TB9-13475

RAD File / Dossier de la SAR: TB9-13475 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 / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 7, 2020 Date de la décision Panel Charles A. McDermott Tribunal Counsel for the person who is the subject of the appeal Benjamin J Liston Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. [2] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Egypt. The Appellant alleges that his father was opposed to the rule of Gamal Abdulsnasser and was imprisoned various times both before and after the Appellant's birth. The Appellant and members of his family were forbidden to join the military, the police, or judiciary college. The Appellant's appointment as a XXXX XXXX was approved with the stipulation that he not practice any political activities. When the Appellant returned from a trip to China in XXXX 2011, the revolution against the current Egyptian leader, Mubarak, had begun. The Appellant's three older children were involved in the revolution and the Appellant was supportive of them. When President Mubarak stepped down, the Appellant supported Mohamed Morsi. Morsi was overthrown in a military coup in 2013. In XXXX 2016, while the Appellant was in China, police, targeting XXXX and XXXX, broke into his home in Cairo. The Appellant believed that he would be arrested and detained, or even worse. The Appellant arrived in Canada on XXXX XXXX, 2018 and made a claim for protection on XXXX XXXX, 2018. [3] The Refugee Protection Division (RPD) found there was insufficient credible and trustworthy evidence to establish the claim. The Appellant argues that his former counsel's incompetence and the lack of a complete audio recording of the hearing resulted in him being denied procedural fairness. [4] The Appellant has submitted new evidence, but has not requested an oral hearing. DECISION [5] The appeal is allowed. I send this matter back to the RPD to be redetermined. NEW EVIDENCE Some of the evidence presented by the Appellant is accepted [6] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 [8] The Appellant has provided an affidavit3 that to some extent repeats his story. However, parts of the affidavit, specifically paragraphs 4, 9 to 15, 16, 18 to 22 and 24, do describe the Appellant's interactions with his former counsel, including the Appellant's recollection of how the various documents were prepared and information that the Appellant had provided to his former counsel. This evidence did not arise after the RPD decision and was reasonably available at the time of the decision. However, I find that the Appellant could not reasonably have been expected in the circumstances to bring this evidence to the RPD before its decision. Turning to the Raza factors, the evidence is new in the sense that it tends to refute the RPD finding of omissions from the Appellant's narrative, it was sworn in Canada so I have no reason to doubt its credibility and the information is clearly relevant to the appeal. I accept the paragraphs mentioned above into evidence. For the same reasons, I accept into evidence Exhibit "A"4, Exhibit "B"5 and Exhibit "D"6 of the Appellant's affidavit. [9] Regarding the other new evidence that the Appellant has submitted, I will not be dealing with its admissibility as it is not necessary for my finding that the file should be sent back for redetermination. ANALYSIS [10] My role is to look at all the evidence and decide if the RPD made the correct decision.7 Competence of former counsel [11] The Appellant argues that his former counsel was not competent, and this denied him procedural fairness before the RPD. The Appellant has released his former counsel from any privilege attaching to his former representation. [12] The Federal Court8 has long held that the party alleging incompetent assistance bears the onus of establishing both that former counsel's act or omission constituted incompetence without the benefit and wisdom of hindsight and that the outcome would have been different but for the incompetence. The Court also held that the threshold is very high. [13] For the reasons that follow, I find that the Appellant has met this high threshold. Preparation of Basis of Claim form [14] The Appellant argues that his former counsel failed to meet with him to prepare his Basis of Claim (BOC) form, failed to elicit necessary details for the narrative, and effectively outsourced the BOC form preparation to an interpreter and/or Google Translate. [15] The Appellant's arguments have merit. [16] At the beginning of any RPD hearing, before confirming the signature of the claimant on the BOC form, the RPD typically asks the claimant if the information in the BOC is true, complete and up to date and gives the claimant an opportunity to make amendments. This did not happen here. Starting at 0:03:20 of the January 16 hearing, the RPD stated the following: "Now I see that when you completed the (BOC) form, you were working with an interpreter. It's always my concern that the interpreter informs the claimant such as you of all of the information that was placed there in English. Did the interpreter inform you of everything that had been placed in this form?" The Appellant responded: "Yes, we started these forms at the office (some inaudible words) and I had an interpreter with me." [17] The RPD then went on to enter the various exhibits into evidence, give the Appellant the usual instructions regarding the answering of questions, state the issues the hearing should focus on, then moved directly to questioning the Appellant on the merits of his claim. It was unlikely, at this point of the hearing, that the Appellant would have had any awareness that his BOC narrative could be lacking in any way. In addition, at no point during the RPD questioning did the Appellant indicate that he should have amended his BOC form. For these reasons, I find that nothing turns on this oversight by the RPD. [18] At first glance, the Appellant's BOC narrative9 does not appear out of the ordinary. The Appellant's and Interpreter's declarations10 were properly signed and I can see no reason why the RPD would not accept the narrative at face value or would have been alerted to any specific translation issues. [19] The RPD did rely on inconsistencies between the Appellant's testimony and his BOC narrative to impugn his credibility on at least two occasions. At paragraph 22 of the RPD decision, the RPD asked why he had omitted from his narrative that an order of arrest had been issued against him. The Appellant testified that he had included in his narrative that he was wanted by the police. The Appellant's BOC narrative does not mention that there was an order for his arrest. Furthermore, in the certified translation of the Appellant's Whatsapp messages11 in support of his allegations, there is no mention of an order of arrest, but simply states that "a ferocious force headed at 3 am on XXXX. 2016 to my original residence located at XXXX XXXX XXXX XXXX XXXX, Cairo and they broke the door and found no one nor any furniture." Similarly, in paragraph 25 of the RPD decision, the RPD found that the Appellant had embellished his testimony regarding how he had evaded authorities. Again, the Appellant had stated that he had included this information in his narrative. This information is not in his BOC narrative and the certified translation simply states "But I took precautionary steps and left my house and took my children to another residence in a quarter far away from my original residence. I moved many times from one place to another in the last four years." There is no mention in his Whatsapp messages of always being accompanied by students, deliberately taking many days off work or using public transportation to avoid authorities. I find that the Appellant failed to demonstrate the translation of his Whatsapp messages explains the omissions from his narrative. [20] In his affidavit, the Appellant states that he was simply told to sign the documents and, having trust in his former counsel, he alleges he did so without having the documents translated back to him or fully understanding the contents. The Appellant's statement to the RPD at the beginning of the hearing and his assertion in his affidavit are inconsistent, but as explained in his affidavit12, "I put my full trust in (my former counsel) because I considered him to be a professional with years of experience in the field. In Egypt and during my business ventures in China I had various occasions to retain lawyers over the course of many years. I never had any problems with any of these lawyers. They never misled me and always did the work that I retained them to do. I had every expectation that the same would happen in Canada." The Appellant's former counsel, in his response to the allegations, stated13: "We want to clarify that the case of the person(s) mentioned above was handled professionally with adequate representation mandated by the ICCRC Codes of Professional Ethics and other by-Laws applicable in this situation. In the allegations against us, the client has mentioned the lack of competencies for the overall performances while representing his case. As a good standing ICCRC Member, we have endeavoured to complete all the duties as per the advice given by the client. We strongly stand on the side of our office staff who worked on their best to accomplish their tasks under my supervision to implement the ICCRC's Code of Professional Ethics and other By-Laws properly in my office. We have offered a quality service, advised client with honesty and candour, maintained the confidentiality and followed competent duties. We are consistent to adhere the ICCRC policy, IRB, PRD and RAD rules or any other Acts and Regulations to corroborate client's efforts to finalize their case. We have worked hand in hand with the mentioned client and it is unfortunate to hear such allegations while completing our duties properly with a good faith." [21] The Appellant, in his reply14 to former counsel's response, states that "Former counsel's response fails to address any of the myriad specific allegation raised in the Appellant's appeal." He goes on to submit that former counsel's failure to meaningfully respond to or rebut any of these allegations leads to the reasonable inference that there is no rebuttal. I agree with the Appellant. Refugee claimants tend to rely on their counsel. Moreover, the Appellant's previous dealings with lawyers had always yielded satisfactory results and the Appellant had no reason not to expect the same here. The Appellant's former counsel's statements are not responsive to the specific allegations made by the Appellant. I find that, on a balance of probabilities, the Appellant's former counsel failed to advise the Appellant to include relevant information regarding his reavailment and his delay in leaving Egypt in his BOC narrative and this supports the Appellant's argument of a lack of procedural fairness. Supporting documentation for the claim [22] The Appellant provided some supporting documentation to the RPD in support of his claim. However, when asked by the RPD why he had not provided a letter from his family, the Appellant responded that he did not realize it would help and that in Egypt, courts do not accept family statements. The RPD ultimately found there was insufficient credible and trustworthy evidence to establish a claim. The Appellant argues that his former counsel did not advise him to obtain more supporting documentation and this further demonstrates inadequate representation. [23] The Appellant's argument has merit. RPD Rule 11 is clear that claimants must provide acceptable documentation establishing their identity and other elements of the claim, or explain why they did not and what steps they took to obtain them. While the Appellant would not necessarily be aware of Rule 11, former counsel certainly should have known that the RPD was expecting supporting documentation or an explanation for why there is none. In addition, the Appellant asserts that his experience with Egyptian law led him to believe that such documents would not have been admissible here. I find that, on a balance of probabilities, former counsel did not have a discussion with the Appellant regarding obtaining supporting affidavits and this supports the Appellant's argument of a lack of procedural fairness. Former counsel's written submissions [24] The Appellant argues that written submissions made by former counsel did not respond to the issues identified by the RPD. [25] The Appellant's argument has merit. The Appellant's former counsel did provide written submissions15, which were received on May 1, 2019. The cover page of the submissions includes the Appellant's name and correct RPD file number, but incorrectly identifies the Appellant as being stateless. The submissions do include some facts related to the Appellant, but also include facts that appear to be associated with another claim. For example, the first and second paragraphs of Part One refer to claimants, not a single claimant, and that they are claiming protection on the basis of their different nationality, race and religious beliefs. The same paragraphs refer to the claimant's "country of normal habitual residence in Egypt." Part Two states that the applicant is born in Egypt and that he is persecuted in Egypt because of his race and on religious grounds because of his political view. There was nothing before the RPD, nor is there anything before me, regarding the Appellant's religion as a motive for his troubles. [26] The RPD noted that the Appellant's former had sent the written submission, but did not otherwise refer to the submission or make any comment regarding the inclusion of facts unrelated to the Appellant. [27] The RPD identified three issues related to the Appellant's claim: credibility, reavailment and the delay in leaving Egypt. At the hearing, the RPD questioned the Appellant on omissions and inconsistencies between the Appellant's testimony and his written narrative, but counsel makes no mention of this in his submission. The submission, which runs to eight pages, includes only the following16, reproduced exactly as written, on credibility: "In this case, the panel has not only the claimants' narrative but also his testimony, which is consistent and supported by documents." [28] The only reference to reavailment in the written submission is the following sentence17, reproduced exactly as written, in the Nature of Claim section: "Luckily the claimant has managed to get out 1st to China hopping his chines might sponsor him but she declined to do so, and he had to take another risk by going back to Egypt and find away to get A visa to a country where he can claim protection." While the submission acknowledges that the reavailment occurred, there is no explanation or argument for why this should not be held against the Appellant. [29] The written submission makes no mention of the Appellant's delay in leaving Egypt. [30] I find that the written submissions by the Appellant's former counsel are not responsive to the issues raised by the RPD and support the Appellant's allegation of inadequate representation. Conclusion on inadequate representation [31] I find that, on a balance of probabilities, the Appellant has demonstrated that the representation by his former counsel was inadequate and that this has denied the Appellant procedural fairness. Lack of oral recording [32] The Appellant argues that the incomplete hearing audio recording establishes a separate breach of procedural fairness. [33] There is no merit to the Appellant's arguments. The recording of the first sitting, on January 16, 2019, was eventually provided to the Appellant. However, the recording of the second sitting, on April 17, 2019, is not complete. All of the initial RPD questioning was recorded, and then a short break was announced. Before the recording was stopped, there was a brief discussion, not all of which was audible, regarding what would happen when the hearing resumed. One item that was clear was that the RPD and counsel agreed that counsel would provide written submissions. The recording was then stopped. There is no recording of counsel's questions to the Appellant or if there was any follow-up by the RPD. [34] As noted by the Federal Court18, neither the legislation nor the case law indicates that there is an obligation to record the RPD hearing. The Court goes on in paragraph 8 to state that where there is no statutory right to a recording, "courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice." On the other hand, if the court cannot dispose of an application before it because of the absence of a transcript, this will violate the rules of natural justice. [35] The record before me allows me to dispose of this case in the absence of the complete hearing recording. Accordingly, I find that the absence of a complete recording is not a breach of natural justice and the Appellant was not denied procedural fairness on the basis of an incomplete recording of the RPD hearing. CONCLUSION [36] I find that the Appellant was denied procedural fairness due to inadequate representation by his former counsel. As all of the relevant evidence is not properly before me, I am unable to substitute my own decision. [37] The appeal is allowed. I send this matter back to the RPD to be redetermined. DIRECTIONS TO THE RPD [38] The matter is to be heard by a differently constituted panel. (signed) "Charles A. McDermott" Charles A. McDermott December 7, 2020 Date 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Exhibit P-2, Appellant Record, pp 17-35. 4 Exhibit P-2, Appellant Record, pp 36-42. 5 Exhibit P-2, Appellant Record, pp 43-47. 6 Exhibit P-2, Appellant Record, pp 52-54. 7Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 Abuzeid v. Canada (Citizenship and Immigration), 2018 FC 34 at paragraph 21. 9 Exhibit RPD-1, RPD Record, pp 23-25. 10 Exhibit RPD-1, RPD Record, page 30. 11 Exhibit P-2, Appellant Record, pp 39-42. 12 Exhibit P-2, Appellant Record pp 22-23. 13 Exhibit I-1, Letter from XXXX XXXX(XXXX) to Immigration and Refugee Board of Canada, dated September 18, 2019. 14 Exhibit P-3, Facsimile from XXXX (XXXX) to Immigration and Refugee Board, dated September 20, 2019, at page 3. 15 Exhibit RPD-1, RPD Record, pp 313-320. 16 Exhibit RPD-1, RPD Record, page 318. 17 Exhibit RPD-1, RPD Record, page 314. 18 Antunano Martinez v. Canada (Citizenship and Immigration), 2019 FC 744, at paragraph 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB9-13475 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français