MB6-01553

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. / No de dossier de la SAR : MB6-01553 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 29, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Serban Mihai 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 Appication to Reopen [1] In this case, the Refugee Appeal Division (RAD) dismissed the appeal in a decision dated April 25, 2016, because the record had not been perfected within the prescribed time limit set out in paragraph 159.91(1)(b) of the Regulations Amending the Immigration and Refugee Protection Regulations and subrule 3(5) of the Refugee Appeal Division Rules (RAD Rules), that is, within 30 days after the day on which the person receives the reasons for the decision of the Refugee Protection Division. In this case, the time limit to perfect the appeal was April 15, 2016. [2] On April 26, 2016, the appellant sent the RAD, through his counsel, his appellant's record. The RAD Registry returned that appellant's record to him on April 27, 2016, given the final decision rejecting the appeal rendered on April 25, 2016. [3] On July 19, 2016, the appellant, through his new counsel, sent the RAD an application to reopen his appeal. [4] In his application, the appellant explains that on April 20, 2016, his previous counsel filed before the RAD [translation] "written submissions" relating to his file, and that he would deal with "resolving the issue" with respect to the RAD's decision to reject his appeal for failure to perfect. The RAD did not subsequently receive any application from counsel. [5] The appellant indicates that he was summoned by the Canada Border Services Agency on July 8, 2016, and that he was informed that he had to leave the country on July 28, 2016. He therefore filed the present application to reopen. [6] I am of the opinion that the application to reopen must be dismissed, for the following reasons. [7] The application to reopen does not comply with the criteria set out in rule 49 of the RAD Rules: first, at subrule 49(4) in the sense that the appellant did not provide the application to his previous counsel, whom he accuses of having provided him with inadequate representation by informing him that he [translation] "would resolve the issue" of the rejection of the appeal for failure to perfect before the RAD, which he apparently did not do; then, at paragraph 49(7)(b) in the sense that the appellant did not explain why he did not file an application for judicial review. [8] One of the appellant's arguments is that his previous counsel filed before the RAD "written submissions" on April 20, 2016, a document that he re-filed with the present application to reopen. Thus, it appears that the RAD rejected the appeal after the filing of these "written submissions," which in fact form the appellant's record. I cannot accept this argument: it appears clearly on this document that it was filed before the RAD on April 26, 2016, that is, the day after the rejection of the appeal, and not on April 20, 2016, as the appellant claims. [9] Finally, and even more importantly, under subrule 49(6) of the RAD Rules, the RAD can allow the application to reopen if it is established that there was a failure to observe a principle of natural justice. [10] I am of the opinion that the appellant did not establish, in the present application, that there would have been a failure to observe a principle of natural justice. The only argument presented to this effect is that the appellant's record was apparently submitted on April 20, 2016, that is, before the rejection of the appeal. I explained earlier that I cannot accept that argument and I do not personally see what other failure to observe a principle of natural justice would have occurred in this case. [11] In light of the foregoing, the application to reopen is dismissed. Normand Leduc Normand Leduc July 29, 2016 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MB6-01553 3 RAD.25.02 (2014.09.11) Disponible en français