TC0-09812

RAD File / Dossier de la SAR : TC0-09812 TC0-09813 / TC0-09814 Private Proceeding / Huis clos Reasons and Decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) (Person(s) who is(are) the subject(s) of the appeal OR Respondent(s) in the appeal) XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Demandeur(s) (Personne(s) en cause dans l'appel OU Intimé(s) dans l'appel) Respondent(s) (Person(s) who is(are) the subject(s) of the appeal OR Respondent(s) in the appeal) Minister of Immigration, Refugees and Citizenship Canada Intimé(s) (Personne(s) en cause) dans l'appel OU Intimé(s) dans l'appel) Application considered / heard at Toronto, ON Demande instruite à Date of Decision 8 September 2021 Date de la décision Panel S. Thompson Tribunal Counsel for the applicant(s) Washim Ahmed Conseil (du/des) demandeur(s) Counsel for the respondent(s) Koomal Mian Conseil (de l'/des) intimé(s) Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) REASONS FOR DECISION OVERVIEW [1] The Applicants, XXXX XXXX (the Principal Applicant) and her children XXXX XXXX XXXX XXXX and XXXX XXXX XXXX (the Associate Applicants) are citizens of Bangladesh. They are requesting a reopening of their Refugee Appeal Division (RAD) appeal, based upon a breach of natural justice, specifically that the RAD erred by failing to accept some of the documents they submitted as new evidence in their appeal. [2] The Applicants ask the RAD to reopen their appeal. DETERMINATION [3] The application for reopening is dismissed. BACKGROUND [4] On XXXX XXXX, 2018, the Applicants arrived in Toronto, Canada from Bangladesh. They made inland claims for refugee protection, and had one appearance before the Refugee Protection Division (RPD) related to their claims for refugee protection on January 6, 2020. [5] On February 10, 2020, the RPD refused the Applicants' claim. The Applicants appealed the decision to the RAD. [6] In determining the appeal, the RAD refused to admit the following documents as new evidence. [7] The principal Applicant's application to the Ontario Court of Justice for a divorce from her spouse, and custody of their children, dated XXXX XXXX, 2020 - the RAD found that the family law application did not meet the requirements for admission stated in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) because the information in the filing about the Applicants' agents of persecution was known to the principal Applicant's spouse as early as 2018, when the minor Applicant XXXX XXXX XXXX XXXX was kidnapped and the Principal Applicant was threatened. The RAD noted the Applicants were represented by counsel, and that they could have obtained this information from the Principal Applicant's spouse in the five week-long period between the end of their RPD hearing and the date of the RPD decision. The RAD said the Applicants failed to explain why the Principal Applicant's spouse "would now disclose this information through his custody application but would not do so prior to rejection had he been asked."1 [8] Photographs, a poster, and a judicial writ from the the Supreme Court of Bangladesh's High Court Division dated XXXX XXXX, 2020 - while the RAD accepted that these documents were not reasonably available before the RPD made its decision, it found they were not relevant because there was, in the RAD's words, "nothing which connects the persons mentioned to the Principal [Applicant] or her husband aside from the mere fact that the Writ, to which the husband is not a party, was copied to him in his capacity as XXXX XXXX of the XXXX XXXX XXXX XXXX." The RAD found this was not evidence of conflict between the Principal Applicant's spouse and the Applicant's alleged agents of persecution, and declined to admit this document into evidence.2 [9] On May 6, 2021, the RAD refused the Applicants' appeal. As no new evidence was admitted in the appeal process, no oral hearing was held. The RAD panel found that the issue of internal flight alternative (IFA) was determinative of the appeal, and that the Applicants had a viable IFA in the city of Chittagong. Regarding the first prong of the IFA test, the RAD found the Applicants were fleeing non-state actors, as the RAD's review of the evidence did not support a finding that their alleged agents of persecution were linked to Bangladesh's ruling Awami League political party. [10] The RAD also found that even though the Principal Applicant initiated divorce proceedings against her estranged spouse in Bangladesh in Ontario in XXXX 2020, the Principal Applicant failed to show that her spouse would have the means or motivation to pursue her to the IFA location of Chittagong should she return to Bangladesh. Regarding the second prong of the IFA test, the RAD found the proposed IFA in Chittagong was reasonable, taking into consideration all the Applicants' circumstances. [11] The Applicants filed an application, dated July 29, 2021, to reopen their RAD appeal. They submit they made the application for reopening as soon as practicable.3 ANALYSIS [12] The RAD Rules allow for the reopening of appeals in certain circumstances. However, subsection 171(1) of the IRPA provides that: The Refugee Appeal Division does not have jurisdiction to reopen on any ground - including a failure to observe a principle of natural justice - an appeal in respect of which the Federal Court has made a final determination. [13] Sub-Rule 49(6) of the RAD Rules provides that the RAD must not allow the application unless it is established that there was a failure to observe a principle of natural justice (emphasis added). Sub-Rule 49(7) requires that the RAD consider any relevant factors, including those set out in the Rule. As such, the RAD can only reopen an appeal if there has been a failure to observe a principle of natural justice. The Applicants' submissions [14] The Applicants' submissions fail to explicitly identify how the RAD's refusal to admit these documents into evidence under subsection 110(4) gave rise to a failure to observe a principle of natural justice. [15] In their notice of application to reopen their appeal, the Applicants state that "[t]he Rules of natural justice requires that the RAD should consider the totality of the evidence and make a decision based on evidence."4 Based on my reading of the notice of application, alongside the arguments in the Applicant's reopening application, it appears the Applicants submit that the RAD's refusal to admit the XXXX 2020 Ontario Court of Justice family law application, the photos and poster, and the judicial writ from the Supreme Court of Bangladesh's High Court Division, gave rise to a breach of procedural fairness in the RAD proceedings, as the RAD failed to consider the totality of the evidence. [16] Having reviewed the documents in the Applicants' appeal record and the decision of the RAD, I am not persuaded by the Applicants that there was a failure to observe a principle of natural justice in their RAD appeal proceedings. The RAD panel did not ignore the documents submitted as new evidence. It considered them carefully and gave cogent reasons for refusing to admit the documents. [17] The RAD's findings concerning the Ontario Court of Justice family law application were, in my assessment, based on the information that was available to the RAD panel at the time when it considered the subsection 110(4) new evidence request. The explanations given at paragraphs seven and 12 of the Principal Applicant's affidavit in the reopening application - that she did not discuss her refugee claim with her spouse because she "considered him as someone who may have adverse interests against [her]"5 - were not before the RAD when it decided not to admit the Ontario Court of Justice documents into evidence. [18] The RAD's findings concerning the photos, poster, and judicial writ from Bangladesh's Supreme Court show that it understood the content of the documents. The RAD's assessment of their relevancy was based on the information that was before it at the time. Although the Principal Applicant's affidavit in the RAD Appellants' Record asserted that her spouse was party to the "court action going on in Bangladesh" filed by one XXXX XXXX XXXX, who she described as an enemy or rival of her spouse,6 the RAD found noted the judicial writ "was copied to [the principal Applicant's spouse] in his capacity as XXXX XXXX of the XXXX XXXX XXXX XXXX" and failed to disclose "any evidence of a conflict between the husband and the alleged agents of harm, namely XXXX. XXXX XXXX XXXX or XXXX. XXXX XXXX XXXX."7 Once again, the RAD's decision was based on the information that was before it at the time. [19] The RAD's refusal to admit these documents into evidence was not, in my view, vitiated by bias, and the Applicants ability to make the request to admit new evidence under subsection 110(4) was neither frustrated, nor impeded by any act or omission of the RAD panel. Nor was the panel's determination of the Applicants' claim rendered unfair by its refusal to admit the documents in the appeal as new evidence. [20] Based on the foregoing, I am not satisfied the Applicants have satisfied the requirements of RAD Rule 49, in that they have failed to demonstrate that the RAD's refusal to admit the new evidence in their appeal gave rise to a breach of natural justice. This finding is sufficient to determine this reopening application. CONCLUSION [21] The reopening application is dismissed. (signed) S. Thompson S. Thompson 8 September 2021 Date 1 RAD Decision and Reasons, dated May 6, 2021, p. 7, at paras. 21-22. 2 RAD Decision and Reasons, dated May 6, 2021, p. 8, at para. 25. 3 Applicants' Reopening Record, p. 13, at para. 15. 4 Applicants' Reopening Record, p. 3, at para. 2(d). 5 Applicants' Reopening Record, pp. 6-7, at para. 7. 6 Applicants' Appellants' Record, p. 18, at para. 17(d). 7 RAD Decision and Reasons, dated May 6, 2021, p. 8, at para. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 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.21.02 (June 8, 2021) Disponible en français Page 1 of 2 RAD File/Dossier de la SAR : TC0-09812 TC0-09813 / TC0-09814