TB9-01254

RAD File / Dossier de la SAR : TB9-01254 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 7, 2019 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Jack C. Martin Conseil de la personne en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX (the "Appellant") is a citizen of Angola and is a minor. The Appellant's Aunt was appointed as his Designated Representative (DR) and this appointment is confirmed. [2] The Appellant is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [3] The appeal is dismissed. BACKGROUND [4] The Appellant is a citizen of Angola. The Appellant fears a gang who robbed his parents' XXXX. After gang members were arrested and later released, gang members then approached, attacked and threatened to kidnap and kill the Appellant. The Appellant called out for help and the police were able to rescue the Appellant. [5] The Appellant's Aunt was visiting the Appellant and his family from Canada. The Appellant was having trouble concentrating at school as a result of the attack. The Appellant travelled with his aunt to Canada for a visit. When it came time to go back, the Appellant still feared what would happen if he were to return, and still feared the gang, and so made a refugee claim. [6] The RPD rejected the Appellant's claim on the basis that he had a safe and reasonable Internal Flight Alternative (IFA) to Uige, Huambo and Luena. ADMISSIBILITY OF PROPOSED NEW EVIDENCE [7] In support of this appeal, the Appellant proposed the admission of the following document as new evidence: a. An affidavit from the Appellant's Aunt dated XXXX XXXX 2019.1 [8] S.110(4) of the Immigration and Refugee Protection Act (IRPA)2 provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.4 [9] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for s.110(6) and the request for an oral hearing.6 [10] The main new content in the proposed affidavit relates to a complaint against the Appellant's Counsel at the RPD hearing. Subsequent to the filing of this appeal, the Appellant also then provided the following documents: a. Letter of complaint to the RPD Counsel dated 6 March 2019;7 b. Written response from the RPD Counsel dated 14 March 2019;8 and c. Appellant's reply to RPD Counsel's written response dated 19 March 2019.9 [11] These documents are all being submitted as new evidence under Rule 29 of the Refugee Appeal Division Rules.10 [12] Rule 29 allows the Appellant to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of s.110(4) of the IRPA and how that evidence relates to the Appellant.11 In determining the application, the RAD must consider any relevant factors, including: the relevance and probative value of the document, any new evidence the document brings to the appeal, and whether the Appellant could have, with reasonable effort, provided the document with the Appellant's Record. All documents accepted [13] The contents of all of the proposed new documents listed above all relate to the allegations of incompetence by the RPD Counsel. As the allegations were raised after the RPD decision, I find this meets the requirements of s.110(4) of the IRPA. [14] Furthermore, the documents relating to the allegations include a copy to the RPD Counsel sent after the perfection of appeal date. It is not clear from the evidence in front of me as to whether the current RAD Counsel could have sent the original complaint to the RPD Counsel ahead of the date of perfection of appeal. It is clear however that the timing of RPD Counsel's response was not under the control of the Appellant or the RAD Counsel. When taking these factors into account, I find that all of these documents were not reasonably available at the date of perfection, and so meet the requirements of Rule 29 of the Refugee Appeal Division Rules. [15] The documents are credible on their face, and are new as they arose after the RPD decision. In terms of relevance, the documents are capable of showing that a breach of natural justice took place at the RPD hearing. I therefore find the proposed documents meet the Singh and Raza factors and are accepted as new evidence. NO ORAL HEARING [16] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.12 [17] I find that in this case, the proposed new evidence does not deal with the issue of credibility of the person of the subject of the appeal, but instead deals with an issue of natural justice relating to the RPD Counsel. I therefore find that a RAD hearing on this issue is not appropriate, and I choose not to hold a hearing in this case. ISSUES IN APPEAL [18] The Appellant argued the following issues in his appeal: a. The RPD erred by not properly considering and applying the Chairperson's Guidelines on Child Refugee Claimants13 (the Child Guidelines). b. The RPD erred by not giving proper notice of the proposed IFA to the Appellant and therefore breached procedural fairness. c. The RPD erred when making its IFA analysis and its conclusion that there were safe and reasonable IFAs available to the Appellant in Angola. d. There was a breach of natural justice during the RPD hearing due to the RPD Counsel's incompetence. [19] I find that the determinative issues are: a. Was there a breach of procedural fairness by the RPD in terms of disclosure of IFA as an issue? b. Was there a breach of natural justice due to RPD Counsel incompetence? c. If the answers to both of the above issues is no, then do either Uige or Huambo constitute safe and reasonable IFAs for the Appellant? [20] In looking at these issues, one needs to keep in mind that there are elements that are interrelated between these issues. I have done my best to clarify where these interrelations take place in my analysis below. ANALYSIS [21] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,14 the RPD Decision,15 and the Appellant's Basis of Claim (BOC) Form16 amongst other documents. [22] I also bear in mind the Child Guidelines. RPD did not err regarding Child Guidelines nor breach of procedural fairness [23] The Appellant argued that the RPD failed to consider the Child Guidelines in relation to assessing the Appellant's claim. [24] A closer examination of the Child Guidelines states, "The question to be asked when determining the appropriate process for the claim of a child is what procedure is in the best interests of this child?"17 It is in relation to the process, not the determination of the claim itself, that requires application of the best interests principle. [25] I also note that the Child Guidelines provide three categories of child in terms of whether they should be considered an accompanied, or an unaccompanied child. Of particular note: The second category consists of children who arrive in Canada with, or are being looked after in Canada by, persons who purport to be members of the child's family. If the CRDD [Convention Refugee Determination Division] is satisfied that these persons are related to the child, then the child should be considered an accompanied child [emphasis added]. If the CRDD is not satisfied as to the family relationship, then the child should be considered an unaccompanied child.18 [26] As the Appellant's Aunt was appointed as DR, and I confirm the appointment, and there is no question raised by any party as to the relationship between the Appellant and his aunt, the Appellant should be considered an accompanied child. [27] The Appellant raised that certain special procedures should have taken place at the RPD hearing. [28] The Appellant argued that a pre-hearing conference should have been scheduled within 30 days of the receipt of the Personal Information Form (PIF) (now referred to as the BOC) following Part A, Section III, Paragraph 5 of the Child Guidelines. However, I note that that section of the guidelines relates to the processing of the claims of unaccompanied children. I have already established that the Appellant is an accompanied child, so this section of the guidelines does not apply to him. [29] The Appellant also makes reference to Part B, Section II on Evidentiary Issues of the Child Guidelines that During the course of the hearing, extensive use may be made of conferences with the hearing participants to resolve issues as they arise. For example, the panel may hear some testimony on a particular issue from the child and then hold a conference with the hearing participants to determine what further testimony, if any, is required. Tied in with this section, the Appellant alleges that the RPD should have named the proposed IFAs at a pre-hearing conference rather than after the hearing had begun. [30] I do not agree with the Appellant's argument that the specific IFA cities needed to be named in a pre-hearing conference. I note that the RPD Member mentioned IFA as one of the issues at the beginning of the hearing, although I do note that the specific cities were not named until well into the hearing itself. That said, the Appellant, with the benefit of RPD Counsel, ought to have known that IFA was potentially an issue. I am aware of the allegations of RPD Counsel incompetence, so this element will be explored more below. [31] I find that it was enough for the RPD to mention IFA at the beginning of the hearing, and note that the Appellant and DR were given plenty of opportunities to address IFA during the hearing. Naming specific cities at the outset of the hearing is not required. [32] This was not a circumstance where the RPD wrote on an issue which the Appellant or DR had no opportunity to comment, which would be a breach of procedural fairness. [33] I find that the RPD did not err in the conduct of the hearing and did not breach procedural fairness. There was no breach of natural justice [34] The Appellant has also alleged that his RPD Counsel was incompetent, and should have done more to address the issue of IFA. [35] In assessing this ground of appeal, I bear in mind the Practice Notice on Allegations Against Former Counsel.19 I note that in line with the Practice Notice, the Appellant's RAD Counsel has provided a copy of the written allegations of misconduct to the RPD Counsel.20 That RPD Counsel has responded,21 and the Appellant has responded to the response.22 [36] Many of the original allegations are outlined in the Appellant's Memorandum. The Appellant alleges that: a. The RPD Counsel did not prepare with regards to the reasonableness prong of the IFA analysis. b. The RPD Counsel did not address IFA properly during submissions, including failing to refer to caselaw. c. The RPD Counsel did not properly address IFA in the BOC. The Appellant argues that the combination of these factors resulted in a breach of natural justice. [37] In analysing the allegations of counsel incompetence, I bear in mind the case of Gombos as follows: The test for addressing allegations of ineffective or incompetent assistance of counsel has been well defined by the jurisprudence (Zhu v Canada (Public Safety and Emergency Preparedness), 2017 FC 626 (CanLII) at paras 39-43). First, the applicant must establish that the impugned counsel's acts or omissions constituted incompetence and, second, that a miscarriage of justice resulted (R v GDB, 2000 SCC 22 (CanLII) at para 26 ("GDB")). The burden is on the applicant to establish both the performance and the prejudice components of the test to demonstrate a breach of procedural fairness (Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 (CanLII) at para 17). Incompetence of former counsel must be sufficiently specific and clearly supported by the evidence (Shirwa v Canada (Minister of Employment and Immigration), 1993 CanLII 3026 (FCA), [1994] 2 FC 51 at para 12 (FCA) ("Shirwa"); Memari v Canada (Citizenship and Immigration), 2010 FC 1196 (CanLII) at para 36 ("Memari")). There is also a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance (GDB at para 27; Yang v Canada (Citizenship and Immigration), 2008 FC 269 (CanLII) at paras 16, 18). Incompetence will only result in procedural unfairness in "extraordinary circumstances" (Shirwa at para 13; Memari at para 36; Pathinathar v Canada (Citizenship and Immigration), 2013 FC 1225 (CanLII) at para 38; Nizar v Canada (Citizenship and Immigration), 2009 FC 557 (CanLII) at para 24).23 [38] Bearing this case in mind, I would comment as follows on the various allegations of incompetence. [39] I find that the Appellant's RAD Counsel has mischaracterised and exaggerated the conduct of the RPD Counsel when it comes to addressing the issue of the reasonableness prong of IFA. The Appellant argued that the RPD Counsel did not mention IFA once in relation to submissions. However, I note that the RPD Counsel did ask questions of the Appellant about why he could not relocate to the proposed IFA locations, and that the answers of the Appellant included issues about his mental health and ability to attend school, as well as his parents' career situations, including an allegation that it would be problematic given that his parents would have to start their careers all over again. This was not mentioned in the Appellant's Memorandum. It is possible that the RAD Counsel in place of the RPD Counsel would have asked more questions, but I find that the conduct of the RPD Counsel comes within the wide range of reasonable professional assistance. [40] In relation to submissions, I find that the fact that the RPD Counsel did not refer to caselaw is not a fatal mistake, and in fact is not an indication one way or the other of competence. What constitutes effective submissions is a subject of much discussion, and in truth there is not really a single answer to what is required in effective submissions. Sometimes reference to caselaw is necessary and persuasive, but similarly, rattling off case after case during submissions can be equally ineffective in persuading a decision maker to accept a refugee claim. [41] In relation to what the RPD Counsel did do, I note that his submissions on IFA were very brief and that he did not refer to caselaw. That said, I find that it does fit within the wide range of reasonable professional assistance. Furthermore, for reasons I will discuss in the IFA section below, I find that the arguments advanced by the RAD Counsel are also not particularly persuasive, and that if the RPD Counsel advanced these arguments in submissions, the result would have been the same. [42] On the issue of the RPD Counsel not addressing IFA in the BOC, I do find that the RPD Counsel should have done this and did fail to do so. That said, the fact that the RPD Counsel was able to address IFA at the hearing stage cures this mistake, and I find that the fact IFA was not properly addressed in the BOC has not resulted in a breach of natural justice. [43] There is certainly an argument to be made that the RPD Counsel could have done more on addressing the issue of IFA, but I find that what the RPD Counsel did do overall did fall within the wide range of reasonable professional assistance. Incompetence will only result in procedural unfairness in extraordinary circumstances, and I find that based on the evidence before me, these are not such extraordinary circumstances. [44] I find on a balance of probabilities that the actions of the RPD Counsel do not constitute incompetence to a level that has created a breach of natural justice. The actions of the RPD Counsel fall within the range of reasonable professional assistance, and the Appellant was not prejudiced by the RPD Counsel's performance at the RPD. Safe and Reasonable IFAs are available to the Appellant [45] Having found that there was no breach of procedural fairness and no breach of natural justice, I now turn my mind to whether or not either of Uige or Huambo constitute safe and reasonable IFAs. I note that in both the RPD Decision and the Appellant's Memorandum, the towns of Luena and Luanda appear to be used interchangeably as a possible IFA, despite being different places more than 1000 km apart. It is not clear to me which of these two towns I should be considering. That said, only one safe and reasonable IFA is required for the appeal to be upheld, so I shall be focusing on the towns of Uige and Huambo. [46] The Appellant has firstly argued that the RPD erred in its overall assessment of IFA in relation to the threshold for determining whether or not the proposed IFAs are reasonable. The Appellant has argued that special considerations need to be taken into account for child refugee claimants citing the cases of Elmi24 and Thirunavukkarasu (as referenced in Elmi). [47] I note that in those cases, the claimants in question were children, but in which particular attention was paid to those who had "the absence of any friend or relation."25 As stated earlier, the Appellant is an accompanied minor, not an unaccompanied child in his refugee claim. Further to this, I have no evidence before me that the Appellant's parents have abandoned the Appellant, and that they would not live together if the Appellant were to be sent back to Angola. The special considerations referred to in the cases cited do not apply in this case. Furthermore, the Appellant's argument that the RPD erred by not considering the Appellant's circumstances on his own is also not accepted. [48] In relation to reasonableness, the circumstances of the Appellant's parents do need to be taken into account. There is nothing in the Appellant's submissions that addresses the fact that both of the Appellant's parents are educated and thus, although it would be inconvenient to restart their careers, is not sufficient to show undue hardship. [49] I note the argument also made regarding the Appellant's mother's hypertension, but find that this is not a sufficient reason that the family as a whole cannot relocate, and does not address the father's ability to provide income for the family. [50] I do also note that the Appellant has stated that he will have difficulty concentrating in school in Angola and that this is also a barrier to internal relocation. I note that the RPD Member stated that there was no medical evidence before her regarding this and addressing how severe the alleged trauma was. The Appellant is certainly credible in his genuine belief about his condition, but without further evidence on the severity of this condition, I cannot provide sufficient weight to this evidence to show that it is therefore unreasonable for him to internally relocate within Angola. [51] The Appellant did state that in the National Documentation Package (NDP), the United States State Department stated a photojournalist was beaten in Uige by police.26 I find this argument is not convincing as one incident of a photojournalist (which the Appellant is not) being beaten is not sufficient evidence to show Uige as a whole as an unreasonable IFA for the Appellant. [52] The Appellant also stated that there were reports of inter-party altercations in Uige and Huambo. However, the Appellant is not involved in politics, so this situation does not apply to the Appellant. [53] The safety prong of the IFA test appears to have been conceded by the Appellant27 as he is not contesting the RPD's finding on the reach of the gang. The Appellant then moves on to his arguments about the reasonableness prong of the IFA test. [54] Overall, I am not convinced by the Appellant's arguments that Uige or Huambo constitute unreasonable IFAs. I find on a balance of probabilities that the RPD did not err in finding Uige and Huambo to be safe and reasonable IFAs, and uphold its findings accordingly. CONCLUSION [55] After conducting my independent analysis of the entire record, I find that the RPD did not err in its overall finding that the Appellant has a safe and reasonable IFA in both Uige and Huambo. I find that the RPD did not breach procedural fairness, and find that there was no breach of natural justice due to the actions of the RPD Counsel. [56] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "T. Card" T. Card May 7, 2019 Date 1 Exhibit P-2, Appellant's Record, Pages 2-3. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 4 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(g)(iii). 5 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 6 Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 7 Exhibit P-3, Copy of Appellant's allegations against former counsel. 8 Exhibit P-4, Former counsel's written response to the allegations. 9 Exhibit P-5, Appellant's reply to the written response of former counsel. 10 Refugee Appeal Division Rules, SOR/2012-257, Rule 29. 11 Refugee Appeal Division Rules, SOR/2012-257, Rule 29(3). 12 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, S.110(6). 13 Immigration and Refugee Board of Canada, Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guidelines issued by the Chairperson pursuant to s.65(3) of the Immigration Act, Effective Date: 30 September 1996. 14 Exhibit P-2, Appellant's Record, Pages 4-18. 15 Exhibit RPD-1, RPD Record, RPD Reasons, Pages 3-10. 16 Ibid., Exhibit 2, Pages 11-23. 17 Immigration and Refugee Board of Canada, Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guidelines issued by the Chairperson pursuant to s.65(3) of the Immigration Act, Effective Date: 30 September 1996, Part A, Section I. 18 Immigration and Refugee Board of Canada, Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guidelines issued by the Chairperson pursuant to s.65(3) of the Immigration Act, Effective Date: 30 September 1996. 19 Immigration and Refugee Board of Canada. 27 August 2018. Practice Notice - Allegations Against Former Counsel. <https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/allegations-former-counsel.aspx> 20 Exhibit P-3, Copy of Appellant's allegations against former counsel, 6 March 2019. 21 Exhibit P-4, Former counsel's written response to the allegations, 14 March 2019. 22 Exhibit P-5, Appellant's reply to the written response of former counsel, 19 March 2019. 23 Gombos v. Canada (Citizenship and Immigration), 2017 FC 850, Paragraph 17. 24 Elmi v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 7688. 25 Exhibit P-2, Appellant's Record, Page 9. 26 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Angola (30 April 2018), item 2.1. 27 Exhibit P-2, Appellant's Record, Memorandum, Page 7, Paragraph 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01254 RAD.25.02 (April 04, 2019) Disponible en français 13 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 (April 04, 2019) Disponible en français