TB5-07407

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 : TB5-07407 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 December 7, 2015 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alesha Green Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Grenada, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal nor does he request an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to allow the appeal, to set aside the decision of the RPD and substitute its own positive decision, or, in the alternative, to refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA) , the RAD refers the matter to the RPD for redetermination by a differently constituted panel. This appeal is allowed. Background [3] The Appellant is a citizen of Grenada who came to Canada in 1999. In 2009 he was acquitted on a charge of XXXX. However he learned from his brother in Grenada that the relatives of the victim would kill him if he returned to Grenada. The Appellant alleges that police could not protect him if he were to return to Grenada. In May 2012, he made a claim for refugee status. His claim was declared eligible to be heard by the RPD on December 14, 2012 but was not referred until December 19, 2012. [4] The Appellant had a hearing before the RPD on February 16, 2015. In a decision dated May 5, 2015, the RPD found that he was neither a Convention refugee nor a person in need of protection. [5] The RAD received a Notice of Appeal on July 20, 2015 which was perfected on the same date and which included an Application to Extend the Time to File or Perfect an Appeal. The Application was granted on July 30, 2015. The Appeal [6] The RAD finds that it has jurisdiction to hear this appeal because it was referred after December 15, 2012 when the provisions of the RAD came into force. However it came to the attention of the RAD that the decision of the RPD which is under appeal was made by a Governor-in-Council appointee of the RPD. Section 169.1(2) of the Immigration and Refugee Protection Act (IRPA) states: 169.1(2) The members of the Refugee Protection Division are appointed in accordance with the Public Service Employment Act. [7] The Balanced Refugee Reform Act (BRRA) transitional provisions indicate the following: 34. A member who is assigned to the Refugee Protection Division under paragraph 159(1)(b) of the Immigration and Refugee Protection Act, as it read immediately before the day on which subsection 19(1) of this Act comes into force, may, if authorized by the Chairperson, remain assigned to that Division. However, the member may hear and make decisions only in respect of claims for refugee protection referred to that Division before that day. [8] In accordance with s. 169.1(2) of the IRPA, the RAD has jurisdiction to decide appeals of decisions that are made by members of the RPD who are appointed according to the Public Service Employment Act (PSEA): 169.1 (1) The Refugee Protection Division consists of the Deputy Chairperson, Assistant Deputy Chairpersons and other members, including coordinating members, necessary to carry out its functions. [9] However the member who decided the claim under appeal was a member described in section 34 of the BRRA. [10] The RAD requested submissions from the parties with respect to this issue. Counsel for the Appellant submitted that whether or not a Governor-in-Council appointee decided the claim is not relevant to the RAD's jurisdiction to decide the appeal, and, therefore, the RAD can decide the appeal. The Minister did not provide submissions. [11] The RAD finds that, because the claim was decided by a Governor-in-Council appointee when it should have been decided by a member of the RPD who was appointed according to the PSEA. The RAD refers the matter back to the RPD to be redetermined. CONCLUSION [12] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. This appeal is allowed. (signed) "Deborah Morrish" Deborah Morrish December 7, 2015 Date RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07407