent a request explaining the situation and requesting an adjournment to specific dates in December and January which he attached as an exhibit to his affidavit. The Appellant's submissions [19] The Appellant submits that he was "deprived of fair representation when the hearing was railroaded in the absence of counsel" in a "clear violation of natural justice."6 [20] The Appellant argues that the RPD decision erroneously states that the "RPD has never received a counsel contact information form or notice of representation without a fee in this matter to indicate that the claimant was represented."7 [21] I find that the record is clear that the RPD member erred in finding that the RPD did not receive notice that Mr. XXXX was the Appellant's counsel of record. I also find that the RPD member did not receive the written notice from Mr. XXXX that he was seeking an adjournment. [22] The Appellant also argues that "he was not comfortable and in fact begged that the hearing is not continued since he was without representation. However, the member decided to proceed with the hearing instead."8 [23] I find that this statement is not true and that the record shows that the Appellant told the RPD at the hearing that he was ready to proceed without his counsel. The law governing the postponement of RPD proceedings [24] "There is no doubt that procedural fairness is an overarching requirement of hearings at the IRB. Subsection 162(2) of the IRPA requires the RPD to deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit."9 [25] In 1993 the Federal Court of Appeal decision in Siloch10 identified the following factors to be considered by an administrative tribunal in responding to a request for a postponement: a) whether the applicant has done everything in her power to be represented by counsel; b) the number of previous adjournments granted; c) the length of time for which the adjournment is being sought; d) the effect on the immigration system; e) would the adjournment needlessly delay, impede or paralyse the conduct of the inquiry; f) the fault or blame to be placed on the applicant for not being ready; g) were any previous adjournments granted on a peremptory basis; h) any other relevant factors. [26] The RPD cited the Chairperson Guideline 6: Scheduling and Changing Date or Time of a Proceeding11 as saying that a lawyer is expected to be ready at the time and date set for the hearing and that counsel is not able to appear because counsel was mistaken about the time is not an acceptable excuse. The RPD proceeded with the hearing because the Appellant indicated that he was ready, the counsel is not counsel of record and the counsel's explanation for not appearing is not a reasonable explanation. [27] Guideline 6 says: 7.2 In light of the amendments to IRPA and the Regulations, the RPD takes a strict approach to scheduling and to applications to change the date or time of a hearing. Compliance with the mandatory regulatory timeframes for conducting RPD hearings is a guiding principle. 7.3 The RPD expects parties and their counsel to be ready to proceed on the date and time scheduled for the hearing. Applications to change the date or time of the hearing will be granted only in exceptional circumstances and, where the application would cause the hearing to be heard outside the statutory timeframes, only if the evidence indicates that it is necessary in order to conform with the principles of natural justice. 7.4 Where an application to change the date or time of a hearing is granted, the RPD will normally reschedule the hearing within ten working days. Counsel and the parties are expected to be prepared to proceed on a date fixed during that time period. [28] Rule 54 of the RPD Rules12 also outline the process a claimant is to follow to change the date or time of a proceeding: 54 (1) Subject to subrule (5), an application to change the date or time of a proceeding must be made in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration. (2) The application must (a) be made without delay; (b) be received by the Division no later than three working days before the date fixed for the proceeding, unless the application is made for medical reasons or other emergencies; and (c) include at least three dates and times, which are no later than 10 working days after the date originally fixed for the proceeding, on which the party is available to start or continue the proceeding. (4) Subject to subrule (5), the Division must not allow the application unless there are exceptional circumstances, such as (a) the change is required to accommodate a vulnerable person; or (b) an emergency or other development outside the party's control and the party has acted diligently. The hearing was not fair [29] Although there are facts and arguments on both sides, I find, following my review of the record and applying the law, that, on a balance of probabilities, there was a breach of natural and justice and procedural fairness for the following reasons. [30] First, it appears that the RPD received notice that the Appellant was represented by counsel, which was not acknowledged by the member at the hearing or in the RPD's reasons. [31] Second, the RPD appears to have relied solely on the testimony of the Appellant to make its adjournment decision without taking into account the written submissions of the Appellant's counsel made immediately following his realization that he could not attend the hearing in compliance with Rule 54. [32] Third, Appellant's counsel complied with Rule 54(2) in making his adjournment request without delay and offered three dates within the required 10 working days and an additional eight dates. [33] Fourth, most of the Solich factors appear to favour a postponement: a) the Appellant's agreement to proceed without his counsel is the only negative factor; b) one previous adjournment was granted because the Appellant did not receive the Minister's disclosure; c) Appellant's counsel indicated availability for three dates within ten working days of the original hearing date; d) a positive effect on the immigration system would be to give the Minister notice of the Appellant's witnesses (see below); e) the adjournment would not needlessly delay, impede or paralyze the conduct of the inquiry; f) no fault or blame could be placed on the Appellant for not being ready; g) it is not clear whether any previous adjournments granted on a peremptory basis; and h) the confusion about whether the Appellant was represented by counsel was a relevant factor. [34] Fifth, an adjournment would have allowed the Appellant to address the RPD's concerns about giving notice to the Minister of the witnesses he was seeking to call, as the RPD refused to hear from the Appellant's witnesses because "the prejudice to the Minister from the late notice is more significant than the relevance and potential probative value of the witness."13 [35] Sixth, Guideline 6 recognizes the overriding importance of the principle of natural justice. [36] Seventh, Rule 54 recognizes that there can be exceptional circumstances that are outside the Appellant's control. [37] Finally, while there is no absolute right to counsel, there is a right to a fair hearing, particularly for those who are unrepresented. For reasons beyond his control the Appellant, who expected to be represented by counsel, found himself unrepresented and his request for witnesses denied.14 CONCLUSION [38] The appeal is allowed. I send this matter back to the RPD to be redetermined by a differently constituted panel. (signed) "Susan Brown" Susan Brown April 29, 2021 Date 1 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 2 Ibid., and Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 P-2, Appellant's Record, pages 9-18. 4 Refugee Appeal Division Rules made under the IRPA SOR/2012-257 (RAD Rules) rules 3(3)(e) and 3(3)(g)(iii). 5 Transcript of hearing of November 29, 2019, page 2. 6 P-2, Appellant's Record, page 6, Appellant's Written Submission. 7 RPD-1, RPD Record, page 6, RPD Reasons, para. 18. 8 P-2, Appellant's Record, page 7, Appellant's Written Submission. 9 Trboljevac v. Canada (Citizenship and Immigration) 2020 FC 26 para. 36. 10 Dias v. Canada (Minister of Employment and Immigration) 2003 FCT 84 para. 14 citing Siloch v. Canada (Minister of Employment and Immigration) (1993), 151 N.R. 76 (F.C.A.). 11 Scheduling and Changing the Date or Time of a Proceeding, Guidelines Issued by the Chairperson, Pursuant to Paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: April 1, 2010, Amended December 15, 2012 (Guideline 6). 12 Refugee Protection Division Rules, SOR2012/256, Rule 54. 13 RPD-1, RPD Record, page 6, RPD Reasons, para. 6. 14 Aiyathurai v. Canada (Citizenship and Immigration), 2018 FC 1278. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-00166 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