MB7-04536

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. / No de dossier de la SAR : MB7-04536 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision February 19, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Aishah Nofal Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre APPLICATION TO REOPEN AN APPEAL [1] In this case, the Refugee Appeal Division (RAD) dismissed the appeal.1 [2] On October 30, 2018, the appellant, XXXX XXXX XXXX XXXX, submitted to the RAD an application to reopen the appeal based on the fact that his previous counsel, Felipe Morales, provided inadequate representation, which constitutes a breach of natural justice, and that the RAD erred in interpreting the testimony he gave during the hearing and disregarded some of the evidence.2 An application for judicial review was also submitted to the Federal Court, and the prothonotary for the Court rendered a decision allowing the application for review to remain pending until a decision is made by the RAD on the reopening of the appeal.3 The RAD denies the application to reopen. My reasoning is as follows. [3] Subrule 49(6) of the Refugee Appeal Division Rules (RAD Rules) states that the RAD cannot allow the application to reopen an appeal unless it is established that there was a failure to observe a principle of natural justice. Subrule 49(7) of the RAD Rules indicates that, in deciding the application to reopen, the RAD must consider any relevant factors.4 [4] According to the case law, a party must suffer the consequences of his or her own counsel.5 However, there is a distinction to be drawn between a lawyer's malfeasance and nonfeasance.6 In this case, the counsel in question, Felipe Morales, categorically denied the errors the appellant accused him of committing and submitted that he had acted appropriately and even with zeal.7 [5] In his affidavit and his memorandum, the appellant referred to problems he had with his previous lawyer allegedly prior to his hearing before the Refugee Protection Division (RPD), and with respect to the contents of his Basis of Claim Form (BOC Form) and evidence he intended to submit before the RPD.8 He also submitted as evidence a letter signed on November 2, 2018, by a social worker for the Programme régional d'accueil et d'intégration des demandeurs d'asile [regional program for the settlement and integration of refugee protection claimants] (PRAIDA), indicating that on January 16, 2017, he went to PRAIDA and informed them that his counsel, Mr. Larochelle, had been removed as his counsel of record, and complained that the interpreter had not properly interpreted his remarks in the BOC Form concerning the reasons why he was imprisoned and that the interpreter had written in French on the form, which prevented him from verifying his story.9 [6] Approximately one month later, on February 22, 2017, at the hearing before the RPD, his new counsel, Felipe Morales, introduced himself and submitted to the RPD the form indicating that he was representing the appellant. The appellant declared he fully understood the interpreter and after he was sworn in, the appellant declared that he had signed his BOC Form, that he recognized it and that the content of his BOC Form was complete and true.10 By signing his BOC Form on November 29, 2016, he declared that the content of that form and all the documents submitted with it were fully explained and that the information provided in the form was complete, true and correct, knowing that his declaration has the same force as if it had been made under oath.11 In my opinion, the appellant cannot blame his former counsel, Felipe Morales, for the statements that he himself made under oath. [7] When reading the record, I noted that on the IMM 5669 form, which he signed on November 18, 2016, the appellant declared that he had not been detained, incarcerated or put in prison,12 which contradicts what he stated during the hearing before the RPD, namely, that he was detained for four to five days, then transported to a region near the border for 19 to 20 days.13 He cannot accuse his previous counsel of having made this statement, when that counsel was not yet representing him. [8] During the hearing before the RPD, the appellant stated that, in Chad, his uncle had done everything required to obtain the documents for him, including his passport, national identity card, certificate of Chadian nationality, and his American visa, while also stating that he had driven to the embassy for an interview with his uncle in a car with tinted windows in order to avoid being detected.14 When reading the record, I noted that according to the biometric data obtained by the American authorities, the appellant's fingerprints were taken twice in N'Djaména, on May 31, 2016, and July 25, 2016.15 Therefore, it is clear that not all the documents were obtained solely by his uncle, as on two occasions he went in person to the American authorities in his country of citizenship. On this point, the information in question is based on his own testimony and, in my opinion, the appellant has no cause to blame his former counsel. [9] Although he had an American visa and stayed in that country for three to four months, he did not claim asylum, and at the hearing simply stated that he knew nothing about the country and that even the language was difficult for him.16 In any event, during his submissions, his previous counsel indicated before the RPD that the political situation in the United States had created an extraordinary context, which could explain why the appellant had not claimed asylum.17 The RPD did not address this issue in its decision. In my opinion, the appellant can certainly not blame his counsel for providing inadequate representation on this issue. [10] I listened to the recording of the hearing before the RPD.18 Both the member and the appellant's counsel asked him questions in an attempt to enable him to present his situation more effectively, whether concerning the time he was in Saudi Arabia, Chad or the United States of America. In my opinion, both acted professionally and I would even say compassionately. After he was questioned by the RPD member on what he had written in his BOC Form, his previous lawyer, Felipe Morales, asked him several other questions about aspects of his situation that required further clarification, particularly with respect to his experience in Chad, that is, his incarceration, interrogation, his leaving prison, where he lived afterwards and his exchanges with his uncle. At one point, the RPD member intervened to caution counsel not to ask leading questions. Counsel replied that he did not believe he was asking leading questions. In any event, the appellant answered all the questions.19 His counsel then made his submission to the RPD20 and a few days later, with the member's approval, he sent the RPD three documents that had not formally been submitted during the hearing.21 [11] When his claim was rejected by the RPD, 22 the appellant continued to use the services of his previous counsel, Felipe Morales, who represented him before the RAD, perfected his appeal and submitted a memorandum of appeal identifying the errors allegedly committed by the RPD.23 His appeal was ultimately dismissed by the RAD. 24 Had his previous counsel provided such poor representation before the RPD, it is difficult to understand why the appellant continued to use his services for his appeal before the RAD. Furthermore, according to his own affidavit, the appellant indicated that even after receiving the RPD decision, he continued to believe that his previous counsel was competent and acted in his best interests. 25 [12] Based on my analysis of the record, I find that the appellant did not establish that his former counsel, Felipe Morales, committed an error because of a lack of professionalism. Given that he did not establish that there was a breach of natural justice, his application to reopen the appeal must be denied. CONCLUSION [13] For these reasons, the application to reopen is denied. Alain Bissonnette Alain Bissonnette February 19, 2019 Date IRB translation Original language: French 1 Refugee Appeal Division (RAD) reasons and decision, June 13, 2018, 20 pages. 2 Appellant's memorandum of fact andlLaw, October 30, 2018, pages 33 to 58 of the second appeal record. 3 Djibrine v. Canada (Minister of Citizenship and Immigration), No. IMM-4927-18, Prothonotary Aalto, November 7, 2018, 2 pages. 4 RAD Rules, SOR/2012-257, subrule 49. 5 Medawatte v. Canada (Minister for Public Safety and Emergency Preparedness), No. IMM-6049-05, Harrington, October 7, 2005; 2005 FC 1374, paragraph 10. 6 Thamotharampillai v. Canada (Minister of Citizenship and Immigration), No. IMM-4892-10, Harrington, April 7, 2011; 2006 FC 438, paragraph 11. 7 Felipe Morales, counsel's reply to appellant's submissions, November 8, 2018, 7 pages. 8 The appellant's affidavit, October 25, 2018, paragraphs 9 to 17, pages 17 and 18 of the second appeal record. Appellant's memorandum of fact and law, paragraphs 9 and 10, 30 to 38, 40 to 45, 47 to 51 and 72, pages 34, 35, 40 to 46 and 52 of the second appeal record. 9 This letter is included in the application to present new evidence submitted on January 10, 2019, page 11. 10 Recording of the hearing held before the Refugee Protection Division (RPD) on February 22, 2017, 00:01 to 18:45. 11 Appellant's BOC Form, which is reproduced at pp. 9 to 20 of the RPD record. 12 In response to question 6 on the IMM 5669 form, which is reporduce at pp. 22 to 25 of the RPD record. 13 Recording of the hearing, 42:45 to 50:00. 14 Ibid., 37:25 to 38:50, 01:06:58 to 01:07:50 and 01:36:40 to 01:37:15. 15 Information in this regard is reproduced on pp. 79 to 87 of the RPD record. 16 Recording of the hearing, 01:07:50 to 01:12:00. 17 Ibid., 01:59:40 to 02:02:15 and 02:06:30 to 02:08:20. 18 Ibid., 00:01 to 02:10:58. 19 Ibid., 01:13:20 to 01:41:00. 20 Ibid., 01:50:10 to 02:08:30. 21 These documents are reproduced on pages 101 to 105 of the RPD record. 22 RPD reasons and decision, March 16, 2017, pp. 3 to 8 of the RPD record. 23 Preceded by an application for extension of time to file or perfect, his 14-page appeal record was received on May 1, 2017 by the IRB. The application for an extension of time was accepted by the RAD on May 25, 2017. 24 RAD reasons and decision, June 13, 2018, 20 pages. 25 Appellant's affidavit, at paragraph 18, page 19 of the appeal record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-04536 6 RAD.25.02 (2014.09.11) Disponible en français