VB8-03714

RAD File / Dossier de la SAR : VB8-03714 Private Proceeding / Huis clos Reasons and Decision ? Application to re-open / Motifs et décision - Demande de réouverture Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision April 15, 2019 Date de la décision Panel Paula Faber Tribunal Counsel for the person who is the subject of the appeal David Matas Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (Applicant), a national of Ethiopia, makes an application to the Refugee Appeal Division (RAD) to re-open his appeal of a Refugee Protection Division (RPD) decision. [2] The Minister was provided with a copy of this application on March 26, 2019, but has not responded. DETERMINATION OF THE APPLICATION [3] The RAD denies the Application to Re-open the Applicant's appeal, pursuant to RAD Rule 49(8) of the Refugee Appeal Division Rules (RAD Rules).1 BACKGROUND [4] The Refugee Appeal Division (RAD) received on July 17, 2018 a Notice of Appeal from the decision of the Refugee Protection Division (RPD) in the claim of the Applicant. The Notice of Appeal indicated that the Applicant received the RPD reasons on the same day, July 17, 2018. [5] The Applicant's Record was due on August 16, 2018. As no further communication was received from former counsel or the Applicant, the appeal was dismissed for lack of perfection on September 10, 2018. [6] On March 20, 2019, the RAD received the Applicant's Application to Re-open the Appeal with a copy of the Appellant's Appeal Record submitted by the applicant's new counsel. [7] The Applicant requests that his appeal be re-opened. Analysis [8] RAD Rule 49 allows the Applicant to make an application to the RAD to re-open their appeal. Under RAD Rule 49(6), the RAD must not allow the application to re-open unless it is established that there was a failure to observe a principle of natural justice. [9] RAD Rule 49(7) stipulates: 49(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 applicant 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. [10] The test to meet in an application to re-open an appeal was considered by the Federal Court in Omokri:2 [29] The RAD Rules are clear that an application to re-open an appeal before the RAD requires a person to show that the dismissal of an appeal was made in breach of natural justice. The alleged breach of natural justice must be established vis à vis the RAD panel that dismissed the Applicant's appeal. [11] In the present case before me, I find that none of the reasons offered by current counsel to justify re-opening the appeal, amount to a denial of natural justice vis à vis the RAD decision that dismissed the Applicant's appeal. [12] The RAD dismissal of the appeal was mailed to the Applicant and to his former counsel on September 12, 2018. On March 20, 2019, the RAD received the Applicant's Application to Re-open the Appeal. Current counsel has made no argument that this application was submitted in a timely matter. I find that the Applicant did not make this application in a timely manner given that the appeal had been dismissed by the RAD more than six months before making this Re-opening Application. [13] In the Re-opening Application, current counsel did not make any statement as to whether or not the Applicant filed an Application for Leave and Judicial Review at the Federal. [14] I also note that while the Minister was served with the Applicant's Application; the Minister takes no position. However, RAD 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." Grounds for this re-opening application [15] Current Counsel submits that the appeal was dismissed in breach of natural justice for the following reasons: * Former counsel was overwhelmed with a transfer of files from another lawyer; * Former counsel was diligent in trying to obtain extensions of time, his being overwhelmed can be characterized as an error, thereby resulting in a breach of natural justice; * The Applicant is entitled to make submissions with regard to his appeal and is entitled to be heard; * The continuing intention of the applicant to appeal the decision of the RPD denying his refugee claim; * There is no prejudice to the IRB or the Minister. [16] In support of the application is an affidavit from the Applicant, sworn March 17, 2019. Other evidence in support of the application includes an affidavit of a student working in the office of former counsel Matas, along with supporting material. [17] The student affiant describes the circumstances leading to a failure to perfect the appeal, including: the influx of files to the office of former counsel Matas due to a transfer of files from a different counsel; an increased volume of refugee claimants arriving in Manitoba with very few lawyers able and willing to take on refugee appeals. [18] The student affiant states that the Applicant was told that counsel might not be able to complete the appeal record within the regulated time limit, and advised him to seek other counsel. [19] The Applicant states in his affidavit that he was never told by anyone in his former counsel's office to find new counsel. [20] The Applicant has been represented by counsel throughout this process. While he states that he lost confidence in his former counsel, he does not raise any allegations about inadequacy of counsel so there is no other ground for finding a possible breach of natural justice due to serious inadequate representation. [21] The Applicant moved to Toronto at some point following the dismissal of his appeal in September 2018. In January 2019, he states that he met with new counsel and asked about reopening his appeal. On March 20, 2019, the application to Re-open the appeal was received by the RAD. No breach of natural justice [22] Under all these circumstances, arguments being made would imply that the legislated timelines for submitting and perfecting the appeal to the RAD are of no consequence. This is clearly not the intent of the legislation. I find that denying this Re-opening Application would not constitute a prospective breach of natural justice. [23] The arguments are based on the lack of legal counsel to prepare the appeal record within the required timelines. However, appellants at the RAD are not required to have legal counsel represent them in their appeal. Should appellants decide that they want counsel to help them, appellants are responsible for hiring and paying counsel who is available and able to meet the time lines require [24] Waiting for legal aid is not a valid reason to delay taking the necessary next steps in an Immigration and Refugee Board proceeding, as in this RAD appeal to perfect the appeal.3 Whether or not appellants hire counsel, appellants are responsible for ensuring they and their counsel meet the applicable time limits. [25] Appellants do not have an unqualified right to be represented by legal counsel in an appeal. Being unable to be represented by legal counsel does not equate to denial of natural justice.4 In the circumstances outlined above, I cannot find that there was a violation of the principles of natural justice. [26] The issue is whether there was a failure to observe a principal of natural justice in dismissing the appeal in this particular case. Jurisprudence sets out that the concept of natural justice or procedural fairness varies according to the circumstances of the case.5 The unique features of a case should be taken into consideration in determining if natural justice was denied. In this particular case, natural justice requires that the Applicant be given the opportunity to explain why they did not perfect their appeal within the required time. I find that the Applicant has not adduced persuasive evidence that there was a failure to observe natural justice by the RAD. [27] Timelines for the submission of appeals and the perfection of such appeals are imposed in the relevant legislation. Section 110(2.1) of the Immigration and Refugee Protection Act6 stipulates that the appeal must be filed and perfected within the time limits set out in the regulations. Under section 159.91(1)(b) of the Immigration and Refugee Protection Regulations,7 the time limit for a person to perfect the appeal is 30 days after the day on which the person receives written reasons for the RPD decision. While the Applicant did make a previous application to extend the deadline to perfect his appeal for an undefined period of time, the appeal was dismissed on September 10, 2018 in the absence of any further communication from the Applicant. The appeal was dismissed 25 days after the expected perfection date. Under the circumstances outlined above, I find that this does not constitute a premature dismissal of the appeal or a breach of natural justice or a failure to adhere to principles of procedural fairness. [28] I find that the Applicant has not provided any evidence that there was a failure to observe a principle of natural justice when the appeal was dismissed for lack of perfection. Accordingly, the Applicant's Re-opening Application is dismissed. (signed) "Paula Faber" April 15, 2019 Date 1 Refugee Appeal Division Rules, SOR/2012-257. 2 Omokri v. Canada (Citizenship and Immigration), 2018 FC 970. 3 See Section 3.12 (Legal Aid) of the Immigration and Refugee Board's Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding, effective April 1, 2010, Amended December 15, 2012: 3.12.1 The fact that a party is waiting for an application for legal aid to be approved is not generally a sufficient reason to allow an application to change the date or time of a proceeding. (Flores Cabrera, Luis Enrique v. M.C.I. (F.C., no. IMM-3751-11), Zinn, November 2, 2011; 2011 FC 1251). However, members may consider delays in the processing of legal aid applications that were beyond the control of the party. 4 British Columbia (Attorney General) v. Christie, 2007 SCC 21. 5 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. 6 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 7 Immigration and Refugee Protection Regulations, SOR/2002-227. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-03714 RAD.25.02 (April 04, 2018) Disponible en français 6 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.25.02 (April 04, 2018) Disponible en français