TB9-23242

RAD File / Dossier de la SAR : TB9-23242 TB9-23249 Private Proceeding / Huis clos Reasons and Decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Demandeur(s) Respondent(s) Minister of Immigration, Refugees and Citizenship Canada Intimé(s) Application considered / heard at Toronto, ON Demande instruite à Date of Decision March 22, 2021 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the applicant(s) Andrew Brouwer Conseil (du/des) demandeur(s) Counsel for the respondent(s) N/A Conseil (de l'/des) intimé(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) REASONS FOR DECISION Overview [1] The Applicants, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX request that the Refugee Appeal Division (RAD) reopen their appeal, which was dismissed by the RAD in a decision February 13, 2020. Decision [2] The reopening is dismissed. Background [3] The RAD received an application to reopen the appeal on October 13, 2020. However, due to an administrative error with the RAD processes, the reopening application is only being considered now. [4] The Applicants came to Canada in March 2018. Their refugee claims were considered by the RPD, who rejected their claim in a decision dated August 7, 2019. Their appeal was considered by the RAD and dismissed in a decision dated February 13, 2020. [5] The Applicants argue that their former counsel who represented them during their RAD appeal failed to inform them that they were able to submit new evidence are part of their appeal. They indicate that they only learned they could do this after their appeal was dismissed. They argue that this is breach of natural justice. [6] As part of their reopening application they submit five new documents: 1. Field Investigator Report issued XXXX XXXX, 2020; 2. Letter from XXXX XXXX XXXX XXXX, issued XXXX XXXX, 2020; 3. Ombudsman office letter issued XXXX XXXX XXXX 2020; 4. Letter from XXXX XXXX XXXX XXXX issued XXXX XXXX, 2020; 5. Employment certificate issued XXXX XXXX, 2020. [7] The Applicants submit that all of this evidence would have been submitted earlier, and the Applicants would have requested them sooner, had their counsel informed them that this was possible. [8] The Applicants ask the RAD to allow their application for a reopening of their appeal. Analysis [9] The RAD Rules allow for the reopening of appeals in certain circumstances. In this case, the Applicants argue that there was a breach of natural justice. [10] Sub-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. Sub-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 reopen an appeal if there has been a failure to observe a principle of natural justice, it may reject an application on broader grounds. [11] In this case, the Applicants argue that there was a breach of natural justice when their appeal was dismissed. [12] The allegations the Applicants make are subject the Practice Notice on Allegations Against Former Counsel1. The Practice Notice sets out the steps to take when making allegations against former counsel. [13] These include: Steps to take when allegations are made in an application to reopen a case: 10. If a case is completed, an application to reopen a case must be made using the steps set out in the rules that apply to the Division, namely, the RPD Rules, the RAD Rules, the ID Rules or the IAD Rules. 11. Where the person alleges that they have been inadequately represented by their former counsel, the person must first provide former counsel with: a. a copy of the application to reopen; b. a written notice that former counsel has ten days from receipt of the application to provide a written response to the person, to the Minister, and to the applicable Division; c. a signed authorization releasing any privilege, including solicitor-client privilege, to the extent necessary to allow former counsel to respond to the allegations; and d. a copy of this Practice Notice or information describing where this Practice Notice can be found on the IRB website. 12. The person must then provide to the Division a copy of documents (a) to (c) above, as well as proof that the documents (a) to (d) above have been provided to the person's former counsel. 13. Former counsel who intends to respond to the allegations must provide a written response to the person, to the Division, and to the Minister no later than ten days after receiving the allegations. 14. The person may provide a written reply to the Division, accompanied by proof that this reply was first provided to former counsel and to the Minister. The written reply must be provided no later than five days after the person received former counsel's response. [14] The Applicants notified former counsel of their allegations and provided former counsel with a copy of the reopening application on September 30, 2020.2 There is also evidence that there was an additional communication with former counsel via fax on October 13, 2020 that included a signed waiver, following what appears to be a telephone conversation between current and former counsel. [15] To date, it has been five months since this last communication and there is no response from former counsel with respect to the allegations. [16] I do note that the former counsel was not provided with a copy of the Pratice Notice, as required. However, I find this to be a minor oversight. [17] I have reviewed the evidence before me and do not find that there was breach of natural justice in this case. I have weighed the Applicants allegations against the evidence before me that includes the RAD appeal record, which I have reviewed. As part of the original RAD appeal record, received by the RAD November 1, 2019, the former counsel did provide a statement on new evidence and an oral hearing,.3 The evidence before me is that former counsel was aware of the possibility of submitting new evidence and complied with the requirements of including a written statement on new evidence , as indicated in the Appellant's Guide4. [18] In my view, there is insufficient evidence to establish that there was a breach of natural justice. The record before me is that former counsel was aware of and spoke to the new evidence issues in the appeal. The Applicants submission that they were not informed is not sufficient to find a breach and allow a reopening in this case. [19] In my view, the Applicants were afforded a full appeal and their former counsel complied with the requirements when she filed their appeal. I see no issue related to a breach of natural justice at the time their appeal was dismissed and therefore, I dismiss this application. (signed) Nadra Qadeer Nadra Qadeer March 22, 2021 Date 1 Effective September 10, 2018. 2 Reopening Application, at p. 39. 3 RAD Appellants' Record, at p. 30. 4 Appellant's Guide - Immigration and Refugee Board of Canada (irb-cisr.gc.ca). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.21.02 (November 2020) Disponible en français Page 1 of 2 RAD File/Dossier de la SAR : TB9-23242 TB9-23249