Date: 20101126
Docket: IMM-1091-10
Citation:
2010 FC 1196
Ottawa, Ontario, November 26, 2010
PRESENT: The
Honourable Mr. Justice Crampton
BETWEEN:
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AREF MEMARI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Aref Memari is a citizen of Iran. He is of Sunni Kurdish ethnicity. He
claims to have fled Iran to escape torture and persecution that he
experienced at the hands of the Iranian government because of his political
beliefs and activities. He arrived in Canada in May 2007 and claimed
refugee protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
In
February 2010, the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”) rejected his claim for refugee protection.
[3]
The
Applicant seeks to have the decision set aside on the basis that:
i.
the
principles of natural justice were breached as a result of his former counsel’s
incompetence;
ii.
comments
made by the Board subsequent to its decision gave rise to a reasonable
apprehension of bias; and
iii.
the
Board’s analysis of the evidence was unreasonable.
[4]
For
the reasons that follow, this application is allowed.
I. Background
[5]
In
an addendum to the personal information form (PIF) filed in support of his
application for refugee status, the Applicant states that he was politically
involved with a clandestine student group that defended Kurdish rights and
advocated an end to the discrimination and persecution of Kurds. In 1996, after
students and local teachers at the University of Sanandaj were
humiliated and persecuted for being Kurds and Sunnis, he became seriously
involved with that group. Among other things, the group distributed flyers,
held meetings on a clandestine basis and held peaceful rallies. The Applicant
also was a supporter of the leftist Hekmatiye political movement.
[6]
After
an Iranian Kurd was arrested and killed by Iranian security forces in 2005, the
Applicant participated in a peaceful protest. He claims that this protest was
raided and that he was arrested. He further claims that he was then detained,
beaten, lashed on numerous occasions and interrogated for 15 days, before being
released five days later.
[7]
He
claims that he did not return to his political activity until after the Nowrooz
(Iranian New Year) holiday in 2006, when he was asked by one of the members of
the student group to attend a meeting and speak about his experience. He
renewed his involvement with the group and began photocopying flyers that were
distributed by other members of the group.
[8]
The
Applicant claims that he was then arrested a second time, on January 15, 2007.
He states that he was again beaten, seriously tortured and interrogated about
his activities. After being detained for over two weeks, he was forced to sign
an undertaking stating that he would not tell anyone about his detention and was
threatened with death if he violated this undertaking.
[9]
The
Applicant claims that a few weeks later, on February 4, 2007, he was taken to
the outskirts of the city and left there. He states that he immediately went
into hiding for three nights until he could meet with a smuggler. He spent five
days hiding with the smuggler before departing for Turkey on February
11, 2007. He stayed in Turkey until he departed for Canada, where he
arrived on May 22, 2007.
[10]
Since
fleeing Iran, the Applicant
claims that his house has been raided and that his parents, brother, wife and
neighbours have been interrogated. In addition, his wife was dismissed from her
job, was forced to sign an undertaking stating that she would report the
Applicant, and has been required to report to the Sepah (a branch of Iran’s military) every
other month.
[11]
In
his PIF, the Applicant added that that his family was opposed to the revolution
in Iran, that their home was raided and searched, and that his father was
arrested and detained in an undisclosed location for four months, where he was severely
tortured. He was finally released when the Applicant’s mother posted the deed
to her property as bond. Due to the injuries he suffered as a result of his
torture, he has been unable to work since that time. In addition, he was
dismissed from the military and is prohibited from leaving the country.
II. The
Decision under Review
[12]
At
the outset of its decision, the Board identified the Applicant’s credibility as
the determinative issue in its decision.
[13]
Before
addressing the substance of the Applicant’s claim, and after acknowledging that
the Applicant’s counsel at the time, Ms. Anita Leggett, was known to the Board
as a capable and conscientious refugee lawyer, the Board noted that there were “issues
with her performance.” The Board noted that the hearing was originally
scheduled for November 24, 2009, but was adjourned to January 27, 2010 because
Ms. Leggett submitted a revised narrative on the morning of the hearing. The
Board noted that the document was dated March 2009. It also noted that Ms.
Leggett took responsibility for this late submission, “citing both illness and
simply not getting around to it.”
[14]
The
Board then observed that, at the hearing on January 27, 2010, Ms. Leggett indicated
that she was ill and had not been feeling well. The Board also noted that she submitted
at that time a detailed psychological report that she claimed to have just
received.
[15]
The
Board then noted that once the hearing commenced and an issue arose about the
Applicant’s claimed dates of detention in Iran, Ms. Leggett
approached the Panel and showed the Panel her copy of the PIF, on which she had
marked some different dates than what appeared in the document. At that time,
she claimed that she had intended to amend the PIF before the hearing, but
forgot, due to her illness.
[16]
The
Board further noted that Ms. Leggett subsequently volunteered that she had not
provided adequate representation for the Applicant, and that she had apologized.
The Board stated that the Applicant would not be penalized for any alleged
errors made by Ms. Leggett. It added that it had been very careful to fairly
consider the implications of such alleged errors. However, it maintained that
there was still insufficient credible evidence to justify a positive
determination.
[17]
The
Board then addressed various inconsistencies that it found in the Applicant’s
evidence. It stated that, cumulatively, those inconsistencies and one
significant implausibility led it to conclude that the Applicant’s evidence, on
the whole, was not credible.
[18]
The
first inconsistency identified by the Board concerned the number of times the
Applicant claimed to have been detained. The Board noted that in his PIF and in
his testimony, the Applicant stated that he had been detained twice. However,
the Board noted that in a Declaration that he signed at his port of entry, he
only mentioned one detention. The Board did not accept the Applicant’s
explanations that (i) he was told by the immigration officer at the port of
entry to keep his story short, and (ii) the proximate cause of his departure
from Iran was his second detention.
Instead, it concluded that his claim to having been detained on another
occasion was an embellishment. It therefore made a negative inference as to his
credibility.
[19]
The
second inconsistency identified by the Board related to the difficulties that the
Applicant claimed to have had with the interpreter during his point of entry
interview. The Applicant alleged at the hearing that he had difficulties
understanding the interpreter on several occasions because (i) the interpreter
was Afghani, who speaks Dari (which is similar to Farsi) and Iranians (who
speak Farsi) don’t understand much of the terminology used by Afganis, and (ii)
the interpreter was interpreting over a speaker telephone that did not transmit
clearly. The Applicant further claimed to have requested a Kurdish interpreter,
but was told that none was available, and claimed to have requested that
various questions posed during the interview be repeated several times.
[20]
The
Board rejected the Applicant’s claims after noting that:
·
the
Officer told the Applicant to let him know if a question was unclear or if he
did not understand, and the Applicant did not do so;
·
there
was no record in the interview notes of the Applicant having complained about
the interpretation, having requested that questions be repeated, or having
requested a Kurdish interpreter;
·
at
the end of his Declaration, the Applicant thanked immigration personnel for
their help and did not express any complaints about the interview process;
·
the
Applicant signed the written record of the interview, to confirm that what was
contained therein was true;
·
the
interpreter had signed a declaration stating that he had interpreted the
contents of that record to the Applicant and the Applicant had informed him that
he had he understood that record;
·
the
Applicant indicated at the hearing that he is just as fluent in Farsi as he is
in Kurdish, and requested a Farsi, rather than a Kurdish, interpreter;
·
the
Applicant’s Declaration was done free-hand with no interpretation, and was done
in Farsi; and
·
as a
university graduate, the Applicant would not have simply signed a form because
he was told to do so, and an immigration officer would not have requested him
to sign something that he knew or ought to have known not to be true, since there
is a presumption that CIC deals fairly that was not rebutted.
[21]
The
third inconsistency was identified as involving the dates of the Applicant’s
first detention. The
Board noted that there were differences between the Applicant’s testimony and
his PIF on this matter. In his testimony, the Board stated that he identified
those dates to be August 3, 2005 to August 24, 2005, and that when he was asked
if he was sure about those dates, he replied in the affirmative. However, in
his PIF, the Board stated that the dates of his first detention were identified
as being from September 3, 2005 to October 3, 2005.
[22]
The
Board observed that, at the beginning of the hearing, he had sworn to the
accuracy of his PIF, yet he alleged later in the hearing that it was not accurate
in this respect. It then
noted that he suggested that the interpreter at Ms. Leggett’s office may have copied
the dates from the interview record. The Board did not accept this explanation
because there was nothing in the interview record indicating that he had been
detained on the dates set forth in his PIF (September 3, 2005 to October 3,
2005), and thus the interpreter at Ms. Leggett’s office could not have copied
the dates wrong.
[23]
The
Board also noted that Ms. Leggett had showed the Panel her copy of the PIF,
which appeared to indicate some changes in pen or pencil. The Board observed
that Ms. Leggett had indicated that this was evidence that she had intended to
change that section of the PIF before the Applicant swore to it at the hearing,
but she forgot to do so due to her illness. The Board acknowledged that Ms.
Leggett correctly indicated that the revised narrative set forth in the
addendum to the Applicant’s PIF indicated that the Applicant was arrested on
August 3, 2005.
[24]
However,
the Board found that the fact that the Applicant, apparently incorrectly,
blamed this on the interpreter and also, apparently incorrectly, indicated that
the interpreter had taken the wrong information from the interview record,
would tend to indicate that his explanations should not be accepted. The Board
therefore made a negative inference as to credibility, although it noted that
this was partially mitigated by Ms. Leggett’s explanation.
[25]
The
fourth inconsistency concerned the dates of the Applicant’s alleged second
detention. The Board noted that the dates set forth in the interview record and
the Applicant’s PIF were different. In the interview record, the dates were
stated to be October 25, 2006 to November 15, 2006. However, in his PIF, the Applicant
stated that he was released from custody, and escaped from Iran, in February 2007.
[26]
When
asked to explain the apparent inconsistency, the Applicant claimed that they resulted
from errors made by the interpreter in converting the Persian calendar to the Gregorian
calendar. Since the Board did not accept the Applicant’s allegations regarding
poor interpretation at the interview, the Board did not accept this
explanation.
[27]
The
fifth “inconsistency” concerned the Applicant’s response to a question
regarding the location where Mansour Hekmat, the head of the party the
Applicant claimed to support, died. The Applicant stated that he died in Iran or Iraq. It was only after the
Applicant was asked how the leader of an anti-regime party would be allowed to
live in Iran that the Applicant corrected himself and stated that he died in London. The Board found that
this indicated that the Applicant had little knowledge of the party he claimed
to support. It therefore made a further negative inference regarding the
Applicant’s credibility.
[28]
Finally,
the Board found a significant implausibility in the Applicant’s claim. The
Applicant indicated that although his wife has been interrogated frequently
since he left, she had not disclosed to the authorities that he had fled to Canada. The Board found it
implausible that the Applicant’s wife would not have been forced to reveal this
fact, particularly if the regime were targeting the Applicant to the extent
that he claimed.
[29]
Based
on the foregoing, the
Board concluded that the Applicant’s evidence was, on the whole, not credible.
Accordingly, it found that he would not face a risk contemplated by sections 96
or 97 of the IRPA.
III. Standard
of review
[30]
The
issues of procedural fairness and natural justice raised by the Applicant are
reviewable on a standard of correctness (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 55, 60 and 79; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339, at para. 43).
[31]
The
issue regarding the Board’s analysis of the evidence is reviewable on a
standard of reasonableness (Dunsmuir, above, at paras. 51-56).
IV. Analysis
A.
Were
the principles of natural justice breached as a result of his former counsel’s
incompetence?
[32]
The
Applicant submits that the principles of natural justice were breached as a
result of Ms. Leggett’s incompetence in representing him. I agree.
[33]
In
R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26, the Supreme
Court of Canada stated that for this ground of challenge to succeed, “it must
be established, first, that counsel’s acts or omissions constituted
incompetence and second, that a miscarriage of justice resulted.” The Court
elaborated as follows:
27 Incompetence is determined by a reasonableness standard.
The analysis proceeds upon a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance. The onus is on the
appellant to establish the acts or omissions of counsel that are alleged not to
have been the result of reasonable professional judgment. The wisdom of
hindsight has no place in this assessment.
28 Miscarriages of justice may take many forms in this
context. In some instances, counsel’s performance may have resulted in
procedural unfairness. In others, the reliability of the trial’s result may
have been compromised.
29 In those cases where it is apparent that no prejudice has
occurred, it will usually be undesirable for appellate courts to consider the
performance component of the analysis. The object of an ineffectiveness claim
is not to grade counsel’s performance or professional conduct. The latter is
left to the profession’s self governing body […]
[34]
Although
G.D.B. was a criminal case and the Supreme Court’s analysis of the issue
of the right to effective counsel was focused on persons charged with a felony,
this Court has recognized this right in the refugee context (see, for example, Gulishvili
v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1667, 2002 FCT 1200; Shirwa
v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 at
60-64 (T.D.)).
[35]
It
may also be noted that subsection 167(1) of the IRPA provides a statutory right
to be represented by counsel, to persons who are the subject of Board
proceedings.
[36]
However,
in proceedings under the IRPA, the incompetence of counsel will only constitute
a breach of natural justice in “extraordinary circumstances” (Huynh v.
Minister of Employment and Immigration (1993), 65 F.T.R. 11 at 15 (T.D.)). With
respect to the performance component, at a minimum, “the incompetence or
negligence of the applicant’s representative [must be] sufficiently specific
and clearly supported by the evidence” (Shirwa, above, at 60). With
respect to the prejudice component, the Court must be satisfied that a
miscarriage of justice resulted. Consistent with the extraordinary nature of
this ground of challenge, the performance component must be exceptional and the
miscarriage of justice component must be manifested in procedural unfairness,
the reliability of the trial result having been compromised, or another readily
apparent form.
(i) The performance
component
[37]
As
noted in Part II above, the Board acknowledged in its decision that there were
“issues with [Ms. Leggett’s] performance.” In this regard, the Board mentioned
that:
·
the
hearing originally scheduled for November 24, 2009 was adjourned to January 27,
2010 after Ms. Leggett submitted a revised narrative, dated March 2009, on the
morning of the hearing;
·
when
issues arose during the hearing on January 27, 2010 regarding the Applicant’s
claimed dates of detention in Iran, Ms. Leggett approached the Panel and
displayed a marked-up copy of the Applicant’s PIF and claimed that she had
intended to amend the PIF prior to the hearing, but forgot, due to her illness;
and
·
Ms.
Leggett had volunteered that she had not provided adequate representation for
the Applicant, and apologized for her shortcomings.
[38]
The
Applicant submits that Ms. Leggett’s incompetence was not confined to his
hearing before the Board, but was evident throughout her representation of him.
In addition to the foregoing, additional examples identified by the Applicant
include her failure to:
·
cross-examine
the port of entry interpreter and immigration officer;
·
notice
and correct errors of the interpreter;
·
adduce
evidence regarding the conversion of the Persian calendar to the Gregorian
calendar;
·
obtain
a medical report to confirm that the scars on his body were consistent with his
having been tortured; and
·
withdraw
from the record given the severity of her health condition.
[39]
The
Applicant also claims that Ms. Leggett was responsible for his poorly prepared
PIF narrative.
[40]
In addition to
acknowledging and apologizing for her shortcomings before the Board, Ms.
Leggett swore an affidavit in support of this application. In that affidavit,
she stated that it was very clear to her that the Afghani interpreter who
assisted with the Applicant’s port-of-entry interview had incorrectly
translated the dates provided by the Applicant with respect to his second
detention. She added that “due to illness,” only a brief PIF narrative was
submitted, that she intended to expand on this narrative before the hearing,
and that in the rush to get the PIF submitted on time, the interpreter she used
made some mistakes in converting calendar dates from the Persian calendar to
the Gregorian calendar.
[41]
In
her affidavit, Ms. Leggett also stated the following:
8.
Just prior
to the hearing, I did provide an addendum to the PIF narrative. The refugee
claim was originally scheduled to be heard in November, 2009. At the time, I
had become seriously ill with a medical condition that was initially
misdiagnosed by medical practitioners. On the morning of the hearing, I was
feeling very dizzy and unwell. When I arrived at the hearing, I learned that
the presiding Board Member – Michael Sterlin – had not received the revised PIF
narrative. Because I was also feeling sick, the hearing was postponed. While
the postponement was in no way the fault of Mr. Memari, the member set the next
hearing date as peremptory.
9.
As it
turned out, I had contracted a serious virus and the drugs that were prescribed
to me made the situation worse. I have permanently lost hearing in one ear and
the medication seriously impeded by mental faculties.
10.
While I
was still seriously ill, I nevertheless went to the resumption of Mr. Memari’s
hearing on January 27, 2010 because I knew that it would go ahead regardless of
my condition. I told the member at the beginning of the hearing that I was not
feeling well and that I had lost hearing in my right ear. I told him that I was
on medication which was making me very sick, and did not permit me to think or
reason, and at times understand what was being said. Nevertheless, the member
insisted that the hearing proceed.
[42]
The
foregoing is consistent with the following extract from the first page of Ms.
Leggett’s written submissions to Board member Michael Sterlin, dated January
31, 2010, a few days after the Board’s hearing in this matter, and after Ms.
Leggett claims to have ceased taking her medication:
On
the sitting of November 24, 2009, I wanted to request a postponement, as I was
not feeling well, was feeling dizzy, and mentioned it to you at the beginning
of the hearing. As you mentioned, you felt sorry I was not feeling well, but
you would have proceeded if all the material submitted had been on time.
You
adjourned the matter as the extensive addendum to the narrative was filed on
November 23, 2009, despite the fact that the letter I wrote and the addendum
were written on March 1, 2009. The addendum came to your attention on the day
of the hearing. You did not have time to read it.
You
insisted on making the next sitting, January 27, 2010, peremptory, irrespective
of any illness of counsel.
Since
November 24, 2009, I have been quite unwell, as I mentioned to you at the
sitting of January 27, 2010, with a condition that was misdiagnosed by the
medical professional, with serious and maybe permanent consequences. As I
mentioned to you on January 27, 2010, I was not well: - I was under the
influence of some strong medication, and it was very difficult for me to
function. Despite that, we did proceed.
You
also had not received the psychiatric report which was filed on the Monday,
January 25, 2010, as the psychiatrist did not have time to see the claimant
prior to January 11, 2010, despite the fact that I made the referral
immediately after the November 23, 2009 adjournment. I did not receive the
psychiatric report until the Thursday prior, on January 21, 2010, and there was
no one at the office to file the report on Friday, January 22, 2010.
At
the conclusion of the hearing on January 27, 2010, you asked me if I wanted to
make submissions. I did not understand your question. Then I indicated that I
did want to make submissions, and I made them orally, despite the fact that I
could hardly function due to the medication I was on, and the medical condition
I have. I also felt you had made up your mind irrespective of my submissions.
[43]
The
foregoing is also consistent with the complaint that the Applicant filed with
The Law Society of Upper Canada. In that complaint, the Applicant elaborated as
follows with respect to the various ways in which Ms. Leggett’s illness and
inattention to his file adversely impacted upon his case before the Board:
Ms.
Leggett prepared my initial refugee claim forms poorly, partly because she was
ill and partly because she was out of the country. The forms were prepared in
haste, and were inaccurate. After the forms were sent in, I tried to contact
her on numerous occasions, at least ten times. On every occasion, I was told
that there was no need to come in to see her, that everything was OK and that
there was nothing to be done. I later found out that this was wrong. I was only
able to meet up with her a matter of days before my hearing was scheduled to
take place. At that point over two years had passed since I first retained Ms.
Leggett’s services. At that time, it became clear to me, that substantial
changes were needed to be done to the papers (known as the Personal Information
Form). We made the changes, but Ms. Leggett only sent them to the Refugee Board
a day before the hearing. The Board Member had not received these changes on
the day of the hearing, so it had to be adjourned. It also had to be adjourned
because Ms. Leggett was sick. The next hearing date was made peremptory even
though I wasn’t at fault for the postponement. At the next hearing, despite the
fact that I told Ms. Leggett that there were other corrections that needed to
be made, she forgot to inform the Board Member of the amendments. This led the
Member to disbelieve my story. I attach to this complaint a copy of the Refugee
Board decision that discusses the problems that my lawyer had. I learned at the
second hearing that she was still very sick, and was not feeling lucid. She was
not competent during the hearing. I am sympathetic that she was sick, but she
should never have come to the hearing. She should have told me and withdrawn
from the record if she was not able to represent me competently. I honestly
feel that my life is at stake, and I feel that she did not represent me
adequately, despite what might have been her good intentions. In addition, her
interpreter made numerous errors, which I was told not to worry about and could
be fixed later. These mistakes were never corrected.
[44]
In
summary, the Board itself recognized and devoted five paragraphs of it decision
to discussing Ms. Leggett’s shortcomings. Ms. Leggett herself volunteered to
the Board that she had not provided adequate representation for the Applicant
and then apologized to the Board. She subsequently elaborated upon these
shortcomings in her written submissions to the Board and in an affidavit sworn
in support of this Application. The Applicant has also made a detailed
complaint to The Law Society of Upper Canada. This evidence is all internally
consistent. It is also consistent with the balance of the record.
[45]
I am
satisfied that the particular claims of incompetence set forth above are
sufficiently specific, exceptional and clearly supported by the evidence to
meet the performance component established in the jurisprudence discussed above.
(ii) The prejudice
component
[46]
In
its decision, the Board stated that the Applicant would not be penalized for
any alleged errors made by Ms. Leggett. However, after considering the
implications of the alleged errors, it concluded that there was still
insufficient credible evidence to justify a positive determination.
[47]
In
my view, it is readily apparent that the reliability of this conclusion by the
Board was compromised by Ms. Leggett’s representation of the Applicant, and
that therefore there has been a miscarriage of justice.
[48]
The
Board dismissed the Applicant’s claim for refugee protection on the basis that
his evidence, “on the whole, was not credible.” As discussed in Part II above,
the Board identified five “inconsistencies” which, cumulatively, and together
with one implausibility finding, led the Board to conclude that the Applicant
was not credible. In my view, Ms. Leggett’s representation of the Applicant
adversely impacted on three of those alleged “inconsistencies.”
[49]
With
respect to the other two inconsistencies, one was relatively minor. It occurred
when the Applicant quickly corrected himself regarding the place where the
leader of the anti-regime party he supported died. The negative inference for
the Applicant’s credibility that was drawn from this inconsistency was
explicitly made having regard to “the other concerns regarding the claimant’s
credibility.” Similarly, the implausibility finding also appears to have been
minor, in relation to the other concerns identified by the Board. The remaining
inconsistency involved the Applicant’s failure to disclose, in his
port-of-entry interview and in his port-of-entry declaration that he had been
detained twice. He was not represented by counsel at that time.
[50]
There
is no question that that the cumulative impact of these latter two
inconsistencies and the implausibility finding is significantly less than the
cumulative impact of all five of the inconsistencies and the implausibility
finding that provided the basis for the Board’s rejection of the Applicant’s
claim for refugee protection.
[51]
The
other three inconsistencies involved interpretation issues, the most important
of which concerned the dates of the Applicant’s two alleged detentions and
beatings. These inconsistencies appear to have played a central role in the
Board’s finding that the Applicant’s evidence was, “on the whole, not
credible.”
[52]
With
respect to the dates of his first detention, the Board noted in its decision
that there was a “very significant” inconsistency between the dates he provided
in his initial PIF narrative and the dates he provided to the Board during its
hearing. At the hearing, and in the more detailed PIF statement that he filed
as an addendum, he stated that the dates were from August 3, 2005 to August 24,
2005. However, in his initial PIF, the dates were stated to be from September
3, 2005 to October 3, 2005. The Applicant attributed this inconsistency to the
interpreter retained by Ms. Leggett.
[53]
As
previously noted, Ms. Leggett acknowledged during the hearing that she had
meant to change this, but forgot due to her illness.
[54]
Another
one of the inconsistencies identified by the Board as having been “very
significant” involved the dates of the Applicant’s second detention. The port-of-entry
interview record indicated that he stated that he had been detained from
October 25, 2006 to November 15, 2006. However, in his PIF, he stated that he
escaped from Iran upon his release from
detention, in February 2007. Once again, the Applicant attributed the
inconsistency to poor interpretation, this time on the part of the interpreter
who assisted with his port-of-entry interview. The Board rejected this
explanation.
[55]
The
nature of the Applicant’s problems with the translation of the dates from the
Persian calendar to the Gregorian calendar is revealed in the transcript of his
hearing with the Board (at page 30). His exchange with the Board member
regarding the dates of his second detention, as set forth in the port-of-entry
interview record, went as follows:
CLAIMANT: That’s not a complete document. I
stated on the 15th of 11 month and they, the Interpreter thought the 11 month
is the – according to Western calendar.
MEMBER: M’hm.
CLAIMANT: But 11 month in the Persian calendar is
sometime in February.
MEMBER: Okay. So, you’re telling me that –
COUNSEL: So, I detected that and I can always
refer to the Persian version of my declaration.
MEMBER: Okay. Let me see that – so, let me see that declaration,
please. Let me get it back. Okay.
CLAIMANT: Thanks.
MEMBER: Yeah. Okay. So, you’re saying this is right? It’s
February, not November?
CLAIMANT: In our calendar, it’s the 11th month. I
left, fled from Sanandaj.
MEMBER: I see it. It’s 11th. It’s 11 Persian month and it came out
with the 11th Gregorian month, November. I see what you’re saying (emphasis
added).
CLAIMANT: Exactly. And that’s what I detected as
well.
MEMBER: What do you mean you detected it?
CLAIMANT: Because – because there – the same
mistake was made in another place.
MEMBER: So, if you detected it, why didn’t you have him correct
the error, then?
CLAIMANT: Later, after I left the airport, later,
I found out.
[56]
Notwithstanding
that the Board member seemed to understand the Applicant’s explanation, he
nevertheless made a negative inference regarding the Applicant’s credibility.
As with the inconsistency regarding the dates of his first detention, the Applicant
was clearly prejudiced by this unfortunate error, which Ms. Leggett failed to
draw to the Board’s attention back in March 2009, when she first learned of it.
During the hearing, when the Board asked for an explanation of why there was so
much time between when the initial PIF was filed and when the more detailed PIF
addendum was filed, Ms. Leggett replied that she thought it had been filed
previously. She added: “But when I opened the file, I found that it had not
been, just before the hearing” (transcript, p. 34).
[57]
Elsewhere
during the hearing, the Board identified additional inconsistencies in the
record that involved dates. For example, at page 31 of the transcript, the
following exchange took place:
MEMBER:
Okay. So, I’m looking at your PIF, not the narrative. PIF, section 7, it says
you worked, okay, ‘til January 2007. That would make – right. Section 11 of
your PIF says you lived in Sanandaj until May ’07. How can that be?
CLAIMANT:
It’s not possible at all. In 2007 I was already in Canada.
MEMBER:
So, why did you put it?
CLAIMANT:
I didn’t put it there.
MEMBER:
Who did?
CLAIMANT:
My interpreter put it there.
MEMBER:
Okay. You said the PIF was read back to you and you understood it.
CLAIMANT:
Yes, when it was read to me in Persian, in Farsi, I understood what I – the
statements I made in Farsi, I understand, because the interpreter, my
interpreter, interpreted everything in Farsi for me.
[58]
Once
again, the Applicant was prejudiced by errors made by the interpreter retained
by Ms. Leggett, who failed to review the English version of the Applicant’s PIF
with him before it was filed by her.
[59]
The
Applicant appears to have been consistent from the outset with respect to the
dates, according to the Persian calendar, of his detentions and his escape from
Iran. However, he was unable
to read the English translation of those dates into the Gregorian calendar, or
to verify the accuracy of the translated dates as they were interpreted to him
at the port-of-entry and in his counsel’s office. He therefore had to rely on Ms.
Leggett in that regard. He was clearly prejudiced by her failure to adequately
represent him in relation to those critical aspects of his claims.
[60]
In
addition to the foregoing, the Applicant also may have been prejudiced by Ms.
Leggett’s failure to obtain a medical report to corroborate his claims of
torture. Had she obtained such a report, it may very well have buttressed the
Applicant’s credibility in the eyes of the Board. During the hearing before the
Board, Member Sterlin expressed, on four occasions, his displeasure with the
fact that a medical report had not been provided with respect to the injuries
the Applicant claimed to have suffered from having been tortured (transcript,
at pp. 9 and 22). He also expressed unhappiness with Ms. Leggett’s failure to
submit a psychiatric report before the date of the rescheduled hearing, on
January 27, 2010 (transcript, at pp. 10-11).
[61]
I
have little doubt that the Board may very well have reached a different overall
conclusion with respect to the Applicant’s credibility, had he not been
prejudiced by Ms. Leggett’s inadequate representation. Indeed, the Board also
may have been more positively predisposed to accept the explanation that he
provided with respect to the only other significant inconsistency that it identified
in its decision, namely, his failure to mention his initial detention during
his port-of-entry interview, before he retained Ms. Leggett.
[62]
I am
also satisfied that the Applicant was further prejudiced by Ms. Leggett’s
illness in the weeks leading up to the hearing, and in the hearing itself, when
it appears that she was medicated and not lucid. For example, at the initial
hearing on November 24, 2009, Ms. Leggett acknowledged that she had not been
feeling well for the past four to five weeks, and had to cancel meetings that
had been scheduled with the Applicant “practically every day.” In addition, it
is clear that her failure to submit, prior to the day before the initially
scheduled hearing date, the Applicant’s revised narrative, which had been
prepared in March of that year, led the Panel to adjourn the hearing to January
27, 2010 and to inform the Applicant that it intended to proceed with the
hearing on the latter date whether or not Ms. Leggett was able to proceed on
that date. This left the Applicant in the very difficult position of having to
retain new counsel on short notice or stay with Ms. Leggett. While the choice
to stay with Ms. Leggett was his, he could not have anticipated that she would
arrive for the rescheduled hearing in a state where, according to her own subsequent
submission to the Board: “I could hardly function due to the medication I was
on, and the medical condition I have.”
[63]
Moreover,
Ms. Leggett’s failure to withdraw from the matter well before the initially
scheduled hearing date deprived the Applicant of the opportunity to retain competent
counsel in time to properly prepare for his hearing.
[64]
In
my view, on the particular facts of this case, the cumulative impact of
the prejudice suffered by the Applicant as a result of Ms. Leggett’s inadequate
representation of him was sufficiently serious to compromise the reliability of
the Board’s decision. Taken in isolation, each of the individual actions and
omissions on the part of Ms. Leggett addressed above would not have satisfied
the prejudice component of the jurisprudence set forth above. However, I am
satisfied that the combined effect of these actions and omissions was
sufficient to result in a miscarriage of justice. Taken as a whole, Ms.
Leggett’s representation of the Applicant was not adequate or reasonable.
[65]
The
particular facts of this case differ significantly from the typical case in which
“the various omissions alleged against the applicant’s former counsel are not
such that they would undermine the confidence of a reasonably informed
objective person regarding the outcome of the applicant’s appeal” (Dukuzumuremyi
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 278, at para. 20).
[66]
Accordingly,
this application will be granted.
[67]
Given
my conclusion on this issue, it is not necessary to address the remaining
issues that have been raised by the Applicant.
V. Conclusion
[68]
The
application for judicial review is allowed. The Board’s decision is set aside, and the
matter is referred back to the Board for redetermination by a differently
constituted panel.
[69]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS
AND ADJUGES that this application for judicial review is allowed.
“Paul
S. Crampton”
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