VC1-03984

RAD File / Dossier de la SAR : VC1-03984 VC1-03985 VC1-03986 Private Proceeding / Huis clos Reasons and Decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) (Person(s) who is(are) the subject(s) of the appeal OR Respondent(s) in the appeal) XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Demandeur(s) (Personne(s) en cause dans l'appel OU Intimé(s) dans l'appel) Date of decision October 12, 2022 Date de la décision Panel E. Bobkin Tribunal Counsel for the persons who are the subject of the appeal Anu Kumar Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the Applicants) are citizens of Nigeria. The Applicants made an application seeking to reopen their appeal to the Refugee Appeal Division (RAD) which was considered and dismissed on September 8, 2022. DETERMINATION OF THE APPLICATION [2] The application for reopening is dismissed. BACKGROUND [3] The Applicants' claims were first heard by the Refugee Protection Division (RPD) on July 24, 2019, and they were rejected on August 8, 2019. The Applicants claimed that they were at risk from the Fulani Herdsman. The RPD found that they had adequate state protection. The Applicants appealed the decision to the RAD. On February 3, 2020, the RAD overturned the RPD's decision and returned the claim to be considered by a differently constituted panel. The RAD directed the RPD to consider the issue of the internal flight alternative (IFA). [4] On February 19, 2021, the second RPD Panel heard the Applicants' claims. The RPD rejected the claims on May 13, 2021. The RPD found that, if the Applicants were credible, there would be no IFA. However, the RPD found that the Applicants had not established their claims credibly. The Applicant filed a Notice of Appeal to the RAD on June 11, 2021. [5] On August 5, 2021, the RAD dismissed the appeal for lack of perfection, as the Applicants failed to perfect their appeal by the extended due date. The Applicants made their first application to reopen on August 10, 2021, which was allowed by the RAD on August 25, 2021. [6] The Applicants filed an Appellants' Record after the reopening. They argued that the RPD erred in concluding they lacked credibility. They also argued that, if the RAD found the RPD's credibility assessment to be "unreasonable, there is no state protection or viable internal flight alternative (IFA)."1 Regarding the IFA the Applicants stated they relied on counsel's submissions to the RPD and the objective documentation, as well as the testimony. [7] On September 8, 2022, the RAD dismissed the Applicants' appeal. The RAD found that the Appellants have a viable IFA in Port Harcourt. [8] On September 26, 2022, the Applicants filed their second application to reopen with the RAD. A copy of the application to reopen was sent to the Minister on September 27, 2022. The Minister did not respond to the application to reopen. ANALYSIS [9] The Refugee Appeal Division Rules allow for the reopening of appeals where there was a breach of natural justice, pursuant to sub-rule 49(6). Sub-rule 49(7) requires that the RAD consider any relevant factors, including those set out in the Rules. 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. [10] Jurisprudence sets out that the concept of natural justice or procedural fairness varies according to the circumstances of the case.2 The unique features of a case should be taken into consideration in determining if natural justice was denied. [11] The test to meet in an application to reopen an appeal was considered by the Federal Court in Omokri: [29] The RAD Rules are clear that an application to re-open an appeal before the RAD requires a person to show that the dismissal of an appeal was made in breach of natural justice. The alleged breach of natural justice must be established vis à vis the RAD panel that dismissed the Applicant's appeal.3 [12] In this case, the Applicants argue the following: 1. The RAD dismissed the appeal based on an issue that was not raised by the RPD Member in his decision. 2. The RAD violated the Applicants' right to procedural fairness by failing to afford the Applicants an opportunity to address its concerns and analysis regarding the IFA. [13] I do not find the Applicants' arguments persuasive. [14] First, I do not agree that the RAD Member dismissed the appeal based on an issue that was not raised by the RPD Member in his decision. The RPD explicitly determined the issue of IFA stating: Regarding internal flight alternatives, the claimants were asked why they cannot successfully relocate to Port Harcourt or Abuja. . . . I find that explanations regarding cost of housing, high crime rate, and other general difficulties reasonable, but not adequate to explain why relocation is unfeasible. However, if the claimants are credible . . . then the proposed internal flight cities may not be safe havens.4 [15] While the RPD did not find the issue of IFA determinative, the issue was addressed in the decision. The RPD found that, were the Applicants credible, they may not have an IFA. The RAD overturned this finding that it was ambiguous and lacking detail. Therefore, the RAD did not rely on this finding and conducted its own independent assessment of IFA. [16] Second, the RAD did not need to provide notice to the Appellants and an opportunity to respond to its decision that they had a viable IFA. This is because IFA was dealt with, both in the RPD's decision and in the Appellants' Record. As stated above, the Applicants explicitly raised the issue of IFA themselves in their memorandum. They argued that they did not have an IFA. They relied on their submission to the RPD and the objective country documents. They also quoted their testimony at the RPD hearing which explicitly addressed the issue of IFA in Port Harcourt. They then argued that the evidence shows relocation would be impossible because they could be found in the IFA without difficulty. [17] The RAD cannot raise a new issue without notifying the parties and providing them an opportunity to respond.5 However, it is not a new issue where the RAD addresses an issue which was addressed by the RPD or raised by the appellant in their submissions.6 In this case, the issue of IFA was addressed in the RPD's decision, and the Applicants made arguments about IFA in their memorandum. The specific IFA location of Port Harcourt was addressed in both the RPD's decision and the Applicants' Appeal Record. It should not have come as a surprise to the Applicants that the RAD addressed their submissions and decided on this issue. [18] Given this, I find that there was no breach of natural justice in the dismissal of the Applicants' appeal. [19] I note that the RAD Rules also direct me to consider the timeliness of a reopening request and whether or not an application for judicial review has been brought. I find that there was a small delay between Counsel becoming aware of the dismissal for lack of perfection and the filing of the reopening request (less than one month). I find this factor is neutral. The Applicants have not provided proof of whether they filed an application for judicial review of the decision to dismiss their appeal. I find this factor is not determinative. CONCLUSION [20] I find the Applicants have not established that there was a failure to observe the principles of natural justice in the dismissal of their appeal. [21] I therefore dismiss this application. (signed) Erin Bobkin E. Bobkin October 12, 2022 Date 1 Appellants' Record, p. 58. 2 Baker v. M.C.I. (S.C.C., no. 25823), 1999 CanLII 699 (SCC), [1999] 2 SCR 817. 3 Omokri v. M.C.I. (F.C., no. IMM-4063-17), Heneghan, September 28, 2018, 2018 FC 970, para. 29. 4 Appellants' Record, p. 6, RPD's Reasons, paras. 18-20. 5 Ching v. M.C.I. (F.C., no. IMM-1272-14), Kane, June 9, 2015, 2015 FC 725, at paras. 74, 76. 6 Ibrahim v. M.C.I. (F.C., no. IMM-2916-15), Zinn, April 7, 2016, 2016 FC 380, at para. 30; and Bebri v. M.C.I. (F.C., no. IMM-5220-17), Boswell, July 12, 2018, 2018 FC 726, at paras. 16-18 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC1-03984 VC1-03985 VC1-03986 RAD.21.02 (February 15, 2022 Disponible en français 2 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.21.02 (February 15, 2022) Disponible en français