MB9-14598

RAD File No. / N° de dossier de la SAR : MB9-14598 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision August 5, 2020 Date de la décision Panel Marie-Lyne Thibault Tribunal Counsel for the person who is the subject of the appeal Me Herve Ndedi Penda 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] XXXX XXXX XXXX XXXX XXXX (the appellant) is a citizen of Haiti. [2] She fears a risk to her life from the political party in power, the Tet Kale, if she returned to Haiti. [3] She is appealing the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim. She argues that the RPD erred by failing to correctly apply the Refugee Protection Division Rules (the Rules) with regard to her counsel's request to be removed. Alternatively, she argues that the RPD breached procedural fairness by proceeding with the hearing when she was no longer represented by counsel. [4] For the reasons below, the Refugee Appeal Division (RAD) concludes that the RPD's decision is correct. The appellant failed to demonstrate the existence of a breach of procedural fairness. [5] The appeal is dismissed. ANALYSIS [6] The RAD conducted an independent review of the evidence, including listening to the recording of the hearing. The RAD applied the correctness standard of review.1 The appellant had a fair hearing [7] The RAD concludes that the appellant failed to establish that her allegation of a breach of procedural fairness is founded. [8] The appellant argues that the RPD's failure to ensure that counsel's request to be removed was made in accordance with subrules 15(1) and 15(2) of the Rules is an error that justifies allowing her appeal and returning her file to the RPD. She adds that if the RAD rejects this argument, the RAD should conclude that, by failing to postpone the hearing to allow her to find new counsel, the RPD breached procedural fairness. [9] The RAD accepts that the appellant might have been taken by surprise at her hearing before the RPD when her counsel requested that the RPD accept his request to be removed as counsel of record. The appropriate response to this issue was to allow the appellant to postpone the hearing to a later date to give her the time to find new counsel. The RPD gave the appellant this opportunity. The RPD explained to her that she had the right to be represented by counsel and suggested a date when the hearing could be held.2 However, the associate refugee protection claimant, who is not the appellant in this case, asked the RPD why the hearing could not be held as planned. The RPD then explained again the right to counsel and suggested a break to give the claimants the chance to think about whether they really wanted to move forward without counsel.3 After the break, the appellant stated that she wanted to proceed with the hearing.4 The RPD then validated the understanding of the right to counsel with the appellant.She confirmed that she understood and repeated that she wanted to proceed without a lawyer.5 [10] The RAD is of the opinion that the facts in this case are different from those in Aiyathurai v. Canada (Citizenship and Immigration), 2018 FC 1278 (Aiyathurai), to which the appellant refers. In Aiyathurai, the Federal Court concluded that the refugee protection claimant did not have the right to a fair hearing because his counsel did not represent him appropriately. The Federal Court also mentions that the refugee protection claimant's situation was worse than if he had not been represented by counsel because he thought that he would be represented even though, in reality, he was not. In this case, the appellant knew that she was no longer represented by counsel. After some reflection and despite the opportunity to request that the hearing be postponed, she chose to proceed without counsel. On one hand, the right to counsel is not an absolute right. On the other hand, independent of the fact that her counsel had requested that the RPD grant a postponement if the RPD accepted his removal as counsel of record, the appellant had the right to choose to move forward without counsel. The RPD did not place any pressure on her to force her to move forward. [11] In light of the foregoing, the RAD concludes that the appellant failed to demonstrate that she was not given the right to a fair hearing. Undisputed conclusions [12] It should be noted that the appellant is not disputing the RPD's finding that her credibility was undermined with regard to her written account because of major contradictions and omissions. Furthermore, she is not disputing the RPD's conclusion that she failed to demonstrate that she has the profile described in the case law in terms of single women in Haiti who risk gender-based persecution. [13] Moreover, the RAD does not note any error in these conclusions. [14] Consequently, the RAD concludes that the RPD's decision is correct. The appellant failed to establish a serious possibility of persecution under one of the five Convention grounds or demonstrate, on a balance of probabilities, that if she returned to Haiti, she would be personally subjected to torture, a risk to her life, or to a risk of cruel and unusual treatment or punishment in accordance with subsection 97(1) of the Immigration and Refugee Protection Act. CONCLUSION [15] The RAD dismisses the appeal. The RAD confirms the determination of the RPD. The RAD determines that XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA, or a "person in need of protection" pursuant to subsection 97(1) of the IRPA. Marie-Lyne Thibault Marie-Lyne Thibault August 5, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Recording of the Refugee Protection Division hearing held on April 18, 2019, at approximately 00:05:52. 3 Ibid., at approximately 00:07:40. 4 Ibid., at approximately 00:09:35. 5 Ibid., at approximately 00:10:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB9-14598 RAD.25.02 (January 2020) Disponible en français 5 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