VB4-01870

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 File No. / N° de dossier de la SAR : VB4-01870 Private Proceeding / Huis clos APPLICATION TO REOPEN Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision March 20, 2015 Date de la décision Panel Gordon C. McRae Tribunal Counsel for the person(s) who is(are) Maria Sokolova Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated Representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] These are the reasons and decision in the application of XXXX XXXX (the "appellant") to reopen his appeal previously dismissed by the Refugee Appeal Division (the "RAD") on January 13, 2015. [2] The Minister was provided with a copy of this application and has not responded. BACKGROUND [3] The appellant appealed the June 12, 2014 negative determination of the Refugee Protection Division (the "RPD") to the RAD. The RAD considered the appeal and confirmed the decision of the RPD issuing its decision on January 13, 2015. [4] On February 12, 2015 the appellant submitted an application pursuant to sections 37 and 49 of the Refugee Appeal Division Rules (the "Rules")1 to have his appeal to RAD reopened. The appellant has also applied for leave for judicial review at the Federal Court. The matter is still pending before the court. [5] On December 30, 2014 counsel for the appellant applied to the RAD to admit late evidence consisting of an affidavit from the appellant and pictures of his nephew. Among other things the appellant stated in his affidavit that on December 14, 2014 his brother had advised him that their nephew had been shot and was in hospital. The appellant also stated that his family had received three threatening letters since his RPD hearing, the last one being received a week and a half before his December 30, 2014 affidavit. He advised that he was attempting to get the medical and police reports regarding the alleged incident involving his nephew as well as the threatening letters referred to in his affidavit. [6] The appellant submits that he has suffered a breach of natural justice at the RAD as a result of the RAD rejecting new evidence in the form of photographs of his nephew showing the injuries he allegedly suffered as a result of being shot. The appellant further submits that it was a breach of natural justice for the RAD not to consider the affidavit of the appellant that was submitted December 30, 2014. [7] Counsel for the appellant states in her letter dated February 12, 2014 that the appellant would make more fulsome submissions once all his documents have been translated. Further submissions containing translated medical and police reports and copies of threatening letters were received on March 13, 2015 but the basis for the application to reopen remained the same. ANALYSIS [8] Section 49 of the Rules specifically sets out the provisions for reopening appeals. In this case, the appellant is basing his application to reopen the appeal on an alleged breach of natural justice due to the RAD not admitting evidence, and not considering the affidavit of the applicant dated December 30, 2014. [9] I find that the appellant has met the procedural requirements pursuant section 49 but he has failed to meet his burden of establishing that he has suffered a breach of natural justice. My reasons are as follows. [10] Subsection 49(6) of the Rules states; (6) The Division must not allow the application (for re-opening) unless it is established that there was a failure to observe a principal of natural justice. [11] The RAD dealt with the appellant's application of December 30, 2014 at paragraphs 24 to 28 of its "Reasons and Decision." Contrary to counsel's submission, I find it is clear from the RAD reasons that the RAD did consider the appellant's affidavit but determined, for reasons stated in paragraphs 26 to 28, that the evidence the appellant sought to enter was not admissible. [12] The appellant obviously disagrees with this finding, however, my role in considering this reopening application is not to agree or disagree with the findings or to reassess the RAD member's reasons but rather to determine if a breach of natural justice has occurred as that is the only ground that would allow me to reopen this appeal. [13] The RAD member had the jurisdiction and responsibility to consider, and rule on the appellant's application to submit additional evidence at the appeal. She discharged this responsibility and explained her rationale in the RAD reasons. The fact the appellant disagrees with the RAD members findings does not amount to a breach of natural justice. There was no other evidence submitted to support the appellant's submission that there was a breach of natural justice. [14] I find that no breach of natural justice occurred in this matter. CONCLUSION [15] The application by the appellant to re-open his appeal to RAD is dismissed. (signed) "Gordon C. McRae" Gordon C. McRae March 20, 2015 Date 1 Refugee Appeal Division Rules, SOR/2012-257. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-01870