Counsel failed to raise some of the client’s submissions on appeal
The Federal Court found a miscarriage of justice in a refugee case because the lawyer failed to raise some of the client’s arguments on appeal and said she did not have “strong grounds” to succeed.
In Tesema v. Canada (Citizenship and Immigration) 2022 FC 1240, Demekech Mekonn Tesema was in Canada on a student visa when she learned that the police in her home country, Ethiopia, wanted to question her about her involvement in a youth protest a decade or so earlier. Tesema immediately applied for refugee protection in Canada, fearing that she would be persecuted in Ethiopia as an active member of the Blue Party and as an ethnic Oromo.
A Refugee Protection Division (RPD) panel rejected Tesema’s refugee claim due to a lack of credible evidence. The appeal division likewise denied her application. Tesema argued that she lost her case because of the incompetence of her counsel. She pointed to several arguments that her lawyer could have raised to the Refugee Appeal Division (RAD) but were not. Tesema elevated the matter to the federal court on an application for judicial review.
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The federal court said that a lack of competent representation before a tribunal could result in a breach of procedural fairness if a three-part test has been satisfied. First, former counsel must receive notice that the applicant has raised the issue and be provided with an opportunity to respond. Second, the applicant must show that the former counsel’s conduct amounted to incompetence. Third, the applicant must establish that the incompetence resulted in a miscarriage of justice.
Tesema had easily satisfied the first part of the test, but the court noted that the second and third branches of the test are difficult to apply in a refugee case.
Counsel’s conduct amounted to incompetence
The second branch of the test requires the court to review the RPD decision and consider what issues the applicant could have raised on appeal to the RAD, take into account the former counsel’s explanation for not presenting those arguments, and then evaluate the applicant’s arguments to determine whether former counsel’s failure to raise them showed incompetence.
Tesema pointed to several submissions that could have been made on her behalf to the RAD but were not. In advance of her appeal, her former counsel advised her that she did not have “strong grounds” to succeed. While the lawyer conceded that another counsel of independent assessor could view Tesema’s case differently, the former counsel asserted that theoretical arguments that could have been made on her behalf were unsupported by the facts.
After considering the arguments that could have been made on Tesema’s behalf and the former counsel’s explanation for not raising them, the court was satisfied that competent counsel would have presented at least some arguments to the appeal division, such as the RPD’s failure to consider that Tesema could be exposed to persecution in Ethiopia due to her membership in the Blue Party. The federal court added that competent counsel could also argue on appeal that contrary to the RPD’s finding, Tesema’s delay in applying for refugee protection was not inconsistent with a genuine fear of political persecution because her fear only arose after she had arrived in Canada and learned that police in Ethiopia wanted her. Accordingly, the federal court found that the former counsel’s failure to advance these arguments to the appeal division amounted to incompetence.
Miscarriage of justice
The third part of the test requires the applicant to establish that the incompetence of former counsel resulted in a miscarriage of justice. In the federal court’s opinion, Tesema’s appeal to the RAD would likely have been different if some of Tesema’s arguments were presented on appeal.
The court further said that while the RAD may not have accepted all of Tesema’s arguments, it would likely have been persuaded by one or more of them, enough for Tesema to succeed on her appeal. The court ultimately concluded that the conduct of the former counsel resulted in a miscarriage of justice.