TB3-07875

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 : TB3-07875 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 16, 2014 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kingsley I Jesuorobo Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX asks that the Refugee Appeal Division (RAD) re-open her appeal, which was dismissed by the RAD for lack of perfection. DETERMINATION [2] Pursuant to RAD Rule 49, the RAD denies this application, as the applicant has not established that there was a failure to observe a principle of natural justice when her appeal was dismissed. Background [3] The Refugee Appeal Division received a Notice of Appeal ("NOA") from the applicant on November 1, 2013. According to the NOA, the applicant was appealing a decision of the Refugee Protection Division ("RPD") dated October 9, 2013 with written reasons received on October 18, 2013 rejecting her claim for refugee protection. [4] According to the RAD records, the RPD decision was dated October 10, 2013 and was deemed to be received by the Applicant on October 17, 2013. The appeal record was to be filed on or before November 18, 2013. On December 16, 2013, having received no further documents from the Applicant, the RAD dismissed the appeal for lack of perfection. [5] On January 7, 2014, the applicant filed an application asking the RAD to re-open her appeal. She submitted that she still had reason to fear persecution in her country of origin and her appeal should not have been dismissed. She stated that her counsel had contacted the RPD on November 18, 2013 and asked for a transcript of her refugee hearing and it was not provided until December 6, 2013. She asked that the RAD grant her application and give her time to perfect her appeal. The RAD denied the application and found that the applicant had not established that there was a failure to observe a principle of natural justice in the dismissal of her appeal. [6] The applicant had submitted that her appeal was not perfected because of the delay in receiving the transcript or recording of her hearing from the RPD. The RAD rejected this argument. The RAD stated that on November 5, 2013, the RAD sent a letter to the applicant reminding her to perfect her appeal within 30 days after the day on which she received the RPD's written decision. She claimed in her Notice of Appeal that she received that decision on October 18, 2013 and, as such, she could reasonably have been expected to know that her appeal record was due on or about November 18, 2013. According to the applicant's affidavit the recording from the RPD was not requested until November 18, 2013. A fax transmission sheet presented by the applicant to the RAD in support of that application showed that the request for recording was actually faxed to the RPD on November 19, 2013 and again on November 21, 2013. The applicant submitted that her lawyer requested the CD of the hearing in a timely manner and informed the RPD that the purpose of the CD was for the perfecting of the applicant's appeal. She stated that, under the new RPD Rules, the lawyer's office was under the impression that the RPD would inform the RAD of her request. The RAD did not accept this argument. The Member found that the applicant did not request the RPD recording in a timely manner as the request was faxed to the RPD after the deadline for perfection of the appeal. Even if the RPD produced the recording immediately, this could not have led to timely perfection. In addition, the applicant's two letters to the RPD, in which she requested the recording, made no reference to the RAD appeal. The applicant did not identify any Rule that suggests the RPD could have been expected to advise the RAD of the request. Also, it was open to the applicant to make an application to the RAD for an extension of time to perfect her appeal pursuant to the RAD rules. She failed to do so, even though the RAD waited for almost a month past the perfection deadline before dismissing the appeal for lack of perfection. [7] On April 14, 2014 the RAD received another application from XXXX XXXX asking that the Division re-open her appeal. [8] The applicant provided an affidavit that she swore on April 12, 2014. In the affidavit she states that she had retained her previous lawyer who represented her at the RPD hearing and she also retained the same lawyer to appeal the negative RPD decision. The applicant states in her affidavit that she was advised by her previous lawyer that her case had been dismissed by the RAD but that her lawyer would file all necessary applications to rectify the dismissal because it had resulted from the difficulty with obtaining the CDs of her hearing at the RPD in time. In March 2014, her previous lawyer contacted the applicant and advised that she had reassessed her case and determined that would it be better for her to retain another counsel. She retained her present counsel on April 9, 2014. The applicant states that she was not responsible for the delay that resulted in the dismissal of her appeal and, at all material times, she relied on the advice of her previous lawyer and believed that she was representing her competently. [9] The application also contains an affidavit from her previous lawyer stating that she had instructed her assistant to request the CD. The assistant told her that she had telephoned the RPD on at least three occasions requesting the CD and she informed the RPD that the CD was urgently needed to perfect the appeal. The previous lawyer states that on or about November 19, 2013, a letter was sent to the Refugee Board requesting a copy of the CD. When no response was received from the RPD, another letter was sent on November 21, 2013. The appeal was dismissed on December 16, 2013 and her efforts to have the appeal reinstated by the RAD were unsuccessful. She states that she commenced an application to the Federal Court but then realized that it would be more prudent to withdraw the Federal Court application and for the Applicant to retain another lawyer to pursue her matter. Previous counsel states in her affidavit that the delay was not caused by the negligence of the applicant as the applicant retained her in a timely manner. [10] The applicant submits, through her new counsel, that she retained former counsel promptly and discharged all obligations expected of her, including attending at her former counsel's office to sign the Notice of Appeal within days of receiving the negative decision from the RPD. The applicant submits that the delay that attended the prosecution of her appeal resulted from circumstances beyond her control. She further submits that, at worst, the delay is blamable on her former counsel and/or her employee and/or the RPD. At all material times the applicant relied on the advice and representation by her former counsel. It is argued that the applicant has no blame and no responsibility for the delay. She did what a reasonably prudent claimant would have done by retaining counsel and trusting that her appeal would be pursued without delay on the part of her counsel and/or the Immigration and Refugee Board (IRB) and without a denial of natural justice by the IRB. The applicant submits that there are exceptional circumstances that should warrant allowing this application, namely that she was being represented by the same counsel who was unable to perfect her appeal due to circumstances beyond her control and she had a reasonable expectation that the IRB would not deny her natural justice in light of the fact that it was clear on the face of the record that the delay in perfecting her appeal was not her fault. Analysis [11] The RAD Rules allow for the re-opening of appeals in certain circumstances: 49. (1) At any time before the Federal Court has made a final determination in respect of an appeal that has been decided or declared abandoned, the appellant may make an application to the Division to reopen the appeal. (2) The application must be made in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel's contact information and any limitations on counsel's retainer. (3) The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal. (4) If it is alleged in the application that the person who is the subject of the appeal's counsel in the proceedings that are the subject of the application provided inadequate representation, (a) the person must first provide a copy of the application to the counsel and then provide the original and a copy of the application to the Division, and (b) the application provided to the Division must be accompanied by proof that a copy was provided to the counsel. (5) The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review. (6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice. (7) In deciding the application, the Division must consider any relevant factors, including (a) whether the application was made in a timely manner and the justification for any delay; and (b) if the appellant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made. (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. (9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of appeals, or dismiss the application. [12] Section 171.1 of IRPA provides that: 171.1 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] In this case, the Applicants provided no information to indicate that they have made an application for leave to apply for judicial review. [14] Rule 49(6) 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). Rule 49(7) requires that the RAD consider any relevant factors, including those set out in the Rule. As such, while the RAD can only re-open an appeal if there has been a failure to observe a principle of natural justice, it may reject an application on broader grounds. [15] The applicant filed an affidavit in the first application to reopen the appeal. The affidavit stated that she appealed the claim in a timely manner. However, her lawyer, in attempting to perfect her appeal, required more information which would have been satisfied by information from the transcript of the proceedings. Her lawyer requested a transcript of the proceedings on November 18 and November 21, 2013. On December 4, 2013, the RPD informed her lawyer that the CD of the proceedings was available for pickup. Her office picked up the CD without delay on December 6, 2013. On December 27, 2013 the lawyer's office received notice that her appeal was dismissed for lack of perfection. [16] The current application to reopen the appeal does not come out and directly say that previous counsel was negligent in the handling of the appeal but merely skirts the issue. Previous counsel states in her affidavit that she could not obtain the CD of the hearing from the RPD and appears to shift the blame for the delay in perfecting the appeal to that Division. She does not take direct responsibility for any negligence on her behalf. The applicant has not reported her previous counsel to the Law Society of Upper Canada for negligence. This is one of the requirements that the Federal Court has set out as in claiming that a matter was affected by counsel negligence.1 [17] The applicant was aware on January 7, 2014 that her appeal had not been perfected and in fact had been dismissed for lack of perfection when she swore her affidavit in the previous application. There has been no indication in either application as to the nature of the "vital information" that was not available and could only be discovered by listening to the CD of the RPD hearing. The previous counsel had represented the applicant at the hearing. As of this date, the applicant has not provided an appellant record to the RAD that would indicate the grounds of appeal. As was pointed out in the previous decision for re-opening, the request for the CD was faxed to the RPD after the deadline for perfection of the appeal. The applicant did not make an application to the RAD for an extension of time. These issues have not been dealt with in the current application. [18] Rule 49(8) of the RAD Rules states that the Division must consider the reason for the denial of the previous application and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence. In this case, there are no exceptional circumstances supported by new evidence. The applicant knew at the time she signed the affidavit in the previous application that her lawyer did not perfect the appeal within the 30 days as set out in the regulations to the IRPA. The lawyer did obtain the CD on December 6, 2013 and the appeal was not dismissed initially by the RAD until December 16, 2013. The applicant had sufficient time to ensure that her previous counsel filed her appellant record along with an application for an extension of time prior to the date that the appeal was dismissed. The applicant has to bear responsibility for the counsel that she chose and she continued to retain, even after she knew the appeal had been dismissed for lack of perfection. She has not taken the step to report her counsel to the Law Society of Upper Canada for incompetent representation. [19] The RAD must not allow this application unless it is established that there was a failure to observe a principle of natural justice in the dismissal of the applicant's appeal. It is for the applicant to demonstrate that there has been a breach of natural justice or fairness, and that has not been done. The RAD, therefore, cannot allow this application. CONCLUSION [20] This application is therefore denied. (signed) 'Ken Atkinson' Ken Atkinson July 16, 2014 Date 1 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012; 2012 FC, para. 42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB3-07875