TB1-06774

RPD File No. / N° de dossier de la SPR : TB1-06774 Private Proceeding / Huis clos Application to Reopen Reasons and Decision ? Motifs et decision Applicant(s) XXXX XXXX XXXX Requérant(e)(s) Date(s) of Motion to Reopen May 11, 2012 Date(s) de la demande de Réouverture Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision September 20, 2012 Date de la décision Panel Cynthia L. Summers Tribunal Counsel for the Applicant(s) Aadil Mangalji Barrister and Solicitor Conseil du / de la / des Requérant(e)(s) Tribunal Officer Agent(e) de tribunal Designated Representative(s) Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre [1] I have reviewed the applicant's motion to reopen his claim, received by the Refugee Protection Division (herein "the RPD") on September 12, 2012, requesting that his claim which was decided on May 25, 2012 be reopened1. Upon reviewing Rules 44 and 55 of the Refugee Protection Division Rules, as well as the relevant case law, the following is my decision. [2] The applicant states that his application to re-open his claim is based on the principles of natural justice, and specifically that the "applicant was denied natural justice and a fair hearing through the ineffective assistance of his counsel at the Refugee Protection Division hearing."2 The applicant also alleges that he should have been assigned a Designated Representative pursuant to the Immigration and Refugee Protection Act, section 167(2) which provides for the appointment of a designated representative for any person who is the subject of proceedings before a division of the IRB where the person is under 18 years of age or unable, in the opinion of the applicable division, to understand the nature of the proceedings. [3] The Refugee Protection Division Rules, section 15 also address the circumstances in which the designation of a Representative is required during RPD proceedings. [4] The applicant states in his motion to re-open his claim that his correct date of birth is XXXX XXXX XXXX 1995. He alleges that at the time of his RPD hearing on May 11, 2012 he was only seventeen years old and therefore should have been appointed a Designated Representative.3 [5] I note that the applicant arrived in Canada on XXXX XXXX, 2011 and immediately made a claim for refugee protection.4 [6] When completing documentation for Citizenship and Immigration Canada the applicant identified his date of birth as XXXX XXXX XXXX 1993.5 [7] In his Personal Information Form (herein "the PIF") he also declared that his date of birth was XXXX XXXX, 1993.6 I note that at the time his PIF was completed the applicant declared that he was represented by legal counsel.7 [8] As noted above, the motion to re-open arises from the applicant's objection to the RPD not designating a Designated Representative for the purposes of the RPD hearing. [9] However I note having reviewed the totality of evidence put before me, including the Reasons and Decision of the Member, that the issue of the applicant's age was considered in a fulsome and complete manner by the RPD when making a decision regarding the need for a Designated Representative. [10] In the Reasons and Decision the Member addressed the issue of the age of the applicant and made a finding of fact, on a balance of probabilities, on the basis of the evidence before him, that the applicant's date of birth was XXXX XXXX, 1993, as noted on the applicant's PIF, documentation provided to CIC and the passport provided to the RPD in support of applicant's identity.8 The Member addressed the issue and the evidence put forth in paragraphs 4 through 12 of his decision and found that the applicant was not a minor and that he was capable of understanding and participating in his RPD hearing. [11] I note that the applicant had from April 2011 when he made his claim for refugee protection until May 2012 in order to obtain evidence regarding his identity and age. He was represented by legal counsel since his PIF was completed, one year prior to his hearing. [12] In this application I note the presence of emails and inquiries made in regard to this applicant in September 2012 and other recent efforts made to obtain information regarding the applicants' age.9 There is insufficent evidence put forth that these inquiries and information could not have reasonably been made prior to the applicant's RPD hearing. Furthermore one of the documents suggests that the applicants' parents, on his behalf could have obtained official documents regarding his date of birth from the Namibia Home Affairs office.10 This action does not appear to have been taken by the applicant or his legal representatives. [13] I note that the applicant was represented by legal counsel during his refugee protection application process and that this legal counsel represented the applicant during his RPD hearing. I further note that while the applicant's current counsel alleges that the previous counsel was ineffective, there is nothing put forth to suggest that the applicant has filed a formal complaint with the Law Society of Upper Canada. [14] It is clear from the record that the Member considered the arguments and submissions put forth by previous counsel in regard to the issue of the alleged need for a designated representative and the Member found that the applicant was competent to proceed with the hearing of his claim without the assistance of a designated representative. [15] It was open to counsel to apply for leave to the Federal Court to commence an application for judicial review of the RPD decision, which counsel did. However leave was subsequently dismissed due to the failure of the applicant to file an application record.11 [16] In determining whether or not to grant the applicant's request I am bound by Rule 55 and must determine whether or not there has been a "failure to observe a principle of natural justice by the RPD." [17] I determine that there has been no failure to observe a principle of natural justice by the RPD in these circumstances. [18] I find that the applicant, with the assistance of legal counsel, was given the opportunity to present his case before the RPD in accordance with the principles of natural justice. [19] The request to re-open the claim of the applicant is dismissed. (signed) "Cynthia L. Summers" Cynthia L. Summers September 20, 2012 Date REFUGEE PROTECTION DIVISION / APPLICATION / REOPENING / FEDERAL COURT / APPLICATION FOR LEAVE / DISMISSED / INCOMPETENCE OF COUNSEL / FALSE STATEMENTS / AGE / DESIGNATED REPRESENTATIVE / NATURAL JUSTICE / MALE / NEGATIVE / NAMIBIA 1 Motion Record, received by the RPD on May 25, 2012. 2 Motion Record, page 2. 3 Motion Record, "Affidavit of XXXXXXX, page 13. 4 Personal Information Form page 8. 5 Claim for Refugee Protection in Canada" Form 5611, Citizenship and Immigration Canada, page 1. 6 Personal Information Form page 2. 7 Personal Information Form page 12. 8 Copy of a "Republic o Namibia" passport, issued March 7, 2011, stamped "Certified True". 9 Motion Record, pages 31 - 40. 10 Motion of Record, page 37. 11 XXXXXXX XXXX, Justice J. Shore, IMM-XXXXXXXXXXXXX, 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. / N° de dossier de la SPR : TB1-06774 RPD File No. :TB1-17303