MB6-04352

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. / No de dossier de la SAR : MB6-04352 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision December 7, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Moriba Alain Koné Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION Second Application to Reopen [1] In this case, the Refugee Appeal Division (RAD) dismissed the appeal in a decision dated September 26, 2016, because the file had not been perfected within the time limit set out in paragraph 159.91(b) of the Regulations Amending the Immigration and Refugee Protection Regulations and subrule 3(5) of the Refugee Appeal Division Rules (RAD Rules), that is, within 30 days after the day on which the persons receive the reasons for decision from the Refugee Protection Division (RPD). In this case, the time limit to perfect the appeal was August 24, 2016. [2] On October 11, 2016, the appellant sent the RAD an application to reopen the appeal. [3] In a decision dated November 22, 2016, the RAD denied the application to reopen primarily because the appellant did not demonstrate that the Immigration and Refugee Board of Canada or the RAD had failed to observe a principle of natural justice, as required by subrule 49(6) of the RAD Rules, and also because the application to reopen made by the appellant did not follow at least two procedures set out in rule 49 of the Rules: first, the appellant did not provide a copy of the application to her previous counsel, whom she accused of providing inadequate representation (subrule 4); and, second, the appellant did not explain in her application why she did not make an application for leave to apply for judicial review (paragraph 7(b)). [4] The same day on which the RAD rendered a decision denying the application to reopen, that is, on November 22, 2016, the appellant sent the RAD a copy of her complaint against the counsel who had represented her before the RPD, filed with the Immigration Consultants of Canada Regulatory Council. [5] On November 24, 2016, the appellant sent the RAD a copy of her application for leave and for judicial review of the RAD's decision dismissing her appeal for lack of perfection, filed with the Federal Court and dated November 23, 2016. [6] Given the mailing of these two documents received after the RAD decision to deny the application to reopen, the RAD will consider the entire matter as a second application to reopen, although neither the appellant nor her counsel specifically requested it. [7] Subrule 49(8) of the Rules states that: (8) If the appellant made a previous application to reopen an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence. [8] I am of the opinion that, in the present case, given the grounds for the refusal of the first application to reopen, there do not exist exceptional circumstances supported by new evidence that would permit me to allow the second application to reopen, for the following reasons. [9] First, the primary ground on which the first application to reopen was denied is that the appellant did not demonstrate a failure to observe a principle of natural justice and, in my opinion, that ground is still valid, since neither of the two documents filed subsequently make reference to this. [10] Second, sending the RAD the copy of the complaint filed against the appellant's first counsel still does not mean that the criteria set out in subrule 49(4) has been met: it requires that the application to reopen be provided to the counsel who allegedly provided her with inadequate representation, which has still not been done even if a complaint was filed against him. [11] Lastly, although the appellant demonstrated that she had filed an application for judicial review with the Federal Court of the RAD decision dismissing her appeal for lack of perfection, the fact remains that the principal ground on which the application to reopen was denied-she did not demonstrate that there was a failure to observe a principle of natural justice-is still valid and that it is sufficient to justify denying the application to reopen. CONCLUSION [12] Consequently, the second application to reopen is denied. Normand Leduc Normand Leduc December 7, 2016 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MB6-04352 4 RAD.25.02 (February 7, 2014) Disponible en français