TB5-05579

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 : TB5-05579 Private Proceeding / Huis clos Reasons and decision ? Application to reopen / Motifs et décision - Demande de réouverture Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 18, 2015 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robert Gertler 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the applicant ) asks that the Refugee Appeal Division (RAD) re-open his appeal, which was dismissed by the RAD for lack of perfection. DETERMINATION [2] Pursuant to RAD Rule 49, the RAD denies this application, as the applicant has not established that there was a failure to observe a principle of natural justice when his appeal was dismissed. Background [3] The Refugee Appeal Division received a Notice of Appeal from the applicant on June 1, 2015. The Notice of Appeal indicates that the Refugee Protection Division's (RPD) Notice of Decision was dated May 5, 2015 and received by the applicant on May 15, 2015. The Appeal Record was to be filed on or before June 18, 2015 and was filed on June 29, 2015. The appeal was dismissed for lack of perfection on July 6, 2015. On July 8, 2015, the Notice of Decision was sent to the applicant at his last known address. [4] On July 24 and 29, 2015, the applicant filed this application asking that the Division re-open his appeal. Counsel submits that the appellant's record was received by the RAD within 30 days of when the applicant received the notice that his refugee claim had been rejected. In an affidavit, the applicant states that he did not receive the decision from the RPD until May 31, 2015. This is because he lived in a basement apartment and he does not always receive his mail from the landlord in a timely manner. He states that his counsel submitted a notice of appeal on June 15, 2015 and that on June 29, 2015 his record was also submitted. The applicant submits that in dismissing his appeal for lack of perfection on July 13, 2015, the RAD incorrectly deemed that he received the RPD decision on May 12, 2015 but he did not in fact receive the decision until May 31, 2015. It is also submitted that the RAD incorrectly stated that the record did not include a copy of the RPD decision. It is submitted that dismissing the appeal was a breach of natural justice. ANALYSIS [5] The RAD Rules allow for the re-opening of appeals in certain circumstances: 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 reopen the appeal. (2) The application must be made in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel's contact information and any limitations on counsel's retainer. (3) The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal. (4) If it is alleged in the application that the person who is the subject of the appeal's counsel in the proceedings that are the subject of the application provided inadequate representation, (a) the person must first provide a copy of the application to the counsel and then provide the original and a copy of the application to the Division, and (b) the application provided to the Division must be accompanied by proof that a copy was provided to the counsel. (5) The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review. (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. (8) If the appellant made a previous application to reopen an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence. (9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of appeals, or dismiss the application. [6] Section 171.1 of IRPA provides that: 171.1 The Refugee Appeal Division does not have jurisdiction to reopen on any ground - including a failure to observe a principle of natural justice - an appeal in respect of which the Federal Court has made a final determination. [7] In this case, the applicant has not provided information to indicate that he made an application for leave to apply for judicial review nor has he explained why not as per RAD Rule 49(7)(b). [8] In dismissing the appeal, the RAD found that the applicant filed the appellant's record late and it was not accompanied by an application requesting an extension of time to perfect his appeal. The RAD also notes that the record provided did not comply with RAD rule 3 because it did not include a copy of the RPD decision1 nor set out the remedy it was seeking from the RAD.2 Also a written statement with respect to Sections 110(4) and 110(6) were not provided.3 [9] The applicant submits that the RAD erred in determining that a copy of the RPD decision was not included in the record when in fact it was, a submission with which the present RAD panel agrees. [10] It is submitted by the applicant that the RPD decision was made on May 5, 2015 but that he did not receive the decision until May 31, 2015, a notice of appeal was submitted on June 15, 2015 followed by the record on June 29, 2015. It is submitted that the RAD incorrectly deemed that he had received the RPD decision on May 12, 2015 when in fact he did not receive it until May 31, 2015. [11] In accordance with the amended Immigration and Refugee Protection Regulations, section 159.91(1)(a) provides that the time limit for a person to file an appeal is 15 days after the day on which the person receives the RPD written reasons for the decision and section 159.91(1)(b) provides the time limit to perfect an appeal is 30 days after the day on which the person or the Minister receives written reasons for the decision. [12] The RAD finds that the notice of appeal was received by the RAD on June 1, 2015. This notice of appeal indicates that the date of the notice of decision was May 5, 2015 and that he received these reasons on May 15, 2015. The RAD finds that the original panel correctly deemed receipt of the reasons as being on May 12, 2015 in accordance with RAD Rule 35(2) which states: "A document provided by regular mail other than to the Division or to the Refugee Protection Division is considered to be received seven days after the day on which it was mailed." [13] Therefore the deemed date is May 12, 2015 and if that was not the case, the onus is on the applicant to prove otherwise. However contradictory evidence has been provided with regards to the date. The notice of appeal filed on June 1, 2015 indicates that the notice of decision was dated May 5, 2015 and the reasons were received on May 15, 2015. However another notice of appeal was filed together with the Memorandum which indicates that while the date of the notice of decision was May 5, 2015, it was not received by the applicant until May 31, 2015. Absent any supporting evidence and in light of this discrepancy, the RAD finds that the correct date from which to calculate receipt of the notice of appeal and appellant's record is May 12, 2015. As such the perfected record was due to be received by the RAD on June 11, 2015. It was perfected on June 29, 2105. [14] To date, an application for extension of time to file and perfect has not been received by the RAD, nor had the written statement with respect to Sections 110(4) and 110(6). [15] 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, while the RAD can only re-open an appeal if there has been a failure to observe a principle of natural justice, it may reject an application on broader grounds. [16] The RAD must not allow this application unless it is establihed that there was a failure to observe a principle of natural justice in the dismissal of the applicant's appeal. It is for the applicant to demonstrate that there has been a breach of natural justice or fairness, and that has not been done. The RAD therefore, cannot allow this application. Although the RAD may have overlooked the RPD reasons which were provided with the memorandum, the RAD finds that this gactor alone does not consistitute a failure to observe a principle of natural of justice because there are other unresolved errors and omissions by the applicant. DECISION [17] This application is denied. (signed) "Deborah Morrish" Deborah Morrish September 18, 2015 Date 1 RAD rule 3 (3) (a). 2 RAD rule 3 (3) (g) (iv). 3 RAD rule 3 (3) (d) (i) and (ii). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD. 21.03 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05579