VA9-01213

RPD File No. / No de dossier de SPR : VA9-01213 Private Proceeding / Huis clos APPLICATION TO RE-OPEN DEMANDE DE RÉOUVERTURE Private Proceeding Huit Clos Applicant(s) XXXX XXXX XXXX XXXX XXXX Demandeur(e)(s) d'asile Place(s) of Hearing In Chambers Lieu de l'audience Date of Decision July 7, 2014 Date de la décision Panel Lucinda Bruin Tribunal Counsel for the Adrian D. Huzel Conseil(s) du / de la / des Claimant(s) demandeur(e)(s) d'asile Tribunal Officer Agent(e) des tribunaux Designated Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "applicant") had his claim for refugee protection referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) on March 5, 2009. On May 26, 2010 the claim was abandoned. On June 27, 2014, the applicant filed an application to re-open his claim. DECISION [2] The application to re-open is denied. ANALYSIS [3] I have considered this application pursuant to Rule 62 of the Refugee Protection Division Rules (the "Rules).1 This Rule provides that the Division must not allow an application to reopen unless it is established that there was a failure to observe a principle of natural justice. It also states that in deciding the application, the Division must consider any relevant factors, including whether the application was made in a timely manner and the justification for any delay. [4] In this case, the applicant has established that even though there is no record of his having provided an updated address to the RPD as of the date when the original Notice to Appear was sent for his refugee hearing, the Board did secure an updated and accurate address from Canada Border Services Agency (CBSA) about two weeks prior to the hearing date of May 21, 2010. The documents on file support the applicant's assertion that the Board, due to a clerical error, sent follow-up mailings to an incomplete address, omitting the unit number, which resulted in the applicant not receiving the re-sent Notice to Appear or the notice of the abandonment of his claim. [5] However, as noted in the affidavit submitted by the applicant,2 he did become aware of this situation when he reported to CBSA on or about June 3, 2010. At that time he discussed filing a reopening application with a lawyer, and retained a lawyer to file the application, but this process was terminated when the applicant was unable to pay the balance of what he owed, and he was arrested and detained on an extradition matter. He was later refused Legal Services Society coverage while the extradition matter was pending. The applicant states that he did not ask Legal Services to provide a lawyer to file a reopening application with the RPD until May of 2014 because he assumed they would refuse due to the extradition proceedings. [6] This does not address the question of why the applicant did not take any steps on his own to pursue a reopening application over the four years after his claim was abandoned. His initial steps in retaining counsel to submit a reopening application demonstrate that the applicant was aware of the provisions for such an application. Even though he was detained, he could have written letters to the Board, requesting information about how to file for reopening and/or indicating his intention to proceed with the application. He did not make any such efforts. [7] The Chairperson's Guideline 6 deals with "Scheduling and Changing the Date or Time of a Proceeding."3 Although the application before me here is not with respect to setting or changing a proceeding date, Guideline 6 does set forward principles that apply to a party's right to be represented by counsel. Item 3.6.1 notes that the right to be represented by counsel is not absolute and the opportunity to retain counsel is not unlimited. Item 3.8.2 states that the IRB expects self-represented parties to be prepared to present their case on the scheduled date. Item 3.12.1 indicates that the fact that a party is waiting for an application for legal aid to be approved is not generally a sufficient reason to allow an application to change the date or time of a proceeding, although members may consider delays in the processing of legal aid applications that were beyond the control of the party. These principles demonstrate that IRB proceedings can be and often are advanced without the assistance of a lawyer. Guideline 6 also explains in item 3.8.1 that the IRB will be sensitive to the situation of self-represented parties who are unfamiliar with its rules and processes. In the applicant's case, such a principle could well have led the Board to accommodate questions he may have had about the form for an application to reopen his claim or to direct him to the rules for submitting his application. However, the principles outlined in this Guideline demonstrate that even though parties have the right to legal representation, their obligation to proceed with the presentation of their case is not relieved by their inability to secure counsel to represent them. [8] In this case there has been a significant delay in the timing of the application to reopen the claim, coming four years after the abandonment of the claim. The applicant's justification for the delay is solely with respect to his not having the funds to retain counsel to assist him while he was detained on other immigration matters. I do not find that this prevented the applicant from presenting his application on his own behalf, particularly in view of the length of time it was taking to progress in his other matters. [9] The Rules clearly indicate that in the case where an application to reopen is not made in a timely manner the RPD must consider the justification for the delay. The Federal Court case of Tepordei indicates that a reopening application could be dismissed by the Board on the basis of delay alone.4 I find that in this case the applicant did not provide adequate justification for his significant delay and that this provides sufficient basis on which to dismiss his application. CONCLUSION [10] For the foregoing reasons, the applicant's request for re-opening is denied. (signed) "Lucinda Bruin" Lucinda Bruin July 7, 2014 Date 1 Refugee Protection Division Rules, (SOR/2012-256). 2 Re-opening motion record, pp. 4-6. 3 Chairperson Guideline 6: Scheduling and Changing the Date or Time of a Proceeding, Guidelines issued by the Chairperson, Pursuant to PARAGRAPH 159(1)(h) of the Immigration and Refugee Protection Act Effective date: April 1, 2010 Amended December 15, 2012. 4 Tepordei v. Canada (M.C.I.); 2013 FC 108. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 2 RPD.15.7 (18 May 2010) Disponible en français RPD File No. / N° de dossier de la SPR : VA9-01213 RPD File No. / N° de dossier de la SPR : VA9-01213