Docket: IMM-3754-23
Citation: 2024 FC 2055
Ottawa, Ontario, December 18, 2024
PRESENT: The Honourable Mr. Justice Favel
BETWEEN: |
GAGANDEEP KAUR |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Gagandeep Kaur [Applicant], an Indian national, seeks judicial review of a March 2, 2023 decision [Decision] of the Refugee Appeal Division [RAD], upholding the Refugee Protection Division [RPD] determination that the Applicant is neither a Convention Refugee nor a person in need of protection pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The application for judicial review is dismissed.
II. Background
[3] The Applicant is a well-known weightlifter in India who sought employment with the Indian government in January 2018. The Applicant alleged she was sexually assaulted by a high-ranking sports official at that time. The Applicant sought to report the incident to the police, however, the sports official filed criminal charges against her and she was arrested. The Applicant alleged she was sexually assaulted by police officers during her detention. The Applicant’s mother, village council, and municipality counsellor secured her release through a bribe.
[4] The Applicant arrived in Canada later in 2018 on a visitor’s visa. In 2019, she filed a refugee claim. The RPD released its decision on August 12, 2022 [RPD Decision]. The determinative issues were credibility and lack of forward-looking risk.
[5] The RPD concluded the presumption of truthfulness was rebutted. The Applicant submitted two documents supporting material allegations at the heart of her claim: a 2022 medical note; and the Aadhaar card (identity card) of the doctor who treated the Applicant following the alleged sexual assault. First, the RPD concluded the medical note was fraudulent due to irregularities in its format. Additionally, the Applicant gave evolving and contradictory testimony regarding how it was obtained, and where the original 2018 medical note is located. Second, the RPD concluded the Aadhaar card was fraudulent. It contained several differences from the two samples provided, one sample in the National Documentation Package [NDP], and the other sample, the Aadhaar card of the Applicant’s mother.
[6] The RPD determined the Applicant’s testimony was evasive, evolving, and prone to embellishment. It contradicted the affidavit of her mother, and a municipal counsellor, Ranjeet Singh, concerning the Applicant’s release from detention.
[7] The RPD further assessed the Applicant’s lack of forward-looking risk, both as a person subjected to false charges, and as a single woman in light of the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, (18 July 2022) [Gender Guidelines].
[8] The Applicant appealed to the RAD.
III. The RAD Decision
[9] The Applicant challenged the RPD’s consideration of the Gender Guidelines and sought to admit new evidence consisting of affidavits from the Applicant’s mother and two neighbours, as well as two news articles on sexual violence in India. The RAD accepted one news article as country condition evidence, noting the second article formed part of the previous record.
[10] The RAD refused to admit the personal affidavits due to lack of credibility. All three affidavits contained serious allegations not previously included in the Applicant’s evidence nor basis of claim form. Though non-determinative, the RAD raised additional credibility concerns, noting identical errors in both neighbours’ affidavits referring to the Applicant as “he”
and “him”
.
[11] The RAD upheld the RPD’s findings on the medical note and Aadhaar card. The Applicant made no submissions as to how the RPD erred in finding these documents fraudulent. On independent assessment of the evidence, the RAD found no issues in the RPD’s analysis.
[12] The RAD noted the RPD’s proper consideration of the Gender Guidelines in its analysis. The RPD considered difficulties in obtaining corroborative evidence, and the impacts trauma may have on memory. Opportunity was given to the Applicant to understand and answer questions relating to when her risk began. Additionally, the Applicant’s testimony on inconsistencies in her mother’s first affidavit related to illiteracy, not memory. The RAD found no error in the RPD’s assessment.
[13] The RAD found the accumulation of omissions and inconsistencies in the Applicant’s evidence correctly resulted in the RPD’s negative credibility conclusions (Sary v Canada (Citizenship and Immigration), 2016 FC 178 at para 19). The RPD’s finding that evolving and contradictory testimony undermined the Applicant’s credibility was not challenged. Furthermore, some of the unchallenged credibility findings went to the heart of the Applicant’s claim. The RAD agreed that the Applicant had not proven the allegations on a balance of probabilities. In assessing the Applicant’s fear of persecution based on her profile, the RAD considered the new evidence. The RAD found that while sexual violence is prevalent in India, the evidence demonstrates the Applicant’s higher socio-economic background will likely shield her from the dangers faced by women of a lower socio-economic status. Lastly, the Applicant did not challenge the findings on risk from the Punjabi police. The RAD agreed with the RPD’s analysis on this point.
IV. Issues and Standard of Review
[14] After reviewing the parties’ submissions, this matter raises the following issues:
Was there a breach of procedural fairness due to the incompetence of the Applicant’s former counsel?
Was the RAD’s assessment of the Aadhaar card reasonable?
[15] The Applicant submits counsel competence is a question of procedural fairness, reviewable on the standard of correctness. The Respondent submits procedural fairness issues are functionally equivalent to a correctness standard (Zhou v Canada (Citizenship and Immigration), 2022 FC 1046 at para 9; Galyas v Canada (Citizenship and Immigration), 2013 FC 250 at para 27 [Galyas]).
[16] I agree. This issue is reviewable on a standard akin to correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [Canadian Pacific]; Galyas at para 27). In undertaking this assessment, the Court will determine whether the process followed was fair having regard to all the circumstances (Canadian Pacific at para 54).
[17] The parties agree the merits of the Decision are reviewable on the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). I agree. This case does not engage the exceptions set out by the Supreme Court of Canada in Vavilov (at paras 16-17); therefore, the presumption of reasonableness is not rebutted.
V. Analysis
A. Was there a breach of procedural fairness due to the incompetence of Applicant’s former counsel?
(1) Applicant’s Position
[18] In order to successfully raise incompetence of counsel as a breach of natural justice an Applicant must establish “first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted”
(R v GDB, 2000 SCC 22 at para 26 [GDB]). In the immigration context the Court has provided the following guidance in Memari v Canada (Citizenship and Immigration), 2010 FC 1196:
[36] However, in proceedings under the IRPA, the incompetence of counsel will only constitute a breach of natural justice in “the most extraordinary case” [citation omitted]. 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” [citation omitted]. 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.
(a) Performance Component
[19] First, failure to raise all grounds available to an Applicant on appeal falls outside the range of reasonable behavior of competent counsel (Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 at para 79). The Applicant submits the counsel she retained for the RAD hearing [RAD Counsel] fell outside this range.
[20] The Applicant repeatedly emphasized to RAD Counsel the importance of challenging the RPD’s findings of fraud for two documents, the medical note and Aadhaar card. RAD Counsel did not seek information from the Applicant on this ground and did not challenge these findings. Additionally, the Applicant authorized RAD Counsel to raise the issue of her previous RPD Counsel’s incompetence, but RAD Counsel did not.
[21] Second, it is counsel’s duty to advise the client what evidence will be required (Medica v Canada (Citizenship and Immigration), 2011 FC 927 at para 14). The Applicant submits she was advised to get further affidavits from her mother and other relevant individuals without any guidance as to content.
[22] Third, Quebec’s Code of Professional Conduct of Lawyers, CQLR, B-1, r 3.1 requires a lawyer to be reasonably available for the client during the performance of their mandate. The Applicant submits RAD Counsel did not communicate with her in a professional and diligent manner.
[23] Fourth, RAD Counsel’s submissions highlight the cavalier attitude he took in the Applicant’s matter. In their submissions, RAD Counsel repeatedly referred to risk faced by the Applicant at the hands of “her husband’s politicians”
. This clearly contradicts the transcript from the RPD hearing confirming the Applicant is not married.
[24] Finally, the Applicant noted RAD Counsel has recently been subject to this Court’s condemnation with respect to materials filed on behalf of their clients (Singh v Canada (Citizenship and Immigration), 2023 FC 1459 at para 10).
(b) Prejudice Component
[25] An applicant must demonstrate that, but for the alleged conduct, there is a reasonable probability the result of the hearing would have been different (Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at para 11).
[26] At various points in the Decision, the RAD was clearly surprised the Applicant did not challenge these credibility findings:
[25] While the Appellant challenges some of the RPD’s adverse credibility findings, I find that the findings that she has not challenged go to the heart of her claim and undermine her credibility….
[30] Indeed, the RPD made numerous negative credibility findings regarding the Appellant’s evidence that she has not challenged on appeal. I find—based on my own independent assessment of the evidence before me—that these unchallenged negative credibility inferences are sufficient to find that the Appellant has failed to prove her allegations, on a balance of probabilities….
[58] I find that this is an instance where the accumulation of problems with the Appellant’s evidence—most of which were not challenged by the Appellant on appeal—results in a negative conclusion about her credibility and the credibility of her allegations….
[63] However, given the numerous credibility findings noted above—most of which were unchallenged by the Appellant on appeal—I do not find that the Appellant has credibly proven her allegations of having been raped by a government official and/or the police in India. Consequently, I do not find that the Appellant would be at risk in India as facing discrimination amounting to persecution because she is a victim of rape as alleged….
[Emphasis added.]
[27] The RAD confirmed the RPD’s findings, even when conducting its own analysis, on the basis that many of these findings had not been challenged on appeal. The Applicant submits this clearly satisfies the prejudice component.
[28] Lastly, the Applicant complied with the Court’s Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings [Practice Guidelines] giving RAD Counsel reasonable notice to respond to these incompetence claims. RAD Counsel did not respond to the notice.
(2) Respondent’s Position
[29] The Applicant failed to demonstrate both the performance and prejudice components of the GDB test. Incompetence of counsel must be sufficiently specific and clearly supported by the evidence (Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17 [Gombos]). There is also a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Incompetence will only result in breach of procedural fairness in “extraordinary circumstances”
(Gombos at para 17).
(a) Performance Component
[30] Aside from her affidavit, the Applicant has provided no other evidence to support the incompetence allegation. The Applicant states she initially met with RAD Counsel for 45 minutes in the presence of a staff member fluent in Punjabi. During the meeting, the Applicant asked RAD Counsel to challenge the fraudulent document findings. There is no indication she raised or instructed RAD Counsel to challenge any of the other RPD findings. Likewise, there is no indication of other topics of discussion during a relatively long meeting. The Applicant’s evidence does not meet the high threshold required to establish that RAD Counsel’s performance was incompetent.
(b) Prejudice Component
[31] If such incompetence in performance did occur, which is not conceded, the Applicant has failed to establish any resultant miscarriage of justice. Aside from the matter of the doctor’s Aadhaar card, the Applicant failed to challenge any of the RAD’s numerous credibility findings. This is determinative. The RAD independently assessed the evidence and upheld all of the RPD’s credibility findings. Competence of RAD Counsel is therefore irrelevant. The Applicant has not shown that failure to challenge the RPD’s credibility findings before the RAD prejudiced her in any way.
(3) Conclusion
[32] RAD Counsel’s conduct demonstrates omissions, and actions, which are below the standard of competent counsel. However, the Applicant has failed to demonstrate that a breach of procedural fairness resulted. The prejudice component is not met.
[33] The Applicant complied with the Court’s Practice Guidelines and RAD Counsel had a reasonable opportunity to respond to the allegations. It is only in extraordinary circumstances that counsel’s behaviour may ground a breach of natural justice allegation and warrant redetermination by the decision-maker (Nik v Canada (Citizenship and Immigration), 2022 FC 522 at para 22 [Nik]). The three-part test for reviewable counsel conduct laid out in Nik (at para 23) identifies the Applicant’s onus to establish the following:
i. the previous representative’s acts or omissions constituted incompetence or negligence;
ii. but for the impugned conduct, there is a reasonable probability that the outcome would have been different (in other words, a miscarriage of justice has occurred as a result of the conduct); and
the representative had a reasonable opportunity to respond to an allegation of incompetence or negligence [citations omitted.]
(a) Performance Component
[34] The determinative issue for the RPD was the Applicant’s credibility. The RPD found the Applicant’s credibility was undermined by: two documents it found to be fraudulent; the Applicant’s evasive and exaggerated testimony; and contradictions between her testimony and other evidence. It is an omission that RAD Counsel did not challenge any of these credibility findings, despite being the very basis of the RPD’s refusal to accept the allegations supporting her claim. At the RPD hearing, the RPD member confirmed credibility and forward-looking risk as the determinative issues. However, the RAD Counsel only challenged the RPD’s application of Gender Guidelines and forward-looking risk. In my view, competent counsel would have put forward arguments related to the Applicant’s credibility and the findings of fraud (Tesema v Canada (Citizenship and Immigration), 2022 FC 1240 at paras 15-20).
(b) Prejudice Component
[35] The Applicant correctly notes the RAD repeatedly acknowledged the lack of challenge to the various credibility issues. This informed the RAD’s confirmation of the RPD’s decision. Without challenging the credibility findings, it is difficult to see how the Applicant could have received a positive decision from the RAD.
[36] The Respondent submits the RAD’s comments about the lack of challenge to the credibility issues do not detract from the RAD’s individual assessment of each of the RPD’s credibility findings. The Applicant has not demonstrated that, had the credibility findings been challenged, there was a reasonable probability that the RAD’s assessment would have changed (Zhou v Canada (Citizenship and Immigration), 2022 FC 1046 at paras 20-25). The Applicant led neither evidence nor submissions to show whether or how the outcome would have been different. In my view, the Applicant has not provided evidence demonstrating that a miscarriage of justice occurred.
B. Was the RAD’s assessment of the Doctor’s Aadhaar card reasonable?
(1) Applicant’s Position
[37] The RAD erred by failing to read the NDP document as a whole. The NDP states the Aadhaar card may be in the form of a letter, digital or PVC card. Only one of the formats was attached for reference, the sample letter format. The RAD relied on the analysis of the RPD without recognizing this error. Furthermore, the attached sample letter could only be accessed via hyperlink, and the appearance of identification cards change over time.
[38] An administrative body’s decision will be unreasonable if findings of fact are made in a perverse and capricious manner, without regard to evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CarswellNat 1981, 1998 CanLII 8667 (FC)). The RAD erred when it unreasonably accepted the RPD’s analysis since the NDP on Aadhaar was adequately evidenced before both the RAD and RPD.
(2) Respondent’s Position
[39] The Applicant only challenges one of the RAD’s many credibility findings, that her doctor’s Aadhaar card was fraudulent. However, the Applicant fails to show any error with the RAD’s assessment. First, the NDP evidence states that the Aadhaar card may be presented in three formats but does not indicate the contents differs in any format. Second, the RAD and RPD assessment compared the doctor’s Aadhaar card with that of the Applicant’s mother, not just the NDP sample.
[40] Furthermore, the RAD reasonably and independently assessed each of the numerous credibility findings. The Applicant fails to show RAD erred in any of them. Since the Applicant has not addressed other credibility findings, they must be taken as reasonable and responsive of the record.
[41] It is well settled that inconsistencies, contradictions, and omissions strongly support an adverse credibility finding. This “will ordinarily enable the Court to be satisfied that the finding and the ultimate conclusion reached by the Board fall within a range of acceptable outcomes”
(Kaur v Canada (Citizenship and Immigration), 2012 FC 1379). Omissions significant to the basis of claim will also impugn an applicant’s credibility (Lawani v Canada (Citizenship and Immigration), 2018 FC 924 at paras 20-26). The inconsistent, contradictory evidence and fraudulent documents were at the heart of this claim. It was reasonably open for the RAD to determine the Applicant’s credibility as it did (Forvil v Canada (Citizenship and Immigration), 2020 FC 585).
(3) Conclusion
[42] The RAD’s assessment of the Aadhaar card was reasonable.
[43] The RAD noted in its Decision that the Applicant provided no arguments on appeal as to how the RPD erred in finding the medical note and doctor’s Aadhaar card fraudulent. Nevertheless, the RAD conducted an independent assessment concurring with the RPD on its findings.
[44] The RAD noted nine differences in the doctor’s Aadhaar card when compared to the NDP sample and the Aadhaar card of the Applicant’s mother.
[45] The RAD considered the Applicant’s explanation that her mother is not educated and simply accepted what she was handed. The RAD reviewed the RPD’s findings of insufficiency for this explanation. The RAD acknowledged credibility issues led to finding the documents fraudulent on a balance of probabilities. The RAD found no error.
[46] In my view, the Applicant has not shown the RAD unreasonably assessed the Aadhaar card based on the evidence before it. I find the RAD assessed the Aadhaar card against the mother’s card, not just the NDP sample. The evidence does not sufficiently demonstrate variation between Aadhaar card formats that could render the RAD’s findings unreasonable or contradictory to the evidence.
VI. Conclusions
[47] For the reasons above, the application for judicial review is dismissed.
[48] The Applicant has not demonstrated that RAD Counsel’s conduct resulted in a miscarriage of justice. Nor has the Applicant shown the RAD’s evidence assessment to be unreasonable.
[49] The parties do not propose a question for certification and I agree that none arises.
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