Docket: IMM-9990-23
Citation: 2024 FC 1978
Toronto, Ontario, December 5, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Nahid AHMED |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Nahid Ahmed [Applicant], a citizen of Bangladesh, alleges a well-founded fear of persecution, or a risk of torture, risk to life, or risk of cruel and unusual punishment from two powerful local leaders of the Awami League in Bangladesh. The Applicant fled to Canada on a student visa in December 2021. He immediately sought legal assistance, and submitted his claim for refugee protection in January 2022.
[2] The Applicant’s initial counsel was Mr. Guoba. An interpreter, Mr. M, who worked with Mr. Guoba, met with the Applicant and prepared his Basis of Claim [BOC]. The Applicant subsequently attempted to contact his initial counsel, indicating that he wanted to change his narrative and change the date of his hearing at the Refugee Protection Division [RPD]. All of the Applicant’s emails and phone calls went unanswered.
[3] The Applicant subsequently retained new counsel, Mr. Kaminker, at his RPD hearing, and submitted an amended BOC to the RPD. The RPD refused the Applicant’s claim. It found the determinative issue was credibility, noting, in part, that the Applicant presented two materially different versions of his BOC narrative. The RPD noted the Applicant’s explanation that his first interpreter had not accurately recorded his narrative and had failed to accurately interpret his first BOC narrative back to him. The RPD also considered the fact that the Applicant’s previous counsel had failed to respond when he brought these issues to counsel’s attention. However, the RPD did not afford this explanation any weight, as the Applicant’s new counsel, Mr. Kaminker, did not follow the IRB’s Practice Notice for Allegations Against Former Counsel [Practice Notice] and did not explain why the Practice Notice was not followed.
[4] On appeal, the Refugee Appeal Division [RAD] agreed with the RPD’s credibility findings and confirmed its determination that the Applicant is not a Convention refugee, nor a person in need of protection [Decision].
[5] The Applicant seeks judicial review of the Decision.
[6] I grant the application as I find the RAD unduly fettered its discretion by relying on the Practice Notice, when it refused to consider the Applicant’s submissions and explanations for submitting an amended BOC.
II. Issues and Standard of Review
[7] The Applicant submits a number of issues, which can be distilled into three questions:
Did the RAD fetter its discretion by relying on the Practice Notice?
Was the Decision unreasonable?
In the alternative, was there a breach of procedural fairness due to ineffective representation by counsel?
[8] The Applicant submits, and I agree, there are several different applicable standards of review.
[9] Regarding the issue of whether the RAD fettered its discretion, in Matharoo v Canada (Citizenship and Immigration), 2020 FC 664 at para 21, the Court determined that “issues of fettering are not particularly amenable to a standard of review as a decision which is the product of fettered discretion is automatically unreasonable. It is best to resolve a question of fettering therefore by asking whether the decision arose from a fettered discretion.”
[10] The procedural fairness question should be determined on a standard “akin to correctness”
: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 34-35, 54-55. However, the standard of review for assessing incompetence is reasonableness, with a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance: Del Angel Quiroz v Canada (Citizenship and Immigration), 2024 FC 194 at para 35; R v GDB, 2000 SCC 22 at paras 26-27.
[11] The merits of the Decision should be assessed on a reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23, 25.
III. Analysis
[12] The determinative issue in this case is that the RAD unduly fettered its discretion by relying on the Practice Notice.
[13] As noted above, the RPD rejected the Applicant’s explanation for filing an amended BOC, citing as one of the reasons, Mr. Kaminker’s failure to follow the Practice Notice and his failure to explain why the Practice Notice was not followed.
[14] On appeal, the Applicant tendered, among other evidence, email correspondence to his initial counsel. The email correspondence indicated that the Applicant wrote to Mr. Guoba on April 7, 2022, introducing himself as a client through Mr. M. The Applicant asked Mr. Guoba for a copy of his BOC, indicating that he wanted to change his narrative. On April 8, 2022, the Applicant again emailed Mr. Guoba, stating that Mr. M was pressuring him for more money, and requesting that Mr. Guoba work with him directly without Mr. M. The Applicant also called Mr. Guoba many times, and had neither his calls nor his voicemails returned.
[15] In addition, the Applicant’s then counsel Mr. Kaminker filed a memorandum of argument to the RAD, submitting in part that:
The RPD failed to consider the Applicant’s explanation that the first narrative was not properly prepared because counsel was not involved in the preparation and the Applicant’s efforts to communicate fell on deaf ears;
The RPD’s description of what transpired with the initial counsel was not accurate and did not take into account the Applicant’s email correspondence with respect to his efforts to contact his initial counsel; and while this evidence was not officially on the record, it was before the RPD member and as such this communication should not be considered new evidence;
There was significant evidence before the RPD of the Applicant’s efforts to contact his initial counsel and his assertion that the narrative was in fact incomplete; and
The RAD should consider this evidence which was before the RPD and not draw the same negative credibility interference to reject the Applicant’s explanation.
[16] In addition, the Applicant testified at the RPD hearing that:
The interpreter for his first BOC did not translate the entire story to the Applicant, and the Applicant at the time did not fully understand everything and he signed without understanding everything;
It was the interpreter and not Mr. Guoba whom the Applicant interacted with to prepare the BOC form;
The Applicant told the interpreter all the events that occurred to him, but the interpreter did not mention them all in the narrative, and the Applicant realized this error once he received the BOC documents; and
The Applicant tried to contact his initial counsel once he realized the mistakes in his BOC form so he could make the changes, but his initial counsel did not respond to the Applicant, so the Applicant was compelled to change counsel.
[17] The RAD declined to admit the new evidence submitted by the Applicant, including his email correspondence to his initial counsel, on the basis that the Applicant reasonably could have been expected to bring it to the RPD before the decision.
[18] The RAD also decided to “assign no weight to the allegation of incompetent former Counsel and find it not to be credible”
due to the Applicant’s failure to follow the Practice Notice and the failure to provide any explanation for not following the Practice Notice undermined the Applicant’s credibility.
[19] The Applicant submits that the RAD was called on to consider the credibility of the Applicant’s explanation for how and why he submitted the amended BOC, but refused to do so, solely on the basis that the Practice Notice was not followed and the Applicant’s initial counsel was not afforded an opportunity to respond to the Applicant’s claims. The Applicant further argues that the RAD skirted its duty to consider whether the RPD erred in finding that the Applicant did not provide a reasonable explanation for his amended narrative on the mere technicality that the Practice Notice was not followed and an explanation for not following the Practice Notice was not provided. In so doing, the RAD erred by fettering its duty to consider whether the Application provided a reasonable explanation in the circumstances of his case to explain the amendment, and ignored important materials in the record.
[20] I agree.
[21] The RAD was required to consider the Applicant’s explanation for amending his narrative irrespective of whether or not the Practice Notice was followed. As the Applicant points out, Rule 9 of the Refugee Protection Division Rules expressly provides the opportunity for claimants to make changes to their BOC form. While a decision-maker may draw an adverse credibility inference if the claimant has not provided a satisfactory explanation for discrepancies in the amended narrative and does not have to accept a claimant’s explanation for the changes in the narrative, a decision-maker commits a reviewable error when they do not refer to and engage with the claimant’s corroborative evidence before concluding there is no reasonable explanation for the changes in the narrative: Garcia v Canada (Citizenship and Immigration), 2014 FC 871 at paras 42-43.
[22] By refusing to consider the Applicant’s submissions on appeal because the Practice Notice was not followed, the RAD fettered its discretion.
[23] As noted by Justice Favel in Yanasik v Canada (Citizenship and Immigration), 2021 FC 1319 [Yanasik] at para 34: “the RAD fettered its discretion by basing its Decision on RAD Counsel’s non-compliance with the Practice Notice and then refusing to consider the circumstances before it.”
[24] In para 33 of Yanasik, Justice Favel cited Justice Mosley’s decision in Calandrini v Canada (AG), 2018 FC 52 where he explained that “‘[t]he exercise of discretion by a decision-maker is said to have been fettered if the decision is made in accordance with the views of another without the exercise of independent judgment’ (at para 126). This is also true if a decision-maker blindly follows a specific policy. A decision-maker cannot limit the exercise of the discretion imposed upon them by adopting a policy, and then refusing to consider other factors that are legally relevant (Halfway River First Nation v British Columbia (Ministry of Forests), 1999 BCCA 470 at para 62, citing Maple Lodge Farms Ltd v Canada, [1982] 2 S.C.R. 2, [1982] SCJ No 57 (QL) (SCC)).”
[25] The RAD in this case did exactly that: it limited its discretion by “blindly”
(Yanasik at para 33) adopting the Practice Notice and refusing to consider all other relevant factors when assessing the Applicant’s explanation for filing two narratives. Despite materials before the RAD that demonstrated issues with the Applicant’s initial counsel – as well as the interpreter who worked with counsel – the RAD disregarded those circumstances.
[26] Further, as in Yanasik, the issue of credibility was tied to the action – or inaction – of the Applicant’s initial counsel and Mr. M. Yet, the RAD confirmed the RPD’s credibility findings without having properly assessed the Applicant’s issues with his initial counsel and Mr. M. In doing so, the RAD fettered its discretion.
[27] I reject the Respondent’s submission that because the Applicant did not follow the Practice Notice, his argument that his initial counsel and interpreter were responsible for the deficiencies in his original narrative could not be accepted or given any weight. This argument misses the point on whether the RAD erred by fettering its discretion.
[28] The Respondent does not point to any basis on which to distinguish Yanasik in their written submissions. At the hearing, the Respondent attempted to distinguish Yanasik by suggesting that in Yanasik there were no credibility concerns with the applicant’s claim of ineffective counsel.
[29] With respect, the Respondent’s argument is directly contradicted by the following paragraph in Yanasik:
[17] On March 5, 2020, the RAD refused the appeal. The RAD was unpersuaded that RPD Counsel's representation resulted in a breach of procedural fairness. The RAD noted that the Applicants' evidence regarding the re-drafted BOC narratives was confusing and contradictory. For example, the Principal Applicant stated that she did not know what she signed or what statements the RPD was referring to during the hearing. Furthermore, she only became aware of the contents of the re-drafted BOC narrative after the denial of their claim. The RAD found that this contradicted the Principal Applicant's allegations that she experienced confusion during her hearing because she believed that the RPD was using the re-drafted BOC narratives filed by RPD Counsel.
[30] Thus, the RAD in Yanasik not only rejected the applicant’s submission that her RPD counsel’s representation resulted in a breach of procedural fairness, the RAD also found the applicant’s allegations not credible. The situation is thus much the same as in this matter.
[31] As the RAD’s credibility findings in this matter, which were determinative of its Decision, were tied to its refusal to consider the Applicant’s explanation for having two materially different narratives, the RAD’s fettering of its discretion is thus determinative of this application. Therefore, I set aside the Decision.
[32] Strictly as an obiter, and without leaning into whether the Applicant’s second counsel at the RPD and at the RAD provided ineffective assistance, I observe that had counsel either followed the Practice Notice, or in the alternative, provided an explanation as to why he deemed it unnecessary to follow the Practice Notice, the outcome for his client might have been different.
IV. Conclusion
[33] The application for judicial review is allowed.
[34] There is no question to certify.
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