TB6-02570

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 : TB6-02570 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 31, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Chelsea Peterdy Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), who is a citizen of Hungary, is appealing the decision of the Refugee Protection Division, denying her claim for refugee protection. She has submitted new evidence in support of her appeal and she is requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is also asking the RAD to substitute a positive determination, or in the alternative, to remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to section 111(1)(c) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant is a 64 year old Roma from Hungary. In her Basis of Claim (BOC) Form, she states that racism in Hungary has grown against Roma people. She fears violent racist groups such as the Guardists. ROLE OF RAD [4] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides us with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [5] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [6] The following new evidence has been submitted: * Photographs depicting injuries to the Appellant's face and head;2 * Medical Reports dated XXXX XXXX, 2015 and XXXX XXXX, 2015;3 * Letter from XXXX XXXX dated XXXX XXXX, 20164 - which post-dates the rejection of the claim on January 29, 2016; * Summons to act as a witness in a criminal case dated XXXX XXXX, 2015 to appear on XXXX XXXX, 2015.5 [7] The Appellant submits that notwithstanding the RPD's reasons, men had attempted to force her to give them oral sex; however, she acknowledges that she did not disclose all the details at the RPD hearing. [8] The Appellant also submits that she was physically assaulted in XXXX 2015 by a group of men; however, she had been given a cigarette which was laced with marijuana. The Appellant alleges that she informed her former counsel of these attacks, and showed him the medical report and photographs. However, counsel decided not to submit these documents as the reports showed cannabis in her system. [9] The Appellant also submits that she sustained a further attack around the XXXX of 2015, in which she was punched in the face by a man from her village - XXXX XXXX. This incident involved the Appellant's dog as well, and when she told the perpetrator to stop kicking her dog, she was punched in the face, breaking her nose, requiring medical intervention. Furthermore, she was summoned to appear at the trial as a witness and testified against XXXX XXXX, who was found guilty. With respect to this incident, the Appellant alleges that she was fearful of telling her former counsel in case XXXX XXXX somehow found out where she was residing. [10] With respect to this latter incident, the RAD finds that the Appellant's reason for not telling her counsel about this incident is without merit. It simply does not make sense that the Appellant would fear that this perpetrator would locate her in Canada, and therefore, the RAD does not accept the Appellant's explanation for not disclosing this incident to her former counsel. [11] With respect to the evidence post-dating the rejection of the claim, the Appellant was notified by her neighbours that a group of men came looking for her at her home, and they killed her neighbour's dog as a warning. Although the Appellant is unaware of the identification of the perpetrator, she is fearful that they are connected to XXXX XXXX and they are seeking revenge as she testified against him. [12] Although this new evidence meets the statutory requirements of ss. 110(4) of the IRPA, in that this incident occurred following the rejection of her claim, the RAD finds that the Appellant's fears are purely based on speculation and conjecture. [13] Counsel for the Appellant submits that the new evidence speaks to the issue of "discrimination vs. persecution". It is argued that the Appellant's former counsel did not take her seriously as to how marijuana got into her system. Moreover, he told her that a lot of people from Hungary say that they are physically attacked, and these were allegedly the reasons for not submitting the foregoing evidence before the RPD. PROCEDURAL FAIRNESS [14] Counsel for the Appellant submits that nonfeasance on the part of the Appellant constitutes a breach of procedural fairness. [15] It is submitted that the quality of former counsel's representation is called into question when one reviews the BOC submitted by the Appellant in support of her claim. It is argued that her former counsel reviewed the forms; however, they were never translated back to her in Hungarian nor were any amendments made to provide a full and detailed narrative. [16] Upon review of the audio recording of the proceedings, the RAD finds that the RPD stated at the outset of the hearing that the BOC had been interpreted to the Appellant and the contents were complete, true and accurate. She then asked if that were true today, to which the Appellant responded "yes". The RAD finds that it was at this juncture, if either the Appellant or her counsel had a problem with the contents of the BOC or its translation, that was the time to so indicate. The RAD finds, therefore, that there was no breach in this regard. In terms of an amendment to the BOC, the RAD is not in a position to know what further incidents would have been included, in light of documents that were not submitted to the RPD. [17] On February 22, 2016, current counsel sent an urgent letter by fax to the Appellant's former counsel requesting the Appellant's complete immigration file. 6 [18] On February 26, 2016, current counsel sent a letter by fax to former counsel regarding the medical documentation and photographs the Appellant had provided to current counsel, which were not submitted to the RPD. 7 [19] On March 2, 2016, a staff member from former counsel's office left current counsel a voicemail notifying her that the Appellant's file was ready to be picked up. Included in the file were the medical reports and photographs of the appellant with injuries to her face and head that the Appellant had provided to her former counsel but were not submitted to the RPD, nor were they referenced in the RPD's decision and reasons. [20] On March 4, 2016, the current counsel advises that she telephoned former counsel's office and spoke to a staff member to follow-up with her request for a list of the exhibits and an index of the personal supporting documents. To date this request has not been acted upon. [21] In light of the conduct of the Appellant's former counsel, it is submitted that there is a reasonable probability that, but for this alleged incompetence, the result of the original hearing would have been different, and that former counsel's nonfeasance, in terms of medical documents and photographs, constitutes a breach of procedural fairness in the circumstances. RAD'S CONCLUSION [22] The RAD concurs with the Appellant that the absence of this documentary evidence constitutes a breach of procedural fairness in the circumstances. Since the former counsel has forwarded this evidence as having been received for the purpose of the RPD hearing, and yet did not disclose it, the RAD finds that this constitutes a denial of natural justice as the Appellant was unable to present evidence which she believed was relevant. Although the index of documents has to date not been received from former counsel, the RAD finds that the mere fact that the "new" evidence was not a part of the RPD file, is sufficient for the RAD to make this finding. Disposition [23] The Appellant asks the RAD to quash the decision of the RPD and substitute a positive determination, or in the alternative to return the matter for a new hearing pursuant to section 111(1)(c) of the IRPA. Section 111 of the IRPA allows the RAD to refer a matter back to the RPD only if it is wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm the determination or to substitute another determination without hearing evidence that was presented to the RPD. The RAD finds that the RPD's decision in this matter was wrong in law, as former counsel's actions led to a denial of natural justice for the Appellant. The RAD cannot confirm the RPD's decision and must either substitute its own determination or refer the matter back to the RPD. [24] In order to make its own determination, it would be necessary for the RAD to convene an oral hearing, as the Appellant's first hearing was tainted by procedural unfairness, and there is thus insufficient evidence upon which the RAD could base its own determination. It is clear from section 110(3) of the IRPA that RAD oral hearings are to be the exception, as the RAD "must proceed on the basis of the record of the proceedings of the Refugee Protection Division....."8 Section 110(6) gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.9 The Appellant has submitted new evidence which might indeed meet such requirements. It would, however, be difficult or impossible to restrict an oral hearing to such evidence. In effect, an oral hearing would become a de novo proceeding, as the RAD cannot rely upon much of the evidence from the RPD hearing, it would be necessary for the RAD to rehear most or the entire refugee claim, not just the portion relating to the new evidence. [25] Upon review of the audio recording of the proceedings, the RAD finds that the Appellant herself testified that she had not sustained any assaults. Accordingly, the RPD asked the Appellant if her basic human rights had been denied, i.e. housing, education, social services, medical requirements, and found that although not perfect, the Appellant's claim was based on "discrimination", as opposed to "persecution". [26] In the RAD's view, the IRPA does not support the de novo hearing of a refugee claim by the RAD. The legislation requires the RAD to proceed without a hearing,10 allows an exception where there is new evidence,11 and prohibits the RAD from rehearing evidence that was presented to the RPD.12 These provisions are simply not consistent with the rehearing of an entire refugee claim by the RAD. [27] The RAD cannot substitute its own determination for that of the RPD and, therefore, refers this matter back to the Refugee Protection Division with the following directions.13 While it was not necessary for the RAD to admit the Appellant's new evidence relating to her refugee claim, the Appellant may submit these documents, pursuant to the RPD Rules, for the de novo hearing of her claim. The RPD is not to consider or admit the transcript of the first RPD hearing, but may question the Appellant on any aspect of her refugee claim, including the anomalies in her evidence noted above. The RAD concludes that in order to make a determination on this claim, it would be necessary to test the credibility of the evidence which was withheld by the former counsel, and examine the issues of state protection and internal flight alternative before reaching its conclusion. [28] For the reasons provided above, the RAD allows this appeal and sets aside the decision of the RPD. Pursuant to section 111(1)(c) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara May 31, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, pp. 17-18. 3 Ibid., pp. 19-28. 4 Ibid., pp. 33-35. 5 Ibid., pp. 30-31. 6 Exhibit P-2, Appellant's Record, p. 39. 7 Ibid., pp. 41-42. 8 IRPA, section 110(3). 9 IRPA, section 110(6). 10 IRPA, section 110(3). 11 IRPA, section 110(6). 12 IRPA, section 111(2)(b). 13 IRPA, section 111(1)(c). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-02570