TB8-25012

RAD File / Dossier de la SAR : TB8-25012 Private Proceeding / Huis clos Reasons and Decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) XXXX 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 13, 2019 Date de la décision Panel Robert Bebbington Tribunal Counsel for the applicant(s) Michael F Loebach Barrister and Solicitor 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 [1] XXXX XXXX XXXX XXXX (the "Applicant") asks that the Refugee Appeal Division (RAD) reopen 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 failed to establish that there was a failure to observe a principle of natural justice when his appeal was dismissed. Background [3] The RAD received a Notice of Appeal from the Applicant on October 4, 2018. The perfected Appeal Record was to be filed on or before October 22, 2018. No further documents were received and the appeal was dismissed for lack of perfection on December 4, 2018. That Notice of Decision was sent to the Applicant at his last known address on December 12, 2018. [4] On February 7, 2019 the Applicant submitted a completed Appellant Record and a request for an extension of time as components of a request that the Division reopen his appeal. ANALYSIS [5] The RAD Rules allow for the reopening 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 the 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. [Emphasis added] [7] 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 reopen an appeal if there has been a failure to observe a principle of natural justice, it may reject an application on broader grounds. [8] The RAD must not allow this application, unless it is established 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. [9] The RAD finds that, when the appeal was dismissed, the appeal record was six weeks overdue. The Division allowed extra time to perfect before dismissing his appeal, but it received no further correspondence from the Applicant. It appears the Applicant sought new counsel on October 29, 2018. The RAD notes the Applicant has provided a detailed timeline of interactions with his new counsel in the Extention of Time (EOT) application accompanying the application to reopen his appeal up to December 24, 2018. The RAD notes the Applicant has submitted a report from a psychologist which indicates he displays symptoms consistent with XXXX XXXX XXXX XXXX XXXX XXXX XXXX and the Applicant submits this explains his delay in perfecting his appeal. [10] The RAD notes the Applicant's application to reopen the appeal was not received by the RAD until February 7, 2019. The Applicant has not provided any explanation for the additional six week delay in perfecting his appeal beyond December 24, 2018. The RAD notes the information contained in the Applicant's application to reopen confirms the Applicant is able to follow instructions from his Counsel, as well as participate in obtaining documentation and attending his Counsel's office. The RAD fails to see how the Applicant's PTSD symptoms delayed the perfection of his appeal in this instance or in seeking assistance following the rejection of his claim before the RPD. [11] The RAD finds the Applicant has not provided a reasonable explanation for the additional delay in perfecting his appeal at a time when he and his new counsel would be well aware that failing to meet the time sensitive components would lead to the denial of re-opening his appeal. The RAD finds the Applicant has not demonstrated a continuing intent to pursue his appeal. [12] There was no breach of natural justice when the RAD decided to dismiss this appeal for lack of perfection. DECISION [13] This application is denied. (signed) "Robert Bebbington" Robert Bebbington March 13, 2019 Date 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.21.03 (September 18, 2018) Disponible en français RAD File/Dossier de la SAR : TB8-25012