VB3-03047

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 : VB3-03047 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Vancouver, BC Appel instruit à Date of decision March 10, 2014 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) Bjorn Harsanyi Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor 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 XXXX (the "appellant"), a national of Honduras, appeals the November 1, 2013 determination of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. The claim was heard by the RPD on September 24, 2013 with an oral decision rendered by the RPD on that date. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"" or the "Act"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention refugee pursuant to section 96 of IRPA nor a person in need of protection pursuant to section 97 of that Act. The appeal is dismissed. BACKGROUND [3] The Minister did participate "by documents only" in the RPD proceedings2 but has not intervened at the RAD. [4] The appellant's counsel at the RAD, Mr. Harsanyi, is a different individual than counsel before the RPD. However, counsel at the RPD, Ms. Kyluik, is an associate in the firm in which Mr. Harsanyi is a partner. [5] No transcript of the RPD hearing is contained in the appellant's record (AR).3 However, references are made in the AR to time codes indicating RPD testimony as recorded on the compact disks (CD) of those proceedings provided in the RPD Record (RPDR).4 CD #1 is of the adjournment application while CD #2 is of the RPD hearing itself. Basis of Claim [6] As will be discussed further in the following, given the grounds of appeal, it is not necessary to provide extensive details with regard to the appellant's claim for refugee protection as presented to the RPD. [7] The appellant is a 27-year-old married man from Honduras. He has one daughter. The wife and daughter were living in Honduras at the time of the RPD hearing. [8] The appellant arrived in Canada on XXXX XXXX, 2013 at which time he made a claim for refugee protection. The claim was referred to the RPD on July 26, 2013. [9] The basic allegation is that both the appellant's and his wife's families have been targeted in Honduras by members of the Reyes family, allegedly a large and powerful family in that country. The appellant alleged that he fears violence at the hands of the Reyes family arising from resentment and jealousy and also an incident involving his wife's family which occurred many years ago. [10] The alleged conflict began in the early 1990s and progressed to the point where his mother-in-law was killed in 1996. Thereafter, the Reyes family continued to target the appellant's wife's family, including the appellant's brother-in-law who was shot at in 2008. Some members of the wife's family previously successfully sought refugee protection in Canada. RPD Decision [11] The primary grounds of this appeal are based on allegations of breaches of natural justice and procedural fairness with the remedy sought by the appellant being a redetermination by the RPD of the appellant's claim. Except insofar as such a breach, if established, can render the entirety of the proceedings before the RPD invalid and, thus, the outcome "unreasonable", the appellant does not raise any issues on the appeal with regard to specific findings of fact drawn by the RPD in those proceedings as reflected in the RPD decision. [12] In light of the foregoing, I provide a brief synopsis of the RPD's conclusions. [13] While expressing the view that the appellant's testimony was at times vague and lacking in detail (which required the Member to remind the appellant to be more specific) the RPD concluded, "However, on the whole I do find your testimony to be straightforward and reliable for the purposes of this assessment".5 [14] The RPD found that the appellant had not established a serious possibility of persecution with regard to any of the five grounds found in section 96 of IRPA. [15] Accordingly, the RPD proceeded with an analysis of the claim with regard to subsection 97(1) of the Act. In this regard, while the RPD did find the appellant's evidence to be straightforward and reliable, it could not find that, looking forward, the appellant had successfully established, on a balance of probabilities, that there was a credible risk or danger that the Reyes family was, in fact, motivated to persecute the appellant, why they would target him specifically or that they would have the capacity to reach him at airports or otherwise come to know his travel plans and the like so as to harm him. [16] Although the appellant testified that the Reyes family had targeted the appellant's wife's family from the early 90s leading to the appellant's mother-in-law's death in 1996, shots fired at his brother-in-law in 2008 and the appellant being accosted on an occasion at a grocery store, the Member found little evidence had been provided about why the vendetta continued, who specifically of the Reyes family was threatening him or to what end. [17] In attempting to clarify the reality of any potential personal targeting of the appellant by the Reyes', the RPD considered a number of issues arising from the appellant's conduct over the years that could reflect on the likelihood of any actual threat. In this regard, the RPD perceived a lack of credible fear evidenced by his conduct. The RPD stated that "In the absence of a satisfactory explanation, lack of credible fear of harm may undermine a claim under section 97 and today I do find that is the case". [18] Examples of this conduct include the appellant repeatedly returning to Honduras after numerous trips to the United States using a ten year multiple entry visitor visa, as well as other trips to and from countries in South and Central America. In addition to returning to the alleged country of risk or danger, the appellant never made an application for asylum in any of them. With regard to the United States, the appellant testified that he did not want to risk losing his ten year multiple entry visitor's visa to that country by making such an application and that the Reyes' might find him there anyway. In essence, the RPD found that explanation unreasonable because, if the appellant and his family were at risk as alleged, would they not jeopardize giving up a ten year visitor's visa to seek asylum in the United States in order to be safe? The RPD also rejected the appellant's explanation that he did not seek such protection and continued to return to Honduras because he "hoped things would get better" in light of the fact that he alleged that the violence had gone on for 20 years and the prospects for potential violence were still profound. [19] Moreover, why, if he did not want to stay in the United States, but having been there on a number of occasions (in Chicago, Illinois), knowing that he had other relatives residing in Canada as successful refugee claimants (also allegedly fleeing the Reyes'), did he not proceed to Canada to make a claim here? If he really believed that his and his family's life would be in danger in Honduras, the RPD did not find reasonable his explanation that, if he would have known what the procedures were to seek protection in Canada he might have tried that course, given that his wife's Canadian refugee relatives could have guided him as to those procedures. [20] The appellant's credibility suffered further when he tried to explain why his wife and child had not accompanied him to Canada (given that the primary source of the alleged vendetta was through her family) on the basis that, because of their great power and influence, the Reyes' could have discovered them at the airport when leaving the country. The RPD did not find this explanation reasonable given that they had used that airport previously when going to the United States without difficulty and his wife had the same type of visa as he entitling her to fly to the United States. [21] Ultimately, the RPD found that the appellant had not successfully established a risk or danger under section 97 of the Act, on a balance of probabilities, and rejected the claim. [22] As noted earlier, the appellant has not challenged any of the specific findings of the RPD but, rather, asserts that because of breaches of natural justice and procedural fairness, the circumstances require that the matter be re-determined by the RPD. GROUNDS OF APPEAL [23] As outlined by the appellant in the AR, three issues are raised on this appeal:6 1) What is the standard of review? 2) Did the appellant have evidence that arose after the rejection of his claim or was not reasonably available or could not reasonably be expected to in the circumstances to have been presented by him at the time of his hearing? 3) Did the RPD fail to observe a principle of natural justice and procedural fairness? [24] The appellant's primary complaint is that, because he could not obtain the services of counsel until two days before the RPD hearing, counsel could not be properly prepared and certain documents in the appellant's possession could not be used as they had not been disclosed or translated. When an adjournment was sought on the day of the hearing, it was rejected and the hearing proceeded with counsel. Further details with regard to the appellant's position will be discussed in the Analysis portion of this decision. ORDER SOUGHT [25] The appellant seeks an order that the RAD set aside the decision of the RPD and the matter be referred to the RPD for a redetermination, giving directions to the RPD that it considers appropriate.7 STANDARD OF REVIEW [26] The appellant made a brief submission on the standard of review which should be applied by the RAD in this case and concludes that the appropriate standard is that of correctness.8 In so far as the allegation of a breach of natural justice or a lack of procedural fairness is concerned, I agree. [27] When considering standards of review with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada (the "SCC") in Dunsmuir9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [28] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Federal Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. [29] However, some RAD decisions which, inter alia, set out detailed analysis establishing standards of review to be applied by the RAD, have now been made publicly available. [30] The RAD has previously determined that appeals based on issues such as those of fact or mixed fact and law are to be assessed on a reasonableness standard.10 I agree with those conclusions. As well, in a publicly available previous decision,11 I have determined that the assessment of issues concerning breaches of natural justice or fairness is to be on the standard of correctness and I will apply that standard in this claim. ANALYSIS OF THE MERITS OF THE APPEAL [31] It should be noted that the appellant has included in his AR the now translated copies of the documents he brought with him to the RPD hearing, together with additional claimant-specific documents which predate the RPD hearing by a number of years which he states were located by "counsel's further investigation" after the hearing, as well as one document produced subsequent to the hearing. There is no explicit application for any of these documents to be accepted by the RAD pursuant to subsection 110(4) of the Act, although they are mentioned in conjunction with that section. Accordingly, I will consider whether those documents may be admitted to the RAD under subsection 110(4) of IRPA. [32] The appellant makes no application under subsection 110(6) for a hearing before the RAD. [33] The appellant does not seek an order that the RAD set aside the RPD's negative decision to be replaced with a positive determination but, rather, simply an order for a redetermination by the RPD. The Evidence Before the RAD [34] Evidence in support of the appellant's appeal includes the affidavit of the appellant12 as well as a sworn declaration of his current counsel at the RAD, Mr. Harsanyi.13 It was Mr. Harsanyi's associate, Ms. Kyluik, who appeared before the RPD. [35] The Code of Conduct of the Law Society of Alberta14 provides the following: 4.02 The Lawyer as Witness 4.02(1) A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless permitted to do so by law, the tribunal, the Rules of Court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted. (RAD emphasis) [36] The Commentary set out in the Alberta Code also states: A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer should not, in effect, appear as an unsworn witness or put the lawyer's own credibility at issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. There are no restrictions on the applicant's right to cross-examine another lawyer, however, and the lawyer who does appear as a witness should not expect to receive special treatment because of professional status. (RAD emphasis) [37] For the reasons that follow, I find counsel's statutory declaration is inadmissible as evidence in this appeal. [38] Although the declaration is not admissible, in order to highlight why it is not so, it is necessary to make a brief reference to its contents. [39] In his declaration, counsel provides evidence that "he met with" the RPD Member who ultimately heard this claim the day before the RPD hearing. There is no documentary evidence of this meeting in the Record before me. In any event, counsel alleges that he advised the Member that his firm had just been retained by the appellant, shortly after he had been refused Legal Aid coverage. After discussing the short notice of the hearing, the possibility of an adjournment and that an associate from his firm would appear at the hearing, "although [the Member] did not explicitly confirm this request for adjournment, she requested that three alternate dates for the hearing be presented by [the associate] when the hearing commenced".15 Counsel says he was "left with the impression" that the matter would be adjourned.16 [40] A similar situation involving counsel's evidence arose in another RAD appeal before RAD Member Bosveld which has been publicly disclosed.17 It concerned a matter arising in Ontario where a counsel's self-admitted incompetence resulted in an Appeal Record not being perfected in time. Although counsel's direct affidavit was not involved, the RAD found that the evidence of counsel's assistant attesting to the incompetence was basically a statement of counsel himself. That nuance aside, I find that the general principles concerning counsel appearing as a witness considered by Member Bosveld are applicable in the matter before me concerning Mr. Harsanyi, an Alberta lawyer. I reference and adopt the following discussion and findings in those RAD proceedings: [12] The rules of the Law Society of Upper Canada forbid counsel from acting on her own affidavit, subject to the discretion of the tribunal before which she is appearing.18 The Ontario Court of Appeal has noted the impropriety of counsel serving as a witness and appearing as counsel in the same matter, holding that "this is a well-settled rule which the Court has strictly enforced over the years."19 Similarly, the Manitoba Court of Appeal Supreme Court has held that "it is a long-established rule that a lawyer should not be both counsel and a witness in a case," including in cases where the witness' evidence is given by affidavit, though this rule may be relaxed where the evidence in question is non-controversial or where the interests of justice demand it.20 The Federal Court has21 and enforces22 a rule prohibiting lawyers from swearing affidavits except with leave of the Court; this rule has also been applied where, as in this application, counsel has provided evidence, indirectly, through another affiant.23 The Supreme Court has also stated that counsel who has given evidence in a trial ought not to participate in that proceeding.24 [13] The RAD rules do not prohibit counsel from swearing an affidavit. In fact, Section 171(a.2) of the Immigration and Refugee Protection Act (IRPA) states that the RAD is not bound by any legal or technical rules of evidence, while Section 171 (a.3) states that the RAD may receive evidence that is considered credible or trustworthy in the circumstances. In the RAD's view, however, it is improper for counsel to provide evidence in this application, even indirectly. In essence, the affidavit places counsel in the position of arguing the application on the basis of her own evidence.25 Further, should the RAD decide to convene a hearing to consider this application, counsel might be required to testify as a witness. Finally, while the Federal Court has observed that it is "so easy" to make allegations of incompetence against former counsel,26 without taking any action against that counsel, the RAD notes that it is just as easy for counsel to simply rely upon his or her own admitted incompetence in support of an application such as this. [14] In this context, the RAD finds it improper for counsel to provide evidence, even indirectly through the affidavit of her assistant, and that affidavit is therefore inadmissible as evidence in this application. [41] I hasten to add that, unlike the Ontario case, counsel's competence is not an issue before me. However, I find that his statutory declaration improperly provides evidence and is, therefore, not admissible. [42] In the RAD case just cited, the appellant's own affidavit independently provided sufficient evidence for the RAD to grant the application to extend the time for perfection, even with counsel's evidence being inadmissible. There is also an appellant's affidavit in this case which I find is admissible. [43] In his affidavit, the appellant states that he arrived in Canada on XXXX XXXX, 2013 and made a claim for refugee protection. He states that, due to his financial situation, "I applied for Legal Aid coverage in XXXX 2013. At or around XXXX XXXX, 2013, I received notification that I was being denied coverage for my claim".27 He does not provide a specific date when he applied for coverage or whether it was at the beginning or the end of that month. [44] The appellant then states that he tried to find representation during the following week but was not able to meet with Mr. Harsanyi until XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. It was not until the following day that the appellant provided his counsel the following documents in Spanish:28 a) the appellant's birth certificate; b) the appellant's wife's birth certificate; c) the couple's marriage certificate; d) the death certificate of the appellant's mother-in-law issued in 1996; e) a September 4, 2013 confirmation that criminal complaints were made in 1996 against a member of the Reyes family about attacks on the appellant's wife's family. As noted in the affidavit, a similar XXXX XXXX, 2009 confirmation of these same events was, as the appellant states, "located upon my counsel's subsequent investigation"; f) a similar report dated XXXX XXXX, 2013 from the Honduras courts confirming criminal charges had been laid with respect to the 1996 events. Again, a similar XXXX XXXX, 2009 confirmation regarding those same events was "located upon my lawyer's subsequent investigation"; g) a XXXX XXXX, 2013 hospital report confirming 1996 records regarding the shooting of the appellant's wife's brother-in-law. The "counsel's subsequent investigation" revealed a similar detailed medical report dated XXXX XXXX, 1996; and h) a XXXX XXXX XXXX 2013 hospital report confirming records of the 2008 regarding shooting of the appellant's brother-in-law. Again, the subsequent investigation revealed a XXXX XXXX, 2008 similar document. [45] In assessing whether these documents should be admitted into evidence before the RAD under subsection 110(4) of the Act, it is important to note that, while the documents brought by the appellant to his RPD hearing were dated in September 2013 (confirming much earlier events) there were already similar confirmatory documents prepared in 2008 and 2009 in existence. In his affidavit the appellant provides no details about what was involved in his "lawyer's subsequent investigation" that led to the 2008 and 2009 documents revelation or why those documents were not available for the RPD hearing in translated form. [46] In his affidavit, the appellant also lists five documents dated from 1996 to 2010 which were "located after" the September 2013 RPD hearing "upon my counsel's further investigation after the hearing". These include two police reports regarding the 1996 murder of the appellant's mother-in-law and an October 2009 prosecutor's report regarding that same incident. As well, there is a 2008 declaration, referring to the 1996 incident as well as a February 8, 2010 letter from Citizenship and Immigration Canada notifying the appellant's brother-in-law that he had succeeded in his Pre-removal Risk Assessment application.29 No evidence is provided as to why those documents were not or could not have been available for the RPD hearing. [47] Finally, the appellant attaches a letter from the Ministry of Education in Honduras dated XXXX XXXX, 2013 confirming that the appellant's wife had been granted a leave of absence from her duties from XXXX XXXX to XXXX XXXX, 2013 "due to safety reasons because the above-mentioned teacher has received threats at the Educational Center and in other places of the city".30 [48] The appellant then deposes: Due to the above circumstances as detailed, this evidence was not reasonably available or could not reasonably be expected in the circumstances to have been able to be presented by me at the time of my hearing. I believe that this documentation was important and central to my refugee claim. [49] With regard to the admission of the above mentioned documents as evidence before the RAD pursuant to subsection110(4) of IRPA, the section provides: 110(4) 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 rejection. [50] For the reasons that follow, I find that the appellant has not met the requirements of subsection 110(4) of IRPA and that none of the documents referred to in paragraphs 6-8 of the appellant's affidavit will be accepted as evidence in this appeal pursuant to that section. However, in order to deal with the appellant's allegation that the refusal of the RPD to accept certain of the documents as post-hearing evidence, I will refer to some of those documents later in these reasons when considering that issue. [51] While a Pre-Removal Risk Assessment (PRRA) differs from an appeal to the RAD, the wording of subsection 110(4) of IRPA is almost identical to section 113 of the Act which identifies what evidence is to be allowed in support of a PRRA application. Accordingly, I find that the Federal Court of Appeal and Federal Court jurisprudence regarding section 113 provides important guidance with respect to the interpretation of subsection 110(4). Section 113 of IRPA provides: 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [52] Given the near identical wording of subsection 110(4), I find that there is a legislative intent that the two provisions are to be interpreted alike and that jurisprudence concerning section 113 is helpful in interpreting 110(4). [53] A seminal authority with respect to the interpretation of section 113 is the 2007 Federal Court of Appeal decision in Raza.31 Relying on the guidance of this authority, the first step with regard to subsection 110(4) is to determine whether or not the proffered evidence was not available or could not have been provided to the RPD. If it could not have been, the RAD must then assess its credibility, relevance, newness and materiality. An applicant is required to state why the evidence constitutes new evidence and why it should be considered. The burden of proving both the newness and materiality of the evidence lies with the applicant. [54] However, in interpreting Raza, the Federal Court has held that it would be a misapplication of that authority to find that if any one of the Raza grounds were met, the evidence would be considered new evidence, regardless of the other grounds. The Federal Court in Mooketsi held that:32 [18] In my view, the Applicants have misapplied the Court of Appeal decision in Raza. I do not read the decision and, in particular paragraph 13, as a statement to the effect that, if any one of the questions posed can be answered in the positive, the evidence is "new". As noted in paragraph 15 of Raza decision, evidence must be considered "unless it is excluded on one of the grounds stated in paragraph [13] above". Thus, if the "new" evidence could have been presented at the RPD hearing, then s. 113(a) requires that such evidence be rejected, even if it contradicts a finding of fact by the RPD. This is reinforced by paragraph 13(5)(a) of the Raza decision. [55] All of the documents listed under (a)-(h) above (and referred to in paragraph 6 of the appellant's affidavit) were un-translated at the time of the RPD and, on that basis alone, would not have been acceptable as evidence before that Division. No sufficient reason is provided as to why these documents could not have been translated before the hearing. I do not find sufficient justification for the lack of translation the appellant's evidence that he had not obtained the services of counsel because he was waiting for a determination from legal aid. Even if the appellant had received legal aid support, instead of being turned down, it still would have been necessary that these documents be translated in a timely manner before they could be used. Moreover, the appellant is not unsophisticated having 13 years of education, including a diploma in XXXX XXXX XXXX.33 As well and as is noted by the RPD, the appellant had relatives in Canada who had previously successfully made refugee claims who could have guided him. [56] Documents (e)-(h), all are dated in September 2013 and might have, for that reason, presented some difficulty in timely translation for presentment to the RPD. Given that they were dated September 3 and 4, 2013, even that problem would not have been insurmountable in preparing for a September 24, 2013 hearing. Moreover, each of them is a confirmatory document about things that had happened many years ago, such as shootings in 1996 and 2008. They confirm that there are contemporaneous records for those events. However, most importantly, the appellant's affidavit reveals that there were also similar confirmatory documents about those old events which had been prepared in 2008 in 2009 for which there clearly would have been ample time to have them translated as well as a contemporaneous 1996 document of item (g). [57] Without stating how it came about, the appellant deposes that the 2008, 2009 and 1996 documents were found through "counsel's subsequent investigation" after the hearing. I find that this explanation is insufficient as to why all of those documents could not have been located earlier such that they could have been presented to the RPD, properly translated. The appellant has failed to demonstrate that these documents were not reasonably available to him or that it would have been unreasonable to expect him to present them at the time of the RPD hearing. [58] Likewise, I come to the same conclusion with regard to the five documents referred to in paragraph 7 of the appellant's affidavit. The dates of the documents range from 1996 through 2010. Although the appellant deposes that these too were located "upon my counsel's further investigation after the hearing" there is no reason at all provided as to why they could not have been located earlier. They do not meet the test for inclusion in the evidence on appeal as found in subsection 110(4) of the Act. [59] Finally, at paragraph 8 of his affidavit, the appellant refers to an XXXX XXXX, 2013 letter from the Ministry of Education which states that his wife had a leave of absence from her employment, "Due to safety reasons because the above-mentioned teacher has received threats at the educational center and in other places of the city"34 and that she would have a substitute from XXXX XXXX XXXX XXXX XXXX, 2013. [60] Clearly, this document was not prepared at the time of the September 2013 RPD hearing and refers to a leave of absence which was to occur later in that year. For that reason, this document could not have been available at the RPD hearing nor is there a reasonable expectation that it would have been. However, as discussed earlier, the consideration does not end with whether or not a document was in existence at the time of the RPD hearing but, rather, extends to matters such as relevance and materiality. I find that the appellant has failed to establish either. [61] The document does not refer to the appellant at all but, rather, to his wife. Most importantly, while it indicates that she has taken a leave of absence for her safety, absolutely no tie-in has been made to the Reyes family or anything having to do with the appellant's claim. For those reasons, I find that the appellant has failed to establish that document is either relevant or material so as to fall under the provisions of subsection 110(4) of IRPA. Day of RPD Hearing-Tuesday, September 24, 2013 [62] Two separate proceedings took place on September 24. The first was the adjournment application before RPD Member Azmudeh, who was located in Vancouver with a video link to the appellant, an interpreter and Ms. Kyluik, current counsel's associate in Calgary. The second was the RPD hearing of the claim itself before Member Schmalzbauer with all participants located in Calgary. Ms. Kyluik was also counsel at that hearing. Adjournment Application35 [63] Counsel submitted that an adjournment was necessary inasmuch as the appellant had found out just recently (i.e., XXXX XXXX XXXX XXXX, 2013) that Legal Aid would not be available to him. Counsel noted that, while the appellant made contact with her office late the previous week, he was not able to meet Mr. Harsanyi until XXXX XXXX XXXX XXXX, 2013, that there were documents that needed to be translated and that it was a complicated case; all of which meant that it had been impossible to prepare properly for the hearing. In response to the Member's question about why the appellant had waited a week before obtaining counsel, Ms. Kyluik advised that he was "trying to find out his options" at which time his local brother-in-law referred him to Mr. Harsanyi. The Member asked if there was anything else she needed to know and was advised "no". [64] The Member denied the application to change the date of the RPD hearing and provided reasons. The Member noted that Parliament had recently provided new legislation which included timelines for the hearing of claims. She referenced Rule 54 of the RPD Rules36 as well as Chairpersons Guideline 6 (the "Guideline")37 in connection with the late retention of counsel by a claimant. The Member found that the appellant had not been diligent in locating and retaining counsel. She found that the claim had been referred on July 26, 2013, two months prior to the hearing, and a Notice to Appear on September 24 for the RPD hearing was provided to the appellant at that time. The Member found that making an application for Legal Aid is no guarantee that it will be successful and one must anticipate alternatives. The appellant knew well in advance of his hearing date. She noted that the appellant's brother-in-law knew of a lawyer. [65] The Member highlighted the fact that, under the rules and Chairperson's Guideline 6 (particularly section 3 of the Guideline), if counsel is retained after the hearing date has been set, they must be ready and available to appear at and proceed with the hearing. [66] The Member also referred to Rule 54(4)(b) which provides: 54(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. [67] The Member found that the appellant failed to act diligently and that there was no reason that he could not have retained counsel earlier. The Member found that waiting to do so from July 26, 2013 until September 16 or 17, 2013 was not a matter that was out of the appellant's control. [68] The Member also found that it was not for her to make a determination concerning any application for the provision of post-hearing documents or submissions and that those matters should be left for the Presiding Member. [69] It is important to note that significant changes have been made to the RPD Rules and IRPA itself. As well, Chairperson's Guideline 6 has been amended in light of those changes. [70] Prior to the implementation of the new RPD Rules in 2012, Rule 48(4) of the previous RPD Rules38 set out a number of specific factors to be considered on an application to change the date or time of a proceeding: 48(4) In deciding the application, the Division must consider any relevant factors, including (a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application; (b) when the party made the application; (c) the time the party has had to prepare for the proceeding; (d) the efforts made by the party to be ready to start or continue the proceeding; (e) in the case of a party who wants more time to obtain information in support of the party's arguments, the ability of the Division to proceed in the absence of that information without causing an injustice; (f) whether the party has counsel; (g) the knowledge and experience of any counsel who represents the party; (h) any previous delays and the reasons for them; (i) whether the date and time fixed were peremptory; (j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and (k) the nature and complexity of the matter to be heard. [71] Under the new RPD Rules,39 Rule 54 deals with applications to change dates or times of proceedings. Rule 54 is far more succinct than its predecessor and its operative provisions relating to this claim are as follows: 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. (3) If it is not possible for the party to make the application in accordance with paragraph (2)(b), the party must appear on the date fixed for the proceeding and make the application orally before the time fixed for 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. (RAD emphasis) Subrule (5) is only applicable to the re-setting of hearing dates where a claimant retains counsel within five days of the date on which a RPD hearing date is set and is, therefore, not relevant in this case. [72] Chairperson's Guideline 6 provides guidance as to the importance of adherence to the legislated time frames set out in the Act. Under General Principles the Guideline provides: 3.1.2 To fulfil its mandate, the IRB must schedule and conduct its proceedings so that immigration appeals, refugee appeals, admissibility hearings, detention reviews, refugee protection claims, and other proceedings are finalized as quickly as possible and, where applicable, within their legislative timeframes. The IRB must minimize the number of unnecessary postponements and adjournments and conduct cases quickly and fairly. [73] With specific reference to the RPD, the Guideline stipulates: 7.1 On December 15, 2012 substantial amendments to the IRPA came into force. These changes signal a clear Parliamentary shift toward an emphasis on the expeditious resolution of refugee claims. This shift was further implemented through amendments to the IRPR. The Regulations stipulate, for the first time, that dates for refugee hearings be fixed within specific timeframes, being 30, 45, or 60 days depending on the type of claim. 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. [74] It is within the above noted context of the new Rules that I must assess this ground of appeal. The appellant submitted that:40 First, the adjournment should have been granted in this circumstance. The appellant was denied Legal Aid coverage late and was forced to retain representation last minute. This was the appellant's first request for an adjournment in his matter and there had been no previous delays. Case law indicates in this circumstance alone there is a breach of natural justice and procedural fairness. [75] The appellant cites two authorities with respect to this submission, being the Federal Court (the "Court") 2010 decision in Garcia Perez41 and that same Court's 2012 determination in Vasquez.42 [76] In Garcia Perez, the claimant and his family came to Canada and, by April 24, 2009, all had made claim for refugee protection. By letter dated November 4, 2009, the claimants were advised that their hearing was scheduled for December 7, 2009. The principal claimant, not being able to afford counsel, arranged with law students to represent the family. On November 18, 2009, the claimants sought a rescheduling of their RPD hearing to February 2010 to accommodate the fact that the students would not be available on the scheduled date due to exams and vacation. The request was denied. A postponement was also sought at the hearing and was denied again on the grounds that the claimants had had sufficient time to retain counsel and the hearing proceeded with them being unrepresented. Not being able to finish on that date, the hearing resumed on January 29, 2010. On that date, the claimants advised that the students sought a postponement so that they would be available. Again, it was refused on the basis that there had been sufficient time to retain counsel. The claims for protection were unsuccessful. [77] The Court determined that it seemed that the RPD mistakenly thought that the claimants were seeking time to retain counsel when, in fact, they did have the students to represent them but needed postponements in order to accommodate their availability. Importantly, the Court noted all of the 11 factors which should be considered under Rule 48(4) of the previous RPD Rules. In determining that, in the result, there had been procedural unfairness the Court specifically noted at paragraph 50 that, "There is no indication that the RPD considered the factors enumerated in section 48(4) of the Refugee Protection Division Rules or the applicable case law".43 The Court cited authorities to the effect that the RPD must consider all of the 48(4) factors when considering such an application. [78] The Vasquez case concerned a refugee claim which was to be heard on March 11, 2011. Two days before, the claimant requested a postponement in order to seek legal counsel. The request was rejected as was a similar request at the hearing on the same grounds. These refusals were in light of advice that a law school teaching clinic was prepared to represent the claimant but not until mid-May or June 2011. In finding that there had been a breach of the duty to ensure procedural fairness, the Court was very specific that the RPD's failure to consider all of the Rule 48(4) factors led to such a breach. In paragraph 18 the Court found: [18] I am not satisfied the Board weighed all of the relevant factors in determining whether to grant the postponement. It is not sufficient for the Board to state that it considered all the factors listed in rule 48. The record and the decision must show that the Board did, in fact, consider the positive and negative factors in its assessment... And: [20] Therefore, I am not satisfied that the Board considered all of the relevant factors before arriving at a negative decision and, in failing to do so, it breached its duty to act fairly. [79] Both of the above cases conclude that a finding that a Board breached its duty to ensure procedural fairness means that the Board is not warranted any deference and that the standard of review is correctness. As noted earlier, I agree. Both rely on the 2005 Federal Court of Appeal decision in Sketchley.44 [80] However, it is also clear that a Board's decision concerning a postponement is one within the Board's discretion. As stated in paragraph 10 of Vasquez: [10] It is well-established that the decision to allow a postponement or an adjournment falls within the Board's discretion. Furthermore, the right to counsel is not absolute in immigration matters and the Board is master of its own procedure. However, in determining whether to allow an adjournment based on the absence of representation by counsel, the Board must respect procedural fairness. [81] I take from these authorities that an essential part of the procedural fairness in exercising the discretion as to whether or not a hearing will be postponed is to properly apply the criteria set out in the RPD Rules. Prior to the new Rules, those criteria were set out in Rule 48(4). Rule 48(4) no longer exists and has been replaced by Rule 54 which stipulates significantly different factors to be considered. [82] The potential importance of this change was recently alluded to by Justice Rennie in the 2013 Federal Court case of Purnell.45 In that decision the Justice noted that the RPD in that case had failed to properly consider the Rule 48(4) factors and found: [6] Though it has since been repealed, this rule governed at the time of the hearing. It is a reviewable error for the Board to fail to consider any relevant factors: Vazquez v Canada (Minister of Citizenship and Immigration), 2012 FC 385, para 13; KCC v Canada (Minister of Citizenship and Immigration), 2011 FC 852, para 22. (RAD emphasis) [83] Thus, I find that the situation before me is governed by Rule 54 of the new Rules and not Rule 48(4) of the old. [84] Rule 54(4) stipulates that the RPD must not allow an application to change a date or time of a proceeding unless there are exceptional circumstances. This provision is subject to Rule 54(5) which concerns a situation where a claimant does not have counsel at the time the hearing date is set up but retains counsel within five working days after the date on which the hearing date was fixed. That is not applicable to the facts of this case. [85] Two "exceptional circumstances" listed are a) a change in date is required to accommodate a vulnerable person, or, b) "an emergency or other development outside the parties control and the party has acted diligently". With respect to "vulnerable persons", they are defined in Chairperson's Guideline 8 ("Guideline 8") 46 as those whose ability to present their cases is severely impaired. There is no indication that the claimant in this case was ever sought to be determined a vulnerable person or, in fact, would meet the criteria of Guideline 8. [86] The remaining issue under the criteria found in Rule 54(4)(b) is whether or not there was "an emergency or other development outside the party's control and the party has acted diligently." [87] Having stated the foregoing, I remain mindful that section 3.3.1 of the Chairperson's Guideline 6 concerning rescheduling (amended in light of the new Rules) provides that, "The IRB scheduling process is based on operational and legislative requirements and the principles of natural justice and fairness". As discussed earlier, previous cases have found that the proper application of the then Rule 48 was a very significant factor in determining whether procedural fairness had been applied. Similarly, I find that the proper application of the new Rule 54 remains a critical hallmark of such fairness. [88] The question then is, did Member Azmudeh breach principles of natural justice and procedural fairness when applying her discretion in denying the application to postpone the refugee protection hearing on the morning it was scheduled to proceed. I find that she did not breach such principles and her determination should stand. In my assessment, she was not incorrect when she came to her conclusion. [89] The Member found that the appellant had two months within which to secure representation if he felt it was necessary. The Member found that reliance upon the determination of legal aid did not demonstrate that the claimant had been diligent nor was it a development outside of the party's control. I find this to be an appropriate application of the Member's discretion. [90] The issue of one awaiting the determination of legal aid concerning representation has been previously considered by a number of courts. In a case concerning an application for extending the time within which to seek leave in a judicial review Justice Blanchard stated:47 9. To obtain leave for an extension of time, the applicants must have a reasonable explanation for the delay and must establish an arguable case [See Vinogrado v. Canada (Minister of Employment and Immigration) (1994) 77 F.T.R. 296 (T.D.)]. 10. I am not satisfied, on the materials before me, that the applicants have offered a reasonable explanation to justify the extensive delays in the filing of their leave application and the within motion for reconsideration. Difficulties in obtaining counsel or a legal aid certificate is not, in my view, sufficient reason for failing to bring an application on time nor is it an acceptable explanation for delay that warrants an extension of time. 11. In Kiani v. Canada (Minister of Citizenship and Immigration) 124 F.T.R. 299 at para. 5. Mr. Justice Muldoon confirmed that waiting for confirmation of legal aid is not an adequate excuse for allowing a prescribed time limit to pass. He asserted that the principle was virtually inscribed in stone and cited Mr. Justice Mahoney, for the Federal Court of Appeal in Espinoza v. M.E.I.. [1992] F.C.A.D. 1486-15, 92-A-1361. (a) I am not prepared to grant an indefinite extension. The policy of the Immigration Act and Federal Court Immigration Rules as to the expeditious processing of leave applications is transparently clear. The dilatory initiation of Legal Aid applications, delays in providing opinion letters, which counsel know very well will be required, and the ever slower processing of such applications by some Legal Aid Committees cannot be permitted to defeat the policy of the Act and Rules. As I had occasion to observe in another application for an extension, "the agenda of the London & Middlesex County Legal Aid Committee cannot dictate this Court's administration of the law and application of its Rules." And Justice Zinn:48 [9] This Court has often held that waiting for a response from Legal Aid is not a reasonable explanation for delay: Espinoza v Canada(Minister of Employment and Immigration) (FCA), [1992] FCJ No 437, and Zheng v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1005. Other than stating that they have difficulties understanding the procedure before this Court, they have not advanced any other explanation to justify their delay. [91] An application for legal aid is just that, an application, with no assurance that it will be accepted. Moreover, even if the application would have been accepted rather than rejected on September 17 (i.e. three working days before the RPD hearing), the appellant's lack of diligence would still be manifest in preparing for his hearing. Given the legislative time within which refugee claims are to be heard, the comments of Justice Mahoney are even more telling in my view as to why the RPD cannot abide waiting on legal aid in order to proceed with claims. Moreover, even after the appellant was rejected by legal aid, he was able to obtain counsel, albeit at the last moment. Aside from the fact that he was waiting on legal aid, there is no evidence before me, nor was there before the RPD Member, that such counsel, who he learned of through his brother-in-law, could not have been retained in a timely manner. [92] As discussed earlier, there is no evidence before me as to why the documents the appellant wished to present to the RPD (or their 2008 and 2009 predecessors), could not have been available for the RPD hearing. [93] Additional to the above is the nature of the case which, based on the allegations, has been percolating for 20 years. This was not a sudden event that compelled the appellant to suddenly leave his own country without an opportunity to prepare to present a claim in another country. Moreover, the evidence presented indicates that family members had previously made claims in Canada based on similar facts and could have been a source of referral to counsel as was ultimately the case. Finally, I find that the evidence as to the appellant's application for legal aid itself is deficient. The appellant, who arrived in Canada on XXXX XXXX, 2013, deposed simply that he applied for legal aid coverage in "XXXX2013" without specifying whether it was on XXXX XXXX, XXXX XXXX or any date in between. If one were attempting to show diligence as is required under the Rule, given that there was a two-month period between the Notice to Appear setting the hearing date and the date itself, such lack of precision does not adequately address the question of diligence. The RPD Hearing of the Claim49 [94] At the outset of the hearing itself, Ms. Kyluik reiterated that the appellant was not ready to proceed for the same reasons noted earlier. Member Schmalzbauer properly noted that the application for a postponement had been earlier dealt with that day. At the outset of the hearing, Ms. Kyluik sought leave that the appellant be able to present post hearing documents and post hearing submissions in the circumstances. The Member replied that she would make any such determination after hearing the evidence. [95] The Member proceeded with the hearing. When discussing a lack of corroborating documents, the Member noted that many of the documents the appellant did have, while not translated, were simple birth certificates and a marriage certificate which may not be necessary to corroborate the appellant's testimony. As well, the Member made similar comments about whether she would need to see documentation such as a denunciation and stated that she would think about that. [96] After the Member completed her questions, counsel was asked if she had any questions for the appellant. Counsel said that she did not as she was unprepared and that the appellant was, essentially, self- represented. Likewise, she was not prepared to make submissions. [97] The Member asked the appellant if he had anything further to tell the Member before any decision was made and he replied that he had said what he needed to say and that he hoped the Member would support him and his wife. [98] Counsel then sought to "put on the record" that the appellant had applied for an adjournment, that he had been refused legal aid and that counsel had come onto the case on the eve of the hearing. She said principles of fairness had been violated and that there would have been no prejudice had the matter been delayed. In the course of this, the Member stated that the adjournment matter had been dealt with and that she did not know why counsel's comments needed to be on the record of her hearing. [99] Counsel then made an application that the Member accept post hearing documents as well as written submissions. The Member asked "what other documents" and was advised that counsel did not know but that there may be additional documents. The Member stated that while counsel had come late to the matter, the appellant had not and denied the application for post hearing documents. [100] Regarding submissions, counsel said that she wanted to make post hearing submissions. The Member noted that counsel had heard the same testimony as had the Member and asked counsel if she wanted some time to prepare her oral submissions. Counsel declined as she had had no time to do judicial research to bring to the Member's attention. The Member once again offered time to prepare oral submissions but the offer was declined once again. The request to provide written submissions was denied and, after a break, the Member returned and rendered her decision. [101] In considering this aspect of the appeal, regard will be made to those un-translated documents that were on hand at the time of the RPD hearing. These would include the birth certificates of the appellant, his wife, their marriage certificate and a 1996 death certificate regarding the appellant's mother-in-law. The other four were the un-translated XXXX 2013 documents which confirmed that records, contemporaneous with events, existed concerning the 1996 attack by a member of the Reyes family on the appellant's wife's family which occasioned her mother's death, criminal charges being laid regarding that attack, hospital records arising from the same events and a hospital report regarding the 2008 shooting of the appellant's brother-in-law. [102] Earlier in this decision I indicated that these documents, together with a number of others, were not acceptable evidence on the appeal under subsection 110(4) of the Act. However, the post-hearing production of these specific documents (which were un-translated but in existence at the time of the RPD hearing) was denied by the RPD at that time. Such documents are referenced under RAD Rule50 3 which sets out what must be included in an Appellant's Record. Rule 3(3)(c) states that the record should include: (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal; [103] Accordingly, I will consider those documents in conjunction with the appellant's submission that the denial of their production, post hearing, was also a breach of natural justice and procedural fairness. [104] RPD Rule 43 of the RPD Rules deals with the subject of the post hearing production of documents and provides: 43(1) A party who wants to provide a document as evidence after a hearing but before a decision takes effect must make an application to the Division. (2) The party must attach a copy of the document to the application that must be made in accordance with rule 50, but the party is not required to give evidence in an affidavit or statutory declaration. (3) In deciding the application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the proceedings; and (c) whether the party, with reasonable effort, could have provided the document as required by rule 34. [105] While Rule 43(2) stipulates that such an application should be made under Rule 50 (which provides that such applications be made in writing no later than 10 days before a hearing), since the Member entertained the application at the hearing I infer that she waved that requirement. [106] In light of the criteria in Rule 43(3), I find that the documents that the appellant had at the hearing in un-translated form would not be appropriate for post hearing production. [107] With respect to relevance and probative value, it is clear from the RPD reasons that the Member found the appellant's narrative itself to be reliable and credible. Accordingly, the appellant's testimony with regard to his birth date, his wife's, the date of their marriage and the fact of the 1996 and 2008 shootings were accepted by the Member without need of documentary corroboration and, therefore, post hearing production of the documents was not relevant or probative. As well, and in the sense that the Member accepted the testimony of the appellant with regard to the subject matter of the documents, those documents do not bring anything "new" to the preceding. Additionally, for the same reasons discussed earlier with regard to subsection 110(4) of the Act, when the Member noted in connection with the application for post hearing documents that, while counsel might have been new to the claim the appellant was not, the Member was concluding that such documents could have been produced in the normal course under the Rules. [108] Given that Rule 43(2) anticipates that documents which are the subject matter of the application for post hearing production be attached to an application, the Rule does not concern itself with as yet unascertained documents. Accordingly, to the extent the application was for time to produce documents not yet known, it was essentially another attempt to postpone or adjourn the proceedings, a matter which had already been dealt with by the RPD, the result of which I have found did not constitute a breach of natural justice or of procedural fairness. Accordingly, I also find that the Member's determination to not accept post-hearing documentation did not constitute a breach of natural justice or of procedural fairness. [109] Finally, with respect to post-hearing submissions, RPD Rule 10(7) provides that, "Representations must be made orally at the end of the hearing unless the Division orders otherwise". In considering the request, the Member noted that counsel had heard the same evidence as the Member and twice offered a break so that counsel could prepare oral submissions. With regard to an opportunity to do judicial research, counsel was not specific in that regard before the RPD Member and has not provided any indication to the RAD what this judicial research might have entailed. Taking all of these matters into consideration, I find that, in all of the circumstances, the RPD's denial of written submissions was also not a breach of natural justice or procedural fairness. CONCLUSION [110] For the foregoing reasons, I confirm the determination of the RPD that XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection within the meaning of sections 96 and 97 of the Act and his appeal is dismissed. (signed) "Philip MacAulay" Philip MacAulay March 10, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 2 RAD Exhibit 3, Refugee Protection Division Record (RPDR), pp. 61-99. 3 RAD Exhibit 2, Appellant's Record (AR). 4 RAD Exhibit 3, RPDR. 5 RAD Exhibit 3, RPDR, p. 3. 6 RAD Exhibit 2, AR, p. 166. 7 RAD Exhibit 2, AR, p. 173. 8 RAD Exhibit 2, AR, pp. 13-14. 9 Dunsmuir v. New Brunswick, 2008 SCC 9. 10 For example see X (Re), 2013 CanLII 82622 at para. 29 (IRB); X (Re), 2013 CanLII 67015 at para. 29 IRB): X (Re), 2013 CanLII 76397 at para. 18 (IRB); X (Re), 2013 CanLII 76473 at para. 28 (IRB); X (Re), 2013 CanLII 76390 at para. 27 (IRB). Decisions on CanLII are publicly available at <http://canlii.org>. 11 X (Re), 2013 CanLII 61014 (IRB), publicly available at <http://canlii.org>. 12 RAD Exhibit 2, AR, pp. 7-57. 13 RAD Exhibit 2, AR, p. 58-59. 14 The Law Society of Alberta Code of Conduct, 2011. 15 RAD Exhibit 2, AR, p. 58. para. 5. 16 Refugee Protection Division Rules (the "RPD Rules"), SOR/2012-256; However, pursuant to Rule 54(2)(c) of the RPD Rules, three dates are required to be provided in any application to change the date or time of a proceeding. 17 X (Re), 2013 CanLII 84909 (IRB). publicly available at <http://canlii.org>. 18 Law Society of Upper Canada, Rules of Professional Conduct, Rule 4.02(1). 19 Imperial Oil Ltd. v. Grabarchuck (1974), 3 O.R. (2d) 783 (C.A.), at para. 2. 20 R. v. Deslauriers (1993), 83 Man.R. (2d) 7 (C.A.). 21 Federal Courts Rules, SOR/98-106, r. 82. 22 Tai v. Canada (Citizenship and Immigration), 2010 FC 788, at para. 2. 23 Seymour Stephens v. Canada (Citizenship and Immigration), 2013 FC 609, at para. 29. 24 Maryland Casualty Co. v. Roy Fourrures Inc., [1974] S.C.R. 52, at 56. 25 Seymour Stephens v. Canada (Citizenship and Immigration), 2013 FC 609, at para. 29. 26 Pusuma v. Canada (Citizenship and Immigration), 2012 FC 1025, at para. 56. 27 RAD Exhibit 2, AR, p. 7. 28 Specifically referred to as RAD Exhibit 2, AR, pp. 7-8. 29 RAD Exhibit 2, AR, p. 9. 30 RAD Exhibit 2, AR, p. 57. 31 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 32 Mooketsi v. Canada (Citizenship and Immigration), 2008 FC 1401. 33 RAD Exhibit 3, RPDR, p. 29. 34 RAD Exhibit 2, AR, p.57. 35 RAD Exhibit 3, RPDR, Compact Disk #1. 36 Refugee Protection Division Rules, SOR/2012-256 37 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson, Pursuant to Paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 6 - Scheduling and Changing the Date or Time of a Proceeding, Effective date: April 1, 2010 Amended December 15, 2012. 38 Refugee Protection Division Rules, SOR/2002-228. 39 Refugee Protection Division Rules, SOR/2012-256. 40 RAD Exhibit 2, AR, p. 172, para. 26. 41 Garcia Perez v Canada (Minister of Citizenship and Immigration), 2010 FC 1275. 42 Vasquez v. Canada (Minister of Citizenship and Immigration), 2012 FC 385. 43Immigration and Refugee Board of Canada, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, Effective date: December 15, 2006 Amended: December 15, 2012. 44 Sketchley v. Canada (Attorney General), 2005 FCA 404. 45 Purnell v. Canada (Minister of Citizenship and Immigration), 2013 FC 444. 46. Immigration and Refugee Board of Canada, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, Effective date: December 15, 2006 Amended: December 15, 2012. 47 Shokri v. Canada (Minister of Citizenship and Immigration), 2002 FCT 785. 48 Flores Cabrera v. Canada (Minister of Citizenship and Immigration), 2011 FC 1251. 49 RAD Exhibit 3, RPDR, Compact Disk #2. 50 Refugee Appeal Division Rules, SOR/2012-257. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-03047 RAD.25.02 (February 7, 2014)