VC1-04668

RAD File No. / No de dossier de la SAR : VC1-04668 VC1-04669 Private Proceeding / Huis clos Reasons and Decision ? Application to Reopen Motifs et décision - Demande de réouverture Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Date of decision April 29, 2022 Date de la décision Panel Me Kristine Plouffe-Malette Tribunal Counsel for the persons who are the subject of the appeal Rajwinder Singh Bhambi Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION APPLICATION TO REOPEN OVERVIEW [1] On June 15, 2021, the Refugee Protection Division (RPD) rejected the refugee protection claims of XXXX XXXX XXXX and XXXX XXXX XXXX (the appellants). [2] On July 9, 2021, a notice of appeal was filed with the Refugee Appeal Division (RAD). The male appellant's record should have been filed by August 9, 2021. [3] On August 26, 2021, the RAD dismissed the appellants' appeal on the grounds that the male appellant's record had not been perfected within the prescribed timelines. [4] On March 17, 2022, Maria Esposito (the former counsel), presented to the RAD an application to reopen the appeal, along with the male appellant's record. The former counsel states in her sworn affidavit appended to the application to reopen that she was unable to submit the male appellant's record within the prescribed timelines due to health problems, a heavy workload and an issue with sending the documents. [5] A copy of the application was sent to the Minister on March 18, 2022. The Minister did not object to the application to reopen. [6] The same day, namely March 17, 2022, the RAD received a notice from Rajwinder Singh Bhambi (the counsel) stating that he was the new counsel in the case and that the former counsel's retainer had been revoked. [7] On April 12, 2022, the RAD sent the counsel and the appellants a notice giving them the opportunity to make submissions regarding the application to reopen filed by the former counsel on March 17, 2022. [8] On April 17, 2022, the counsel sent the RAD his submissions and an additional memorandum. The counsel submits that the former counsel inadequately represented the appellants. The counsel sent copies of the documents to both the Minister and the former counsel on April 17, 2022. [9] Neither the Minister nor the former counsel provided responses the day this decision was signed. DECISION [10] The application to reopen the appeal is allowed. APPLICABLE RULES [11] According to rule 49 of the Refugee Appeal Division Rules (RAD Rules), an appeal may be reopened only in certain circumstances: (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. [12] Furthermore, under subrule 49(4) of the RAD Rules, if it is alleged in the application to reopen an appeal that the appellant's counsel "in the proceedings that are the subject of the application provided inadequate representation," a copy of the application must first be provided to the counsel, and the application provided to the RAD must be accompanied by proof that a copy was provided to the counsel. [13] Lastly, the person who is the subject of the appeal who is making allegations against counsel to establish inadequate handling of his RAD appeal must comply with the procedure adopted by the Immigration and Refugee Board of Canada under the Practice Notice - Allegations Against Former Counsel.1 ANALYSIS [14] First, it should be noted that this application made by counsel complies with the requirements of the Practice Notice. The RAD did not receive any response to these allegations from either the former counsel or the Minister. [15] Second, this application demonstrates both the appellants' diligence in pursuing their appeal and the former counsel's lack of diligence and negligence in the handling of this case. What is more, the former counsel's inaction had the potential to cause substantial prejudice to the appellants and resulted in a significant breach of the principles of natural justice. [16] According to the additional submissions presented by counsel, upon receiving the RPD's negative decision on June 23, 2021, the appellants signed a notice of appeal with the help of their former counsel and paid the fees she charged. The former counsel submitted their notice of appeal to the RAD on July 7, 2021. [17] The appellants were shocked to learn that their appeal was dismissed on August 26, 2021, for lack of perfection of their record. They contacted their former counsel, who assured them that it was an error on her part. She stated that she had experienced health problems and was overwhelmed with work. She reassured them by telling them that they should not be overly worried because she was going to file an application to reopen along with the appeal record. [18] In mid-September 2021, the appellants went to their former counsel's office in Mississauga, Ontario, to discuss-once again-their application to reopen. She reassured them yet again by telling them that the application had been prepared and would soon be submitted to the RAD. [19] From September 2021 to March 2022, the appellants were in regular contact with their former counsel to check on the status of their application to reopen the appeal. They submit that, each time, she confirmed to them that the application had been made, along with the appeal record, and that they would now have to wait for the RAD's decision. [20] On March 14, 2022, the appellants received a notice from the Canada Border Services Agency requesting that they go to their office on March 24 for an interview ahead of their removal from Canada. [21] On March 16, 2022, the appellants met with their former counsel, this time at her office in Montréal, Quebec. She then told them that she had filed their application to reopen along with the appeal record on March 9, 2022. They report that she tried to justify the delay in filing their application on the basis of her health problems, as well as being overwhelmed with work and having encountered problems with the documents. She explained to them that she had recruited three individuals to work with her at her practice. [22] Dissatisfied, the appellants decided to retain their current counsel on March 17, 2022. The same day, the counsel filed an application with the RAD to find out the status of the case and to confirm that he would now be serving as counsel in this case. [23] The RAD did in fact receive the application to reopen along with the appeal record from the appellants' former counsel on March 17, 2022. Upon verification, it appears that on March 9, 2022, the former counsel had sent the application to reopen and the appeal record to the wrong fax number, sending the two documents to Immigration, Refugees and Citizenship Canada's Humanitarian Migration office or the pre-removal risk assessment office in Vancouver. This public information is easily accessible online. With no news from the RAD, the former counsel telephoned the RAD registry in Vancouver on March 16, 2022, and was given confirmation that no application had been received. Consequently, the former counsel submitted both the application to reopen and the appeal record on March 17, 2022, this time via Internet. [24] It should be noted that the memorandum of appeal presented in support of the application to reopen was signed and dated November 30, 2021. [25] On March 24, 2022, the appellants appeared at their pre-removal interview and explained to the officer that they had filed an application to reopen their RAD appeal. He confirmed to them that should their application be dismissed, their removal to India would be imminent. [26] On April 12, 2022, after reviewing the application to reopen, the RAD gave the appellants and their counsel the opportunity to make additional submissions regarding the application, which was done on April 17, 2022, in accordance with the Practice Notice. [27] Ultimately, the appellants rightly argued that the only reason for which their RAD appeal had not been perfected within the prescribed timelines was due to inadequate representation from their former counsel. This also explains the delay in filing their application to reopen. [28] Given the lack of a response from the former counsel, the only explanations she has provided to justify filing the application to reopen on March 17, 2022, are recorded in a sworn affidavit dated March 9, 2022. However, it mentions several justifications and arguments that are inconsistent with the information on the record to explain the delay in filing the application to reopen and the appeal record. Specifically, the former counsel states the following: [translation] "I have not resolved my problems with refugee files, there are three counsels who will be handling my files. I have also hired a responsible person who started training this week and will start working as of January 31. I can therefore assure you that I will be personally responsible for my portal, and will make sure that everything is filed within the time limits. I should no longer have any delays as of February 1 [2022] [sic]." As a reminder, this affidavit was signed on March 9, 2022, in a record due on August 9, 2021, and it mentions that all delays will be handled by February 1, 2022. These dates are all inconsistent. [29] The former counsel states that she had health problems that she neither established nor explained. This argument cannot be accepted in the context of this case. [30] Lastly, the former counsel further notes in this affidavit that she had problems sending the documents that had allegedly been printed a few days earlier. Yet the information on the record clearly shows that the former counsel discovered the problem with respect to sending the application to reopen and the appeal record on March 16, 2022, when she had contacted the RAD registry in Vancouver. This argument is inconsistent with the information on the record. [31] In light of the facts above and the evidence on the record, the RAD is of the opinion that the appellants were clearly inadequately represented by their former counsel as she had missed important deadlines that could have resulted in the appellants' removal without their appeal being heard, even though they had the right to it. [32] After considering the entire record, the RAD is of the opinion that the appellants have demonstrated that there was a failure to observe a principle of natural justice since they did not have the opportunity to file an appeal on account of inadequate representation from their former counsel. [33] In light of the specific circumstances in this case, the application to reopen was filed in a timely manner. [34] The application to reopen the appeal is therefore allowed. CONCLUSION [35] The application to reopen the appeal of XXXX XXXX XXXX and XXXX XXXX XXXX is allowed. [36] The male appellant's record is deemed to have been perfected. (signed) Kristine Plouffe-Malette Me Kristine Plouffe-Malette April 29, 2022 Date IRB translation Original language: French 1 Practice Notice - Allegations Against Former Counsel, September 10, 2018. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : VC1-04668 VC1-04669 RAD.25.02 (August 20, 2021) Disponible en français 7 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 (August 20, 2021) Disponible en français