TB6-07505

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 : TB6-07505 Private Proceeding / Huis clos Reasons and decision - Administrative Reopening Motifs et decision - Réouverture administrative Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 17, 2016 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jared Will 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 Chris Kinsella Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Appellant"), a citizen of Ethiopia, appealed a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Refugee Appeal Division (RAD) allowed the appeal of the Appellant, referring it back to the RPD for redetermination. DETERMINATION [2] Pursuant to RAD Rules 49 and 53, the RAD reopens its decision, having found that there was a denial of natural justice when the appeal was allowed. Background and Issue [3] The RPD heard this matter on May 3, 2016 and issued its oral reasons on the same day. A transcript of the Reasons for Decision was sent to the Appellant with a notice of decision dated May 20, 2016. The RPD found that the Appellant was not a Convention refugee or person in need of protection. The Appellant then appealed the matter to the RAD by submitting a notice of appeal, which was received by the RAD on June 6, 2016. The appeal was allowed and referred back to the RPD for redetermination by differently constituted panel in the Reasons for Decision dated August 17, 2016. [4] In the RAD decision, the member had failed to take into account the Minister's intervention. Therefore, the RAD sought submissions from the parties as to whether the appeal should be re-opened on its own initiative. The issue before the RAD is whether the appeal should be re-opened. Submissions [5] Counsel for the Appellant submitted that the RAD Rules provide only for an Appellant's right to seek re-opening and therefore, the RAD lacks jurisdiction to re-open. It is also argued that the Minister's Notice of Intervention consisted solely of a request for documents from the Appellant, following receipt of which, submissions would be made. The Appellant was willing to provide the documents at the request of the RAD; however, the Minister did not respond to this suggestion and the time passed until the RAD decision was rendered. [6] The Minister is of the opinion that the RAD has jurisdiction to re-open the appeal on its own initiative. The Minister agrees with the Appellant that there is no specific rule allowing a re-opening to anyone other than the Appellant; however, RAD Rule 52 allows the RAD to do whatever is necessary to deal with a matter and RAD Rule 53 allows the RAD to act on its own initiative. The Minister intervened on the appeal, yet that intervention was not taken into consideration by the decision-maker. [7] In reply, Counsel for the Appellant submitted that neither RAD Rule 52 nor 53 provide jurisdiction for the RAD to re-open the appeal. More specifically, RAD Rule 52 does not provide jurisdiction because it states that the matter must be raised during the proceedings and, in the case at hand, the proceedings have been completed. RAD Rule 53 does not apply because although it provides that the Division may act on its own initiative, this does not confer jurisdiction to that which it could not otherwise do. ANALYSIS [8] RAD Rule 49 states the following at subsection 49(1): 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 re-open the appeal. [9] 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, the RAD can only re-open an appeal if there has been a failure to observe a principle of natural justice. [10] RAD Rule 52 states: In the absence of a provision in these Rules dealing with a matter raised during the proceedings, the Division may do whatever is necessary to deal with the matter. [11] RAD Rule 53 states the powers of the Division: 53. The Division may, after giving the parties notice and an opportunity to object, (a) act on its own initiative, without a party having to make an application or request to the Division; (b) change a requirement of a rule; (c) excuse a person from a requirement of a rule; and (d) extend a time limit, before or after the time limit has expired, or shorten it if the time limit has not expired. [12] The RAD provided notice to the parties and an opportunity to provide submissions on whether the RAD could re-open on its own initiative. [13] The power to re-open, because there has been a failure to observe a principle of natural justice, is an exception to the principle of functus officio. Once a final determination has been made, there is no further jurisdiction to re-visit the decision. However, the Supreme Court of Canada (SCC) in Chandler v. Alberta Association of Architects found that "justice may require the reopening of administrative proceedings in order to provide relief which would otherwise not be available on appeal."1 [14] The RAD agrees with Counsel for the Appellant that RAD Rule 49 is clear that it is the Appellant who has the opportunity to apply to the RAD for a re-opening of an appeal. In the case at hand, the Appellant is the person who is the subject of the appeal. However, the RAD relies upon RAD Rule 52, that the RAD may do whatever is necessary to deal with the matter. While Counsel submits that this rule does not apply because it must concern a matter that was raised during the proceedings and that is not the case because the matter came to light after the RAD decision had been made, the RAD does not agree. The matter was raised during the proceedings because it was during the course of the decision-making process that the Minister's documents were overlooked. Furthermore, because the RAD is a primarily paper-based review, the proceeding describes the actions taken by the RAD from the time of receipt of the notice of appeal to the date of finalization of the reasons for decision. Therefore, if it is found that there was a breach of natural justice; it did occur during the proceedings. [15] The RAD finds that RAD Rule 53 (a) does confer the Division with the power to act on its own initiative to change a requirement of a rule. The RAD is availing itself of this power in deciding that the RAD may re-open an appeal on its own motion. This is because it is incumbent on the RAD to provide a fair proceeding for all parties and, clearly, the proceeding would not be fair if documents submitted by either party were inadvertently ignored by the decision-maker. [16] Having found that the Division may re-open an appeal according RAD Rule 53(a), the RAD applies RAD Rule 53(b) to change a requirement of a rule. The required change is to Rule 49 which applies to the Appellant. In the case at hand, the RAD is changing the rule to allow the RAD, on its own initiative, to re-open the appeal. The RAD must consider whether there has been a failure to observe a principle of natural justice as provided for in RAD Rule 49. The RAD finds that its failure to consider the Minister's intervention amounts to a breach of natural justice for the following reasons. [17] The notice of appeal was received by the RAD on June 6, 2016 and the Appellant's record was perfected on June 24, 2016. Subsequently, an application was made under RAD Rule 29 to admit into evidence a letter from the Chairperson of the Blue Party with translation into English on July 7, 2016. The Minister's Notice of Intervention was received by the Division on July 15, 2016. Although the Minister was not introducing new evidence or asking for an oral hearing at that time, all of the Appellant's original documents including the letter from the Blue Party Chairman to the Appellant and translated on July 7, 2016, as well as all email or postal correspondence between the Appellant (and/or his family) and the Chairman of the Blue Party were being requested. The intervention also states that the Minister may send these documents for verification as to their genuineness, after which he would be in a better position to provide submissions. [18] On July 19, 2016, the Division received the Appellant's response to the Minister's letter stating that the Appellant was awaiting instructions as to how he could provide the original documents to the RAD. The letter also stated that the Appellant was under no obligation to provide these originals to the Minister unless ordered to do so by the RAD. However, there was no further instructions or correspondence until the RAD decision, which allowed the appeal, referring it back to the RPD for reconsideration, was issued on August 17, 2016. In paragraph 4 of the RAD decision, the member states that as of the date of the decision, the Minister had not intervened in the appeal. [19] It has subsequently come to the attention of the RAD that the Minister's intervention had not been considered and therefore, submissions were requested from the parties as to whether the RAD should re-open the appeal. [20] As pointed out by Appellant's counsel in his submissions on re-opening, the Appellant had responded to the Minister's Notice of intervention on July 19, 2016, indicating that he would provide any documents at the request of the RAD. This reiterates paragraphs 10 and 11 in the Appellant's affidavit2 as follows: 10. I reiterate that I am now able to provide the originals of all of these documents, and will do so upon request. 11. My lawyer has advised me that the Refugee Appeal Division [RAD] has no established process for dealing with original documents filed in an Appeal Record, and we therefore retain the originals on file but will provide them to the RAD upon request. [21] Although the Appellant had offered to provide original documents at the time when his appeal was perfected on June 23, 2016, the RAD failed to respond to the Minister's request for original documents. The RAD finds that the administrative error which resulted in the RAD's failure to consider the Minister's request amounts to a breach of natural justice. CONCLUSION [22] The RAD concludes that there was a breach of natural justice and therefore re-opens the appeal. The appeal will be reconsidered in its totality by a different decision-maker. (signed) "Deborah Morrish" Deborah Morrish November 17, 2016 Date 1 Chandler v. Alberta Association of Architects, [1989] 2 SCR 848; (1989), 62 D.L.R. (4th) 577 (S.C.C.); (1989), 40 Admin. L.R. 128 (S.C.C.). 2 Appellant's record, p.12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07505