TB3-02673

RAD File No. / N° de dossier de la SAR : TB3-02673 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX Appelant(s) Place of hearing Toronto, Ontario Lieu de l'audience Date of Decision June 13, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the Appellant(s) Anthony Navaneelan Barrister and Solicitor Conseil(s) de l'appelant (des appellants) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of XXXX, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. If the Refugee Appeal Division (RAD) questions the credibility of the new evidence, the Appellant seeks an oral hearing of his appeal. Otherwise, the Appellant asks that the RAD set aside the decision of the RPD and return the claim for redetermination by the RPD, as the Appellant alleges that he was denied procedural fairness in his RPD hearing due to the professional negligence of his counsel in that proceeding. DETERMINATION [2] The RAD finds that some areas of counsel's conduct in representing the Appellant before the RPD constitute incompetence, and that this incompetence led to a miscarriage of justice in that proceeding. The RAD therefore sets aside the decision of the RPD and refers the matter back to the RPD for redetermination by a differently-constituted panel. BACKGROUND [3] The Appellant alleged before the RPD that he worked as a part-time XXXX XXXX XXXX XXXX XXXX in XXXX. In late 2012, his apartment was raided by police, who confiscated the Appellant's car and some possessions, and arrested his friend, XXXX. The police asked neighbours to direct the Appellant to turn himself in to police. [4] Instead, the Appellant hid at a friend's residence, where he learned that XXXX had been accused of spreading anti-government propaganda and that the Appellant himself was also implicated. He made arrangements to flee XXXX, obtaining the assistance of a smuggler to travel to Turkey and then to Canada via Mexico. He arrived in Canada on January 11, 2013 and made a claim for refugee protection. His claim was heard on XXXX XXXX, 2013. [5] By a decision of XXXX XXXX, 2013, the RPD denied the claim and found the Appellant to be neither a Convention refugee nor a person in need of protection. The RPD cited various credibility concerns with the Appellant's evidence, including conflicting testimony about whether an arrest warrant had been issued, about how the Appellant's brother-in-law had interacted with the police, about when he last spoke with his brother-in-law, and about the date on which his problems allegedly began. Having considered these evidentiary difficulties, the RPD found that the Appellant had not provided sufficient reliable and trustworthy evidence in support of his claim. Specifically, the RPD disbelieved the key elements of the claim: that the Appellant's apartment was searched by police, that the Appellant is wanted by the police, and that his relatives were taken in for questioning by the authorities. The RPD then found that the Appellant had established neither a serious possibility of persecution nor that it is more likely than not that he will be subjected to a risk to life, of cruel and unusual treatment or punishment, or of torture upon return to XXXX. [6] The Appellant's challenge to the RPD decision is not based on any alleged deficiencies in the RPD decision itself, but rather on the actions of the Appellant's counsel, Mr. XXXX, before the RPD. The Appellant submits that he suffered a denial of procedural fairness before the RPD due to the professional negligence of his counsel. This alleged negligence extended to almost all aspects of the claim: the drafting of the Basis of Claim (BoC) narrative, the gathering of evidence in support of the narrative, preparation for the hearing, and conduct in the hearing room. [7] The Appellant argues that his counsel's misconduct meant that important evidence was not presented to the RPD and that both counsel and the Appellant were grossly unprepared to deal with the salient issue in the claim. Counsel's negligence led directly to the RPD's negative credibility findings. [8] The Appellant submits that, due to counsel's misconduct, the refugee claim was defeated before the Appellant even stepped into the hearing room. This denial of fairness, argues the Appellant, means that the RPD decision is unreasonable and must be set aside. Allegations of Counsel Misconduct [9] Where counsel incompetence is alleged, the courts have required a letter to the governing body as a form of corroborating evidence of the allegations.1 It is also required that former counsel be given notice and an opportunity to respond.2 [10] The Appellant has made a complaint3 against Mr. XXXX to the Law Society of Upper Canada (LSUC), which complaint relies upon his affidavit filed to the RAD. The Appellant has also written to former counsel, advising him of both the LSUC complaint and of this appeal, and providing the Appellant's appeal record as filed with the RAD.4 Finally, the Appellant has also provided former counsel with authorization to disclose the Appellant's personal information in order to respond to the allegations of counsel misconduct.5 [11] The RAD finds that the Appellant has met the requirement of filing a complaint to former counsel's governing body and the requirement of giving former counsel notice and an opportunity to respond. Mr. XXXX has not filed a response with the RAD. [12] To succeed, an appeal based on the incompetence of counsel must address both a performance component and a prejudice component. It must first be established that counsel's acts or omissions constituted incompetence, and then that a miscarriage of justice resulted.6 [13] The Appellant argues that the RAD must apply a standard of correctness when reviewing the allegations against counsel, since they allegedly lead to denial of natural justice. In the Appellant's view, as the Federal Court has held that procedural fairness is a question of law, the standard of review is one of correctness.7 [14] The right of the Appellant to fully present his case is a matter of procedural fairness. Procedural fairness is a question of law, and the standard of review for that question is one of correctness.8 The RAD notes, however, that the Appellant does not allege that the RPD denied him natural justice; his allegations are directed at counsel, and it was the alleged incompetence of counsel that led to a denial of natural justice. The Supreme Court of Canada has held that counsel incompetence is determined on a reasonableness standard. "The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment."9 [15] Did counsel's acts or omissions constitute incompetence? The RAD must presume that counsel's conduct fell within the wide range of reasonable professional assistance, and it is for the Appellant to establish otherwise. [16] Before the RAD can properly assess counsel's conduct, it must consider the new documents submitted by the Appellant. Some of these documents relate to counsel's alleged misconduct while others speak to the Appellant's refugee claim. As not all of the documents directly support the misconduct allegations, and as other documents do not directly relate to the well-foundedness of the refugee claim, the RAD will divide the evidence into two groups: first, those documents that directly relate to or support the Appellant's allegations against counsel; and second, those documents that support the Appellant's refugee claim but were not presented to the RPD because of counsel's actions or lack thereof. [17] Section 110(4) of the Immigration and Refugee Protection Act (IRPA) allows an Appellant to present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented at the time of the rejection. In the RAD's view, the Appellant could not have reasonably been expected to present, at the time of his RPD hearing, evidence that supports his contention that then-counsel was incompetent. It would be unreasonable to expect a claimant, before or at the time of his refugee hearing, to be knowledgeable and capable of collecting and submitting evidence against his own counsel. [18] It would also be difficult for the RAD to determine whether counsel incompetence occurred without considering the relevant documents, and such a determination without documents would be unfair to both the Appellant and to former counsel. [19] The RAD finds, therefore, that the following documents could not reasonably have been expected in the circumstances to be presented to the RPD, are relevant to the issue of alleged counsel incompetence, and are therefore admissible in this appeal: * E-mail conversation between the Appellant, former counsel, and CBSA;10 * Correspondence between Mr. XXXX and the IRB;11 * Complaint against Mr. XXXX with LSUC; and12 * Letter dated XXXX XXXX, 2013 to Mr. XXXX, and attached authorization for the disclosure of personal information.13 The RAD will also consider those portions of the Appellant's affidavit that speak to the issue of counsel's conduct before the RPD.14 [20] The Appellant alleges that: a. Counsel never met with the Appellant to draft his BoC narrative, but entrusted this role to an interpreter. The Appellant therefore had no assistance from counsel in preparing the narrative and, further, did not have the translated version read back to him. b. Although he had possession of the document, counsel did not have the Appellant's original declaration, made to immigration officials at the port of entry, translated from Farsi to English before submitting the BoC to the RPD. As a result, counsel was unaware of important inconsistencies between the declaration and the BoC, and the Appellant was not able to address these in the BoC. c. Mr. XXXX never advised the Appellant of the need to gather personal evidence from XXXX or elsewhere to corroborate his claim. As a result, the Appellant did not submit easily-obtained documents including statements from family and judicial and police documents. d. Counsel did not gather, nor did he advise the Appellant to gather, country condition evidence to corroborate the refugee claim, though such documents were available. e. Counsel met with the Appellant only three times-only twice for substantive hearing preparation-each for approximately fifteen minutes. When the Appellant raised the issue of the incorrect date in his declaration, counsel improperly advised that such could be clarified at the hearing. At the final preparatory meeting, Mr. XXXX looked through the Appellant's documents and said, "The judge must be stupid to believe you." f. Even though the Appellant had not been properly prepared for his hearing, counsel wrote to the RPD to have the hearing date advanced, from XXXX 12 to XXXX XXXX, without the knowledge or consent of the Appellant. Counsel also showed up half an hour late for the hearing. g. At the RPD hearing, counsel was presented with an English translation of the Appellant's port-of-entry declaration, and a copy of an initial BoC that the Appellant had completed on his own while in detention. Mr. XXXX indicated that he had never seen these documents before but did not request an adjournment or recess to familiarize himself with them. h. Counsel read the new documents in the hearing room and, upon realizing the inconsistency between the declaration and the BoCs in respect to the date of the major incident, confronted the Appellant with these inconsistencies in front of the RPD Member and even declined when the Member offered to leave the room. i. During a recess, counsel approached the Appellant's brother-in-law to attempt to confirm the date of the major incident, indicating that he did not have a grasp of the central credibility issue in the hearing. [21] The Appellant argues that the conduct set out above makes it clear that Mr. XXXX did not exercise the appropriate professionalism or competence in representing the Appellant in his refugee claim. In the Appellant's submission, his complaints clearly identify the exact dimensions of the problem and provide a precise factual foundation for the complaint. The alleged errors cannot be attributed to tactical or strategic decisions by counsel. [22] In the RAD's view, not all of counsel's conduct alleged by the Appellant falls outside the wide range of reasonable professional assistance. There is no requirement that counsel meet with a refugee claimant a certain number of times or for a particular duration, or that he personally prepare the BoC with the claimant. Neither counsel's request for a change of date-even without the Appellant's knowledge-nor counsel's late arrival at the hearing can reasonably be considered incompetence. However, some of the Appellant's allegations, if credible, establish that counsel's conduct fell outside the range of reasonable professional assistance. [23] The Appellant has alleged that Mr. XXXX was not sufficiently familiar with the basis of his refugee claim because counsel failed to involve himself in the preparation of the BoC and did not have the port-of-entry declaration translated into English. Given that the Appellant was not read back the contents of his BoC, neither counsel nor the Appellant was in a position to identity or seek to rectify the critical inconsistency in respect to the date of a key incident. [24] Has the Appellant established that counsel was not sufficiently familiar with the claim to identify and correct a key inconsistency, and that, when he was made aware of the problem, he did not take immediate steps to correct it? The Appellant has sworn an affidavit to this effect, and counsel, who has been given notice of this matter, has not filed a response. The inconsistency is apparent from the documents that were available to counsel-the Basis of Claim form and the declaration-which are in the RPD record.15 The Appellant alleges that he informed Mr. XXXX of the problem while preparing for the hearing, but counsel advised him that this could be corrected in the hearing. It is clear from the RPD record that the contradiction was not corrected prior to the hearing, and the recording of the hearing indicates that counsel sought to instead rectify the problem in the hearing. The RAD finds, on a balance of probabilities, that counsel did not initially become aware of the inconsistency because of his lack of involvement in preparing the BoC and his failure to determine the contents of the Farsi-language declaration; further, when made aware of the date issue, counsel did not seek to immediately rectify the matter but, instead, waited until the hearing. Counsel also undermined the Appellant's credibility on a key element of the claim by unnecessarily confronting the claimant with the inconsistency in front of the RPD member. [25] Has the Appellant established that Mr. XXXX did not direct him to obtain personal or country documents in support of his claim, and that counsel himself failed to obtain and submit such documents? The Appellant has sworn an affidavit in support of these allegations, and Mr. XXXX has not contested them, though given an opportunity to do so. The exhibit list in the RPD record shows that, beyond the National Documentation Package provided by the RPD, there was simply no country-condition evidence disclosed in support of the claim.16 After the RPD's rejection of the claim, the Appellant was able to obtain and submit a large volume of personal and country-condition information in support of his claim.17 The RAD finds, on a balance of probabilities, that counsel did not direct the Appellant to obtain necessary documents, nor did counsel obtain and disclose such documents. [26] In the RAD's view, counsel could reasonably be expected to have some role in the preparation of the BoC and knowledge of its contents.18 The then-claimant could also reasonably expect his counsel to have knowledge of the content of the port-of-entry declaration. When the Appellant brought concerns about the inconsistency in dates to counsel's attention, he could reasonably have expected counsel to understand the seriousness of the issue, given that the dates related to the key incident in the refugee claim. The RAD finds that counsel's actions in dealing with the date inconsistency fall outside the range of reasonable professional assistance and constitutes incompetence. [27] Similarly, the RAD finds that counsel's failure to ask the Appellant to gather personal and country documents in support of his claim falls outside the range of reasonable professional assistance and constitutes incompetence. The RAD notes that the RPD Rules require a claimant to provide acceptable documents in support of his refugee claim.19 However, when a refugee claimant retains counsel, it is counsel's duty to advise the claimant as to what evidence will be required to establish the refugee claim.20 The Appellant relied upon counsel's advice to prepare for the hearing, and it would be unreasonable to expect a newly-arrived refugee claimant, having retained legal counsel, to take the initiative to collect such documents without such instructions from counsel. [28] While the Appellant raises other allegations, such as that counsel told him his claim would not be believed, it is not necessary for the RAD to deal with these, as the above findings of incompetence are sufficient to determine this appeal. [29] Was the Appellant's refugee claim prejudiced by counsel's incompetence-did the incompetence described above lead to a miscarriage of justice? Miscarriages of justice take many forms, including procedural unfairness or compromise to the reliability of the outcome of the proceeding.21 Where incompetence is sufficiently specific and supported by the evidence, it is inherently prejudicial to the Appellant and warrants setting aside the decision.22 [30] The RPD rejected the Appellant's claim on the basis of credibility, finding that "there is insufficient reliable and trustworthy evidence with respect to the central elements of the claim."23 Prior to reaching that conclusion, the RPD clearly set out its credibility concerns. The claimant gave contradictory evidence on the existence of an arrest warrant. His evidence was inconsistent on whether his brother-in-law was taken to the police station or voluntarily reported there, and about when he last spoke with his brother-in-law. The RPD noted the apparently contradictory evidence about the date of the key incident and made a negative credibility finding. [31] Not all of the negative credibility findings of the RPD can be attributed to counsel misconduct. However, a careful review of the RPD decision leads the RAD to conclude that the Appellant's refugee claim was indeed seriously prejudiced by counsel incompetence. The RPD decision deals at some length with the issue of the inconsistent dates, and concludes, "If the claimant was aware of the error, he could have ultimately corrected it in his BOC; he did not and I draw an adverse inference."24 Counsel's failure to deal reasonably with the date issue prior to the hearing directly led to a significant adverse credibility finding. [32] The failure of counsel to request and submit corroborating documents also had a significant impact on the outcome of the refugee claim. The RPD made a negative credibility finding in respect of an arrest warrant; the Appellant could have precluded this finding had he known to obtain a copy of the warrant, which he did after receiving the decision.25 Similarly, the RPD's conclusion that the police are not seeking the Appellant could have been avoided had the Appellant known to obtain a copy of photographs showing a police seal across the door of his apartment.26 His apparently contradictory evidence about his contact with siblings and their interaction with the authorities might have been resolved by affidavits from those individuals, documents which he obtained after the hearing.27 [33] The RAD finds that the Appellant has provided evidence of specific misconduct by counsel, and further finds that such incompetence led to a miscarriage of justice. The reliability of the RPD's credibility finding, which formed the basis for the rejection of the claim, was compromised by counsel's incompetence. Although the RPD itself did not err in conducting the hearing or rendering its decision, that decision must nevertheless be set aside. Remedy [34] The Appellant asks that his refugee claim be returned to the RPD for redetermination. Section 111 of the IRPA allows the RAD to refer a matter back to the RPD only if it is wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm the determination or to substitute another determination without hearing evidence that was presented to the RPD. [35] The RAD finds that the RPD decision in this matter was wrong in law, as counsel's actions led to a denial of natural justice for the Appellant. The RAD cannot confirm the RPD's decision, and must either substitute its own determination or refer the matter back to the RPD. [36] In order to make its own determination, it would be necessary for the RAD to convene an oral hearing, as the Appellant's first hearing was tainted by procedural unfairness, and there is thus insufficient evidence upon which the RAD could base its own determination. It is clear from Section 110(3) of the IRPA that oral RAD hearings are to be the exception, as the RAD "must proceed on the basis of the record of the proceedings of the Refugee Protection Division....."28 Section 110(6) gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.29 The Appellant has submitted new evidence which might indeed meet such requirements. It would, however, be difficult or impossible to restrict an oral hearing to such evidence. In effect, an oral hearing would become a de novo proceeding, as the RAD cannot rely upon much of the evidence from the RPD hearing, it would be necessary for the RAD to rehear most or the entire refugee claim, not just the portion relating to the new evidence. [37] In the RAD's view, the IRPA does not support the de novo hearing of a refugee claim by RAD. The legislation requires the RAD to proceed without a hearing,30 allows an exception where there is new evidence,31 and prohibits the RAD from rehearing evidence that was presented to the RPD.32 These provisions are simply not consistent with the rehearing of an entire refugee claim by the RAD. [38] The RAD cannot substitute its own determination for that of the RPD and, therefore, refers this matter back to the Refugee Protection Division with the following directions.33 While it was not necessary for the RAD to admit the Appellant's new evidence relating to his refugee claim, the Appellant may submit these documents, pursuant to the RPD Rules, for the de novo hearing of his claim. The RPD is not to consider or admit the transcript of the first RPD hearing, but may question the Appellant on any aspect of his refugee claim, including the discrepancy in dates discussed above. CONCLUSION [39] For the reasons given above, the RAD allows this appeal and sets aside the decision of the RPD. The RAD exercises its discretion under Section 111(1)(c) of the IRPA to refer the matter back to the RPD for redetermination by a differently-constituted panel. (signed) "Edward Bosveld" Edward Bosveld June 13, 2013 Date 1 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012; 2012 FC 1025, para. 42. 2 Ibid, para. 43. 3 Appellant's Record, p. 221, Complaint to Law Society of Upper Canada. 4 Appellant's Submission of xxx, 2013. 5 Ibid., p. 6. 6 R. v. G.D.B., 2000 SCC 22, para. 26. 7 Brown v. Canada (M.C.I.), 2012 FC 1305, para. 17. 8 Galyas, Viktor v. M.C.I. (F.C., no. IMM-5351-12), Russell, March 8, 2013; 2013 FC 250. 9 R. v. G.D.B., supra, para. 27. 10 Appellant's Record, p. 70. 11 Appellant's Record, p. 98. 12 Appellant's Record, p. 221. 13 Appellant's Additional Submissions of xxx, 2013, p. 3. 14 Appellant's Record, p. 22. 15 RPD Record, Exhibit 2, Basis of Claim; RPD Record, Exhibit 1, Minister's Information. 16 RPD Record, Exhibit List. 17 Appellant's Record, Appellant's Affidavit, p. 32. 18 El Kaissi, Dalal v. M.C.I. (F.C., no. IMM-1432-11), Near, October 31, 2011; 2011 FC 1234, para. 18. 19 Refugee Protection Division Rules, Rule 11. 20 T.K.M. v. Canada (Minister of Citizenship and Immigration), 2011 FC 927, para. 14. 21 R. v. G.D.B., supra, para. 28. 22 Shirwa v. Canada (M.E.I.), [1994] 2 FC 51 (F.C.T.D.). 23 RPD Record, RPD Decision, para. 30. 24 RPD Record, RPD Decision, para. 27. The RAD has not admitted these documents as evidence and therefore has not made a finding as to their credibility or probative value. 25 Appellant's Record, p. 32. 26 Ibid. 27 Ibid. 28 IRPA, Section 110(3). 29 IRPA, Section 110(6). 30 IRPA, Section 110(3). 31 IRPA, Section 110(6). 32 IRPA, Section 111(2)(b). 33 IRPA, Section 111(1)(c). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.6 (February 7, 2013) RAD File No. / N° de dossier de la SAR : TB3-02673