TB8-24987

RAD File / Dossier de la SAR : TB8-24987 TB8-24988 / TB8-24989 Private Proceeding / Huis clos Reasons and Decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX 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 April 16, 2019 Date de la décision Panel Robert Bebbington Tribunal Counsel for the applicant(s) John Grice Barrister and Solicitor Conseil (du/des) demandeur(s) Counsel for the respondent(s) N/A Conseil (de l'/des) intimé(s) Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) REASONS FOR DECISION [1] The Applicants, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, request that the Refugee Appeal Division (RAD) reopen their 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 Applicants have not establish that there was a failure to observe a principle of natural justice when their appeal was dismissed. Background [3] The RAD received a Notice of Appeal (NOA) from the Applicants on October 4, 2018, appealing a Refugee Protection Division (RPD) decision with a notice dated September 11, 2018 and with reasons deemed to having been received on September 19, 2018. The Appeal Record was to be filed on or before October 18, 2018. The Division received no further correspondence from the Applicant and the appeal was dismissed for lack of perfection on December 19, 2018. [4] On February 25, 2019, the RAD received notice that the Applicants were filing an Application to Reopen the RAD 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 Immigration and Refugee Protection Act (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 Applicants' appeal. It is for the Applicants to demonstrate that there has been a breach of natural justice or fairness. [9] New Counsel for the Applicants has communicated with the RAD and submits that the Appellant's former counsel was negligent, which led to a failure to observe a principal of natural justice. The Applicants met with the counsel (Luis Monroy), who represented them at the RPD on October 3, 2018. As requested by the new Counsel, former Counsel, Monroy has submitted an affidavit documenting the steps he took with the Applicants in reference to their appeal. He states he explained to the Applicants in the Spanish language: * He had reviewed the grounds for the appeal and he was not going to be able to provide Legal Aid with a positive opinion as to the merits of their case. * He was not able to represent them in their appeal before the RAD because he felt their appeal lacked merit and Legal Aid would not fund their appeal. * If they chose to retain him privately he would charge them $4500, but he explained that this did not make sense for the Applicants to invest in an appeal that had no merit. * They might have a better opportunity to obtain permanent residence in Canada through making a humanitarian and compassionate (H&C) relief application. * If the Applicants decided to pursue a H&C application, he would also charge them $4500 to prepare the application. * He offered to file the NOA on the Applicants' behalf to ensure that they did not miss the deadline and lose their right to appeal to the RAD, should they choose to continue their appeal. * He completed the NOA for the RAD, but he did not enter himself as Counsel of Record. The Applicants' mailing address was the address entered for correspondence from the RAD. * He confirmed with the Applicants that he would take no further action in their appeal to the RAD, but if they decided to move forward with a H&C application, he would be able to discuss issues arising from that application. [10] The Applicants submit that Mr. Monroy discussed "Legal Aid" with them, but they state that they did not understand the meaning of "Legal Aid". The RAD has reviewed the affidavit of their former counsel, where he states that it is not plausible that they did not understand the meaning of "Legal Aid", as they had assistance in their refugee claim from Legal Aid, as well as seeking assistance from a social worker to apply for a Legal Aid certificate for assessment of their appeal. The RAD further notes that the affidavit of their former counsel confirms that his communication with the Applicants following the October 3, 2018, was in the form of an email dated October 5, 2018, to remind the Applicants that if they were going to pursue their RAD appeal, they had fifteen (15) days to prepare arguments. He also reminded them that there were time deadlines to be met, should they wish to prepare a H&C application.1 [11] Their former counsel additionally confirmed in his affidavit and the associated evidence that he communicated with the Applicants on October 17, 2018 in reference to their potential H&C claim. 2 The RAD notes the Applicants' statements do not refer to this interaction in the affidavit submitted in support of the reopening application. Yet the Applicants have submitted copies of screen shots of a series of text messages that were sent to their former counsel on October 15-22, 2018,3 implying that Mr. Monroy was not responding. The RAD finds in its assessment of the evidence that these messages may have been received, but the evidence confirms that the Applicant's former counsel only continued to address the possibility of advancing a H&C claim on behalf of the Applicants. [12] The RAD further notes the Applicants submit that the failure of their former counsel to submit the opinion document to assess the merits of the appeal, to Legal Aid until January 2019,4 prevented them from obtaining funding for their appeal. The RAD finds that the evidence confirms that their former counsel turned his mind to assessing the issue and consulted with the Applicants. The fact that Mr. Monroy did not submit the document in a timely manner did not prevent the Applicants from obtaining funding from Legal Aid. [13] The RAD has reviewed and considered the Applicants' submissions in this issue. The RAD finds the statements of the Applicants are inconsistent with the facts in the record and with the sworn statements of their former counsel. The RAD notes the Applicants' former counsel was not indicated as counsel on their NOA submitted to the RAD. The RAD further finds there is no persuasive documentation to confirm any contractual relationship between the Applicants and their former counsel in respect to perfecting their appeal to the RAD. [14] The RAD recognizes that a factor to be considered by the RAD is the principle of natural justice. The RAD has reviewed the evidence and submissions of the Applicants and their former counsel. The RAD finds a breach of natural justice has not occurred. DECISION [15] The RAD finds that the Applicants have not demonstrated that there was a breach of natural justice when the RAD dismissed their appeal for lack of perfection. [16] This application is denied. (signed) "Robert Bebbington" Robert Bebbington April 16, 2019 Date 1 Applicants' Affidavit, XXX XXXXXX XXXX XX, pp.14-15. 2 Affidavit of Luis Monroy, pp.59, 68-69. 3 Affidavit of XXXX XXXX XXX, pp.5, 18. 4 Affidavit of Luis Monroy, pp.62-67. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 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 : TB8-24987 TB8-24988 TB8-24989