MB8-09100

RAD File No. / No de dossier de la SAR : MB8-09100 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXXXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision July 15, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Anna Shabotynsky 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 INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX, a Sudanese citizen, presented evidence before the Refugee Protection Division1 (RPD) and stated that he fears his country's authorities by reason of his ethnicity, as well as his and his family's involvement in resistance activities against the Sudanese government.2 [2] The RPD found that the appellant, then referred to as the claimant, was not credible because his testimony was difficult, lacked spontaneity and was marked by serious contradictions and omissions that go to the heart of his refugee protection claim.3 [3] The appellant has submitted evidence and is requesting a hearing. He argues that the audibility of his testimony before the RPD was not adequately resolved, that his previous counsel did not represent him properly, and that he was suffering from psychological trauma at the time but that no procedural accommodations were made during his hearing and, as a result, the RPD breached the principles of natural justice and procedural fairness when it rejected his refugee protection claim.4 The Refugee Appeal Division dismisses the appeal. [4] In my opinion, some of the evidence presented in the appeal is admissible (I); there is no cause to hold a hearing (II); and the principles of natural justice and procedural fairness were respected and the RPD did not err by rejecting the refugee protection claim (III). I. EVIDENCE PRESENTED ON APPEAL [5] I have found that some of the evidence presented in this appeal,5 in particular the complaint against his former counsel and the report written by the psychotherapist, is admissible under subsection 110(4) of the Immigration and Refugee Protection Act6 (IRPA) because, at this point in the proceeding, it appears to me to be credible and includes elements that were not available at the time of the hearing before the RPD or facts that arose after the RPD's decision. [6] As for the other evidence presented on appeal, I have found that it is not admissible under subsection 110(4) of the IRPA.7 [7] First, this evidence does not concern facts that arose after the RPD's decision. [8] Second, I find that this evidence was available at the time of the hearing before the RPD. Although the appellant stated that he had explained that there were errors in his asylum claim in the United States, I find that this does not explain why he did not contact his American lawyer about this matter and present these documents to the RPD. [9] Third, I am of the opinion that these two documents are neither credible nor trustworthy.8 At first glance, they seem to be an attempt to resolve problems in the evidence presented to the RPD. Regarding the electronic correspondence, there is nothing to identify who in fact is the person who is describing herself as having acted as the appellant's lawyer in the United States of America. This person's name does not appear in the asylum claim form that he filed in that country.9 As for the questionnaire, it is not possible to conclude that the appellant did indeed complete and sign this document when he was in the United States of America. II. HOLDING OF A HEARING BEFORE THE REFUGEE APPEAL DIVISION [10] The appellant requested a hearing before the Refugee Appeal Division (RAD).10 However, the onus is on the RAD to determine whether or not the criteria in subsection 110(6) of the IRPA have been met.11 [11] In this appeal, I have found that the evidence found to be admissible does not justify allowing or rejecting the refugee protection claim. Consequently, I have decided not to hold a hearing. III. ANALYSIS OF THE APPEAL [12] The requirements of procedural fairness depend on the nature of the process.12 In refugee protection claims before the RPD, procedural fairness aims to ensure that the person claiming refugee protection understands the proceedings, has a reasonable opportunity to tender any evidence that supports their claim and is given a chance to persuade the RPD that their claim is well founded.13 That said, the RAD's role is not to carry out a de novo consideration of refugee protection claims, but to determine whether, as submitted by the appellant, the RPD erred.14 [13] In applying the correctness standard, and after carrying out my own analysis of the record,15 I find that the principles of natural justice and procedural fairness were respected and that the RPD did not err in rejecting this refugee protection claim. Here is why. A. Criticism against the appellant's former counsel [14] To begin, I must note that it appears to me that this appeal rather corresponds to an application to reopen a claim for refugee protection, as set out in rule 62 of the Refugee Protection Division Rules (RPD Rules). I must also point out that when this case was assigned to me, the appellant's former counsel had not been informed of the criticism against him, which is a requirement of subrule 62(4) of the RPD Rules and section 6 of the Practice Notice - Allegations Against Former Counsel.16 After the appellant's current counsel was informed, she remedied the situation by providing the former counsel with the appeal record, including the criticism against him. [15] On June 10, 2019, the appellant's former counsel responded by stating that he categorically denied all of the appellant's allegations against him. He also forwarded the appellant's complaint filed with the syndic of the Barreau du Québec [Quebec bar], his response and a letter from the syndic dated August 30, 2018, explaining why the complaint was dismissed. He also stated that the syndic decision had not been disputed.17 I have read the documents provided by the appellant's former counsel and, in my opinion, they refute several of the criticisms made by the appellant in his affidavit,18 in his complaint19 and in his memorandum.20 [16] On June 20, 2019, I was informed of an application made the day before, after the appellant's counsel's business hours, seeking an extension of time to reply to the documents from the former counsel. In her application, the appellant's counsel indicates that she received the documents on June 13 and that she needed additional time to discuss them with the appellant and to prepare a reply to the documents from the former counsel.21 The Practice Notice states that a reply must be provided five days after the former counsel's response was received and that it must be accompanied by proof that the reply was first provided to former counsel.22 I noted that the application from the appellant's counsel was made six days after she had received the documents from the former counsel. Nonetheless, I allowed the application, and additional documents were provided, which I have since read,23 In these documents, the appellant argues that he asked the Barreau du Québec to reopen his complaint and he criticizes his former counsel for not having responded to the various arguments he made in his appeal before the RAD. [17] I listened to the recording of the hearing before the RPD. I observed that the appellant's former counsel intervened several times during the hearing not only to help the appellant provide more satisfactory answers to the RPD's questions,24 but also to offer a better translation of some of the statements made by the appellant during his testimony.25 While being respectful to the RPD, the appellant's former counsel then guided the appellant so that his testimony would undermine his credibility as little as possible. [18] The ethical obligations governing the conduct of counsel are essential for the effective operation of the administration of justice.26 In Quebec, they are incorporated into the Code of Professional Conduct of Lawyers.27 There is a strong presumption that the intervenor's conduct falls within the wide range of what is understood to be reasonable professional assistance.28 After reading all the documents on this issue and carrying out my own analysis of it, I find that the appellant did not establish that his former counsel acted incompetently or that he received inadequate representation before the RPD. B. The issue of procedural accommodations [19] On May 23 and 25, 2018, the appellant met with a psychotherapist, who states that the report is based on interviews with the appellant that lasted approximately three hours.29 More specifically, he indicates that the appellant reported problems associated with post-traumatic stress disorder.30 He observed that the appellant was anxious and distressed, which is consistent with the problems he had in Sudan. He also refers to a global report describing the abuse of domestic workers who live in Saudi Arabia.31 Finally, he makes some recommendations, one of which pertains to the appellant's hearing, that is, that the Immigration and Refugee Board of Canada (IRB) make some accommodations for him.32 [20] According to the Chairperson's Guideline 8,33 the IRB has a broad discretion to tailor procedures to meet the particular needs of people with more severe cases of vulnerability. There are various means available to do this. For example, by creating a more informal setting for a hearing, by varying the order of questioning and by explaining IRB processes to the vulnerable person.34 Like all people appearing before the IRB, vulnerable people need to be treated with sensitivity and respect, and they need to have their cases processed taking into account their vulnerability, notably by avoiding re-traumatizing the vulnerable person.35 [21] In this case, it must be noted that the appellant did not present a psychological report in support of his refugee protection claim before the RPD. His former counsel also did not bring the appellant's vulnerability to the RPD's attention, but this does not constitute incompetence. During the hearing before the RPD, there were no suggestions or discussions aimed at identifying the nature of the accommodation measures that could be adopted. In the written statement requesting a hearing before the RAD36 and in the appellant's memorandum,37 no such suggestion is made. [22] While no accommodation measures were formally adopted, I find that, during the hearing before the RPD, both the member seized with the case and the appellant's former counsel acted in a manner that I consider respectful and highly sensitive. [23] Although I am not a psychologist, I find that, during the hearing, the appellant's behaviour did not suggest that he should be identified as a vulnerable person within the meaning of the Chairperson's Guideline 8. [24] Regardless, the questions asked by the member and his former counsel took into account his difficulties in presenting his testimony. For example, regarding the appellant's statements about the associations he belonged to-statements that differed at various points of the proceeding-the member and the appellant's former counsel asked numerous questions, taking the necessary time to clearly explain the problem.38 The same is true regarding his father's alleged persecution in Sudan39 and the appellant's reasons for returning to Sudan in 2014, when he had a residence permit and was working in Saudi Arabia,40 as well as the differences between the account presented with the asylum claim made in the United States of America and the one presented with the refugee protection claim made in Canada41 and regarding his failure to mention in his BOC Form the fact that, since his departure, his family has allegedly received threats, including by letter.42 [25] In my opinion, while procedural accommodations were not formally adopted during the hearing before the RPD, the hearing was conducted in a respectful and highly sensitive manner, without causing him trauma. Moreover, I find that the appellant did not establish that the RPD's decision would have been different if procedural accommodations had been formally adopted during the hearing. C. Difficulties because of the appellant's inaudible testimony [26] In his memorandum, the appellant argues that most of his testimony was inaudible, which prevents him from proving that interpretation errors were made during the hearing before the RPD, thus resulting in a breach of procedural fairness.43 After listening to the recording of the hearing, I conclude that this argument is simply not founded. While it is true that the appellant was asked to speak a little louder to ensure that his testimony was recorded,44 the fact remains that his testimony was indeed recorded. If the appellant wanted to identify interpretation errors during the hearing before the RPD, he had every opportunity to do so. D. Difficulties caused by interpretation [27] In his memorandum, the appellant also argues that, during the hearing, the interpreter did not know French and Sudanese Arabic well enough to carry out his task.45 I find that this argument is unfounded. [28] The right to the assistance of an interpreter is constitutionally protected under section 14 of the Canadian Charter of Rights and Freedoms. That said, the translation provided by the interpreter need not be perfect, but it must be adequate, which means that the person claiming refugee protection was able to benefit from precise, continuous, competent, impartial and contemporaneous interpretation and that they did not waive their right to the assistance of an interpreter.46 [29] As I indicated above, I listened to the recording of the hearing before the RPD. It is true that the interpreter occasionally took some time before translating or provided a translation that was then confirmed or corrected by the appellant's former counsel.47 However, I find that these difficulties were fleeting, did not hinder his ability to respond to the questions he was asked, and did not play a serious role in the assessment of his credibility. Consequently, on this matter, there was no breach of the principles of procedural fairness.48 E. The appellant's credibility was seriously undermined [30] When they swear to the truth of certain allegations, refugee protection claimants are presumed to tell the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for the inconsistencies.49 The RPD may draw negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed, and RPD members may use their common sense and human experience.50 [31] In his memorandum, the appellant submits that the RPD did not give him the benefit of the doubt, even when he gave reasonable explanations. He also submits that the explanations were clear on reading the record and that several problems that were identified concerned other people, such as the interpreters or his former counsels in the United States of America and Canada.51 [32] With all due respect, these arguments are unfounded. [33] To begin, the benefit of the doubt can be given when testimony, taken as a whole, is considered by the RPD to be coherent and plausible.52 Based on my independent analysis of the record, including listening to the recording of the hearing, it is absolutely impossible to find that the appellant's testimony before the RPD was coherent and plausible. [34] Furthermore, the explanations given to the RAD about the problems caused by the interpreters and the appellant's former counsels are essentially the same ones that the appellant himself gave to the RPD throughout his testimony. In its decision, the RPD analyzed these explanations but rejected them because it found that the contradictions and omissions that were identified undermined his credibility.53 According to my own analysis, the RPD clearly relied on the evidence on the record, including, of course, the appellant's testimony, and so it did not err. [35] Finally, regarding the documentary evidence, the appellant argues that the RPD erred by relying on the previous findings relating to his credibility to discredit the supporting letters that he presented to the RPD.54 [36] Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof.55 According to the case law, a decision-maker may reach a conclusion regarding the weight to be granted to a document after having assessed credibility or probative value or both.56 Moreover, it is open to the RPD not to give weight or probative value to assessments or reports based on underlying elements found not to be credible.57 Lastly, evidence is not assessed in isolation from the overall claim for refugee protection. Where the claimant's personal testimony is not credible, it is reasonable for the RPD to have credibility concerns with the documentary evidence submitted to support the claim, and the RPD may give it only minimal weight.58 However, it is wrong to ignore the evidence and protect itself by declaring that the evidence was not credible simply because the appellant was not credible.59 [37] The RPD considered all the evidence and took care to explain why it was not giving any probative value to the supporting letters filed as evidence before it.60 It also found that the letters could not make up for the shortcomings in the appellant's testimony.61 I would add that, during the hearing, the appellant was urged to explain why these letters did not mention the fact that his activities had caused serious problems for him in Sudan. He responded that all of these associations were aware, but that they avoided making names public out of fear that the member concerned would be arrested when they returned to Sudan. Asked to explain how a letter from a Nubian association in Saudi Arabia that is addressed to him in Canada and that mentions that he was persecuted in Sudan could put him in danger, the appellant stated that what it mentions is his membership in the association but that it does not give all the details.62 In my opinion, that explanation is not acceptable. According to my own analysis of the record, I find that it was open to the RPD not to give any probative value to these supporting letters and, accordingly, I find that it did not err. CONCLUSION [38] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX is not a refugee under section 96 or a person in need of protection under section 97 of the IRPA. [39] The appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette July 15, 2019 Date IRB translation Original language: French 1 These documents are reproduced at pages 93 to 186 of the Refugee Protection Division (RPD) record. 2 Basis of Claim Form (BOC Form), including amendments, pages 35 to 56 of the RPD record. 3 RPD reasons and decision, March 29, 2018: French version, pages 3 to 13 of the RPD record, English version, pages 14 to 24. 4 Appellant's memorandum, July 9, 2018, pages 95 to 124 of the appeal record. 5 A-1: Appellant's sworn statement dated June 12, 2018, reproduced at pages 30 to 37 of the appeal record; A-2: Complaint against the former counsel, reproduced at pages 62 and 63 of the appeal record; A-3: Report from psychotherapist XXXX dated June 28, 2018, reproduced at pages 71 to 78 of the appeal record. 6 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 7 Electronic correspondence with the appellant's lawyer in the United States of America and the questionnaire he completed in that country, reproduced at pages 64 to 70 of the appeal record. 8 Singh, supra, endnote 6, paragraphs 38, 43 and 44. Belek v. Canada (Minister of Citizenship and Immigration), No. IMM-3459-16, Diner, February 16, 2017; 2017 FC 196, paragraphs 11 to 19. Tuncdemir v. Canada (Minister of Citizenship and Immigration), No. IMM-808-16, Gagné, August 31, 2016; 2016 FC 993, paragraphs 35 and 36. Issa v. Canada (Minister of Citizenship and Immigration), No. IMM-72-16, Annis, July 14, 2016; 2016 FC 807, paragraphs 18, 19 and 20. 9 This form is reproduced at pages 176 to 186 of the RPD record. 10 Written statement, page 24 of the appeal record. 11 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 12 Toussaint v. Canada (Minister of Citizenship and Immigration), No. IMM-463-18, Roussel, March 5, 2019; 2019 FC 267; 2019 FC 264, paragraph 7. Tesfagaber v. Canada (Minister of Citizenship and Immigration), No. IMM-3957-17, Pentney, October 3, 2018; 2018 FC 988, paragraph 17. 13 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCTD 590, paragraph 10. 14 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 15 Notably by listening to the recording of the hearing held on March 27, 2018, before the RPD, 00:01 to 03:13:50. 16 Practice Notice - Allegations Against Former Counsel, effective August 27, 2018. The Practice Notice is available on the IRB's website. 17 Letter from XXXX, June 10, 2019. 18 A-1: Appellant's affidavit, June 12, 2018, paragraphs 8 to 16, pages 32 to 35 of the appeal record. 19 A-2: This complaint is reproduced at page 62 of the appeal record. 20 Appellant's memorandum, paragraphs 18 to 43, pages 101 to 108 of the appeal record. 21 Letter from XXXX, June 19, 2019, 1 page. 22 Practice Notice, supra, endnote 16, section 9. 23 Reply to Correspondence of Previous Counsel, June 26, 2019, 16 pages. 24 For example: Recording of the hearing, 52:00 to 53:00, about the American lawyer; 59:00 to 59:30, about information not included in the initial BOC Form; 01:07:30 to 01:08:30, about the different information in the immigration documents concerning the associations of which the appellant is a member or supporter; 01:43:15 to 01:43:30, about his failure to mention in his BOC Form that he had paid a bribe to an acquaintance of his father in 2014 in order to enter Sudan. 25 For example, regarding when the appellant's father was arrested, recording of the hearing, 01:30:30 to 01:31:00. 26 Haile v. Canada (Minister of Citizenship and Immigration), No. IMM-4822-17, Elliott, April 29, 2019; 2019 FC 538, paragraphs 80 to 84. 27 This code is available on the website of the Barreau du Québec: http://legisquebec.gouv.qc.ca/en/pdf/cr/B-1,%20R.%203.1.pdf. 28 Pacheco v. Canada (Minister of Citizenship and Immigration), No. IMM-933-17, Locke, June 13, 2017; 2018 FC 617, paragraphs 26, 27 and 28. 29 A-3: Report from psychotherapist XXXX, June 28, 2018, page 72 of the appeal record. 30 Ibid., pages 75 and 76 of the appeal record. 31 Ibid., page 74 of the appeal record. 32 Ibid., page 76 of the appeal record. 33 Chairperson's Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB, effective December 15, 2006, amended on December 15, 2012. 34 Ibid., sections 2, 3 and 4. 35 Ibid., sections 1.5 and 10.1. 36 Written statement, page 24 of the appeal record. 37 Appellant's memorandum, paragraphs 61 to 68, pages 112, 113 and 114 of the appeal record. 38 Recording of the hearing, 55:35 to 01:13:35. 39 Ibid., 01:24:15 to 01:34:35. 40 Ibid., 01:36:25 to 01:38:45. 41 Ibid., 01:56:25 to 02:14:15. 42 Ibid., 02:17:00 to 02:27:20. 43 Appellant's memorandum, paragraphs 12 to 17, pages 100 and 101 of the appeal record. 44 Recording of the hearing, 30:30 to 31:00. 45 Appellant's memorandum, paragraph 79, pages 116 and 117 of the appeal record. 46 Bouanga v. Canada (Minister of Citizenship and Immigration), No. IMM-1017-14, Martineau, October 30, 2014; 2014 FC 1029, paragraphs 8 and 9. Also read Batres v. Canada (Minister of Citizenship and Immigration), No. IMM-11896-12, McVeigh, September 25, 2013; 2013 FC 981, paragraphs 14 to 22. 47 Recording of the hearing, 01:30:30 to 01:31:00; 01:36:30 to 01:38:05; 01:48:00 to 01:48:40; and 02:15:30 to 02:16:10. 48 Defaite v. Canada (Minister of Citizenship and Immigration), No. IMM-4015-18, Lafrenière, May 8, 2019; 2019 FC 620, paragraphs 14 and 15. 49 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 50 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 51 Appellant's memorandum, paragraphs 69 to 96, pages 114 to 121 of the appeal record. 52 Gebrewold, continued, endnote 14, paragraph 28. 53 RPD reasons and decision, paragraphs 13 to 40, pages 6 to 12 of the RPD record. 54 Appellant's memorandum, paragraphs 102 to 109, pages 122, 123 and 124 of the appeal record. 55 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraph 21. 56 Ibid., paragraphs 27 to 31. 57 Lawani, supra, endnote 7, paragraph 24. 58 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. 59 Geneus v. Canada (Minister of Citizenship and Immigration), No. IMM-4065-18, Bell, March 5, 2019; 2019 FC 264; 2019 FC 264, paragraph 10. 60 These supporting letters are reproduced at pages 93 to 105 of the RPD record. 61 RPD reasons and decision, paragraphs 32 to 37, pages 10 and 11 of the RPD record. 62 Recording of the hearing, 01:13:35 to 01:18:10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-09100 RAD.25.02 (April 4, 2019) Disponible en français 11 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 4, 2019) Disponible en français