TB7-16659

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 : TB7-16659 TB7-16660 Private Proceeding / Huis clos Reasons and decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX) XXXX XXXX (a.k.a. XXXX XXXX XXXX) Demandeur(s) Respondent(s) Intimé(s) Application considered / heard at Toronto, Ontario Demande instruite à Date of Decision April 13, 2018 Date de la décision Panel Robert Bebbington Tribunal Counsel for the applicant(s) Lina Anani Barrister and Solicitor Conseil (du/des) demandeur(s) Counsel for the respondent(s) N/A Conseil (de l'/des) intimé(s) Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) REASONS FOR DECISION [1] XXXX XXXX XXXX and XXXX XXXX (the "Applicants") ask that the Refugee Appeal Division (RAD) reopen their appeal, which was dismissed by the RAD for lack of perfection. [2] The Minister was provided with a copy of this application on February 5, 2018, but to date, has not responded. Determination [3] Pursuant to RAD rule 49, the RAD denies this application, as the Applicants have failed to establish that there was a failure to observe a principle of natural justice when their appeal was dismissed. Background [4] The RAD received a Notice of Appeal from the Applicants on September 7, 2017. They were appealing a decision of the RPD with a written notice of decision dated August 16, 2017, which was deemed to be received by the Applicants on August 23, 2017. The RPD reasons for decision concluded that the Applicants were not Convention refugees or a persons in need of protection. On September 26, 2017, the Applicants requested an extension of time to perfect their Appeal. This was granted and the Appeal Record was to be submitted on October 9, 2017. In a decision dated December 4, 2017, the RAD dismissed the appeal for lack of perfection because the appellants' record did not comply with RAD Rule 3. Subsequently on February 1, 2018, the RAD received an application to reopen the RAD appeal. There is no evidence before the RAD that the Applicants sought leave and judicial review by the Federal Court. Analysis [5] The RAD Rules allow for the reopening 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. [6] Section 171.1 of the 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. [7] 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 reopen an appeal if there has been a failure to observe a principle of natural justice, it may reject an application on broader grounds. [8] The RAD finds that when the appeal was dismissed, the appeal record was close to two months overdue, having been granted an extension of time on September 26, 2017, indicating that the Appeal Record would be filed on October 9, 2107. The Applicants have submitted documentation indicating that their counsel was ill and only able to work " on an intermittent basis" from October 1, 2017 to November 16, 2017.1 The RAD notes that Counsel for the Applicants submitted a second document to indicate that she was unable to work from December 18, 2017 to December 30, 2017.2 [9] The RAD finds the documentation provided does not explain why the Applicants were unable to provide a perfected Appeal Record or request a further extension of time to perfect their Appeal in the one month period between November 17, 2017 and December 18, 2017. The only explanation offered is that the Applicants advised their Counsel in December (no specific date was provided), that they were anticiating additional documentation in support of the Appeal. [10] The RAD finds that the Applicants' evidence confirms: * Their Counsel was able to work "intermittently" throughout the period between October 1, 2017 to November 16, 2017. * Their Counsel was available to work between November 17, 2017 to December 18, 2017. * The only explanation offered was that the Applicants were seeking to provide additional evidence. The RAD notes that the provision of a perfected appeal record cannot be delayed for the purpose of obtaining new evidence given that RAD rule 29 engages this opportunity after the appeal has been perfected. [11] The RAD further finds that if Counsel for the Applicants was unable to properly assist the Applicants, there was ample oppportunity and time to inform the Applicants, prior to the time when this appeal was dismissed. The RAD notes that Rule 49(7), states that "an Application to Reopen must be made in a timely manner". The RAD notes that the Appellants' Record was to be provided on October 9, 2017. The RAD finds that during the the time period between October 9, 2017 and December 4, 2017, when the Appeal was dismissed, the Applicants have not provided any reasonable explanation as to why they did not contact the Board and advise the RAD of their intention. [12] The RAD finds the Applicants have failed to provide credible evidence that they have shown an intent to proceed with their appeal in a timely manner. 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 Applicants' appeal. It is for the Applicants to demonstrate that there has been a breach of natural justice or fairness, and the RAD finds that this has not been done. [13] The RAD finds that the Applicants have not demonstrated continuous intention to pursue their appeal or that each day of the delay has been justified. There was no breach of natural justice when the RAD decided to dismiss this appeal for lack of perfection. The RAD, therefore, cannot allow this application. DECISION [14] This application is denied. (signed) "Robert Bebbington" Robert Bebbington April 13, 2018 Date 1 Application to Reopen, p. 20. 2 Ibid, p. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.21.03 (May 30, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB7-16659 TB7-16660