MB5-00540

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 : MB5-00540 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision July 2, 2015 Date de la décision Panel Me Diane Sokolyk Tribunal Counsel for the person who is the subject of the appeal Me Serban-Mihai M Tismanariu 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 XXXX, (the Appellant), makes an application to the Refugee Appeal Division (RAD) to re-open his appeal of a Refugee Protection Division (RPD) decision on the grounds that although his hearing was held before the RPD on December 5, 2014, he had not received a decision in English from the RPD until June 22, 2015. The Appellant also submits that he has hired new legal counsel and that his former counsel did not represent his interests adequately. He states in an affidavit: 5. I had my hearing, in English, on December 5th, 2014; 6. However, I received the reasons of the decision in my case, in French language, on February 3rd, 2015; 7. The only thing I understood was that my claim was rejected, as the notice of the decision was written in English language; 8. On the same day, February 3rd, 2015, I filed the notice of appeal at the Refugee Appeal Division; 9. On February 10th, 2015, I gave a mandate to Mr. XXXX, the same counsel who represented me for my refugee claim, to represent me in front of Refugee Appeal Division, asking also for the decision in English; 10. The counsel, XXXX, accepted the mandate and he let me know that he will ask for an extension of time in order to perfect my appeal; 11. After that, I called my counselor three times in order to see what was the status of my file, however I never received any updates; 12. On May 6th, 2015, I received the decision from Refugee Appeal Division, in English language, dated April 30th, 2015, rejecting my appeal for lack of perfection; 13. On May 7th, 2015, I went to see my counsel, XXXX, asking for an explanation; 14. He assured me that he was going to look into what was happening with my case; 15. I waited for a week and an half with no news from my counsel; 16. I decided to ask another counsel, Me Serban Mihai Tismanariu, to represent me for my appeal. [2] The Minister was provided with a copy of this application and objects to the re-opening of this file on the basis that there was no failure to observe a principle of natural justice, arguing: 1. The Applicant submits that the Refugee Protection Division failed to provide an English copy of the reasons and decision of the refusal of his refugee claim. He only received the Notice of decision in English but was not aware of the motives of the decision. 2. The applicant chose the English language in response to question 10a) of the Basis of Claim form. His hearing was held in English on December, 4, 2014 and at the time was represented by XXXX, immigration consultant. 3. According to paragraph six of his Affidavit, the applicant received the French reasons on February 3, 2015. He then requested his counsel to file an appeal to the Refugee appeal Division and requested an English copy of the reasons and motives to the IRB. He submits he never received them, however, his appeal had been filed and his counsel is fluent in French and could have explained and filed an application for extension of time to perfect the appeal in accordance with the RAD rules. 4. The Immigration Consultant requested an Extension of time on March 12, 2015, however he was informed by fax his request was dismissed for lack of compliance with Rule 6 of the Refugee Appeal division Rules. 5. Counsel was again advised by the RAD on April 14, 2015, to comply with Rule 6 and 37, and was given until April 22, 2015 to send his application. 6. Paragraph 6 of Section 49 of the RAD Rules stipulates that: (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. The Minister submits that it is alleged in the application that the applicant's initial counsel in the proceedings provided inadequate representation. Hence, a copy of this application should have been sent to M. XXXX, in accordance with paragraph four (4) of Section 49 of the RAD Rules. This has not been done. 8. The Applicant must provide the reasons why an application for leave to apply for judicial review was not made, in accordance with paragraph 7b) of Section 49 of the Rad Rules. 9. The Applicant's counsel was given twice the opportunity to perfect his appeal in accordance with the Reasons and Decision for the Application for Extension of time to perfect an appeal rendered by Board Member Maria de Andrade on April 30, 2015. DETERMINATION OF THE APPLICATION [3] The RAD accepts the application to re-open the Appellant's appeal pursuant to Rule 49 of the Refugee Appeal Division Rules1 (the Rules). BACKGROUND [4] This is a question of re-opening an appeal which was dismissed. Rule 49(6) of the RAD Rules states that the RAD must not allow the application, unless it is established that there was a failure of natural justice. [5] In this file, the appeal should have been perfected on March 9, 2015. On March 12, the RAD received a fax requesting additional time to perfect the file, but this request was not accompanied by an Appellant's Record, as required by RAD rules 6 and 37. The Appellant's immigration consultant was advised of this rule by fax on March 20 and by telephone on April 14, 2015. [6] On April 30, 2015, when the RAD had still not received any documentation from the Appellant's immigration consultant, the RAD rendered a decision dismissing the appeal for lack of perfection. [7] The Appellant hired new counsel on or about May 20, 2015, after allegedly receiving no news from his immigration consultant. The Appellant suggests that his immigration consultant was negligent in performing his duties. As noted by the Minister, there is no proof on the file that the Appellant's immigration consultant was copied with information required in Rule 49(4) of the RAD Rules. [8] Despite this omission, this decision turns on the fact that for a reason unknown to the RAD, the RPD did not supply the Appellant with the reasons for his RPD decision in the language of his choice until June 22, 2015. The RAD finds that it would be a denial of natural justice not to allow the Appellant time to consider the reasons given by the RPD for rejecting his claim and subsequently to consult with his counsel. The RAD rejects the argument of counsel for the Minister that his counsel, who is allegedly French-speaking, could have explained the decision to him. It is not disputed that the RPD hearing was held in English and the Notice of Decision was sent to the Appellant in English. According to the Official Language Act, the Appellant has the fundamental right to read the case against him in the official language of his choice. The Appellant received the decision from the RPD in English on June 22, 2015. DISPOSITION [9] The application to re-open this file is accepted. The Appellant has thirty (30) days from the date of this decision to submit his appeal record. Diane Sokolyk Me Diane Sokolyk July 2, 2015 Date /cl/dlg 1 Refugee Appeal Division Rules, SOR/2012-257. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB5-00540 4