MB6-00125

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 File No. / No de dossier de la SAR : MB6-00125 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXXX XXXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision July 25, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subjects of the appeal Me Jean Lash Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION Application to Reopen [1] In this case, the Refugee Appeal Division (RAD) dismissed the appeal in a decision dated February 1, 2016, on the ground that the record was not perfected within the time limit prescribed by paragraph 159.91(1)(b) of the Regulations Amending the Immigration and Refugee Protection Regulations and by subrule 3(5) of the Refugee Appeal Division Rules (RAD Rules), that is, within 30 days after the day on which the person receives written reasons for the decision from the Refugee Protection Division (RPD). In this case, the time limit to perfect the appeal was January 21, 2016. [2] On July 11, 2016, the appellants, through their counsel, sent the RAD an application to reopen the appeal under rule 49 of the RAD Rules. [3] In their application to reopen, the appellants explain the following. [4] The principal appellant, Ms. XXXX (the other female appellant being her minor daughter) entrusted her appeal to her former counsel, XXXX XXXX, who filed the notice of appeal with the RAD on January 8, 2016. Mr. XXXX is listed as counsel of record for the appellants in the notice of appeal. [5] It was not until receiving the RAD's decision dismissing her appeal that the principal appellant realized that her counsel had not perfected their appeal. [6] The principal appellant explains that she then contacted Mr. XXXX and that he explained that he had decided not to perfect her appeal, preferring to move forward with an application for permanent residence on humanitarian and compassionate grounds. Mr. XXXX allegedly told her to wait until the end of her studies, in May 2016, to file this application. [7] The principal appellant met with Mr. XXXX in May 2016 to file the application for permanent residence. She had questions and suspicions when Mr. XXXX allegedly refused to sign the application as counsel of record. [8] The principal appellant explains that she contacted another counsel at the XXXX community centre, who explained to her that an application for permanent residence on humanitarian and compassionate grounds does not protect her from possible deportation from the country and that it is, moreover, possible to apply to reopen her appeal before the RAD. [9] The principal appellant and her new counsel explain that it took them some time before they were able to contact Mr. XXXX and to obtain a copy of their refugee file from him. [10] Mr. XXXX, in response to a letter from the appellants' new counsel, explained that the principal appellant herself had decided to proceed with an application for permanent residence on humanitarian and compassionate grounds instead of pursuing her appeal before the RAD. [11] The appellants consequently submit that their previous counsel did not properly represent them before the RAD by not perfecting their record while still being listed as their counsel of record before the RAD. [12] For these reasons, the principal appellant filed a complaint against Mr. XXXX with the Law Society of Upper Canada. [13] A copy of this application to reopen was also sent to Mr. XXXX, in accordance with subrule 49(4) of the RAD Rules. Mr. XXXX did not intervene in this application before the RAD. [14] The Minister of Public Safety sent a letter to the RAD indicating that he does not oppose this application to reopen. [15] Under subrule 49(6) of the RAD Rules, the RAD can allow the application to reopen if it is established that there was a failure to observe a principal of natural justice. Subrule 49(7) indicates that: (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. [16] The appellants indicate that the delay in filing this application, namely, on July 13, 2016, is due to the fact that the principal appellant did not meet her new counsel until May 2016 and that she had to take steps over a number of days to obtain a copy of the file from the previous counsel, and that some time was needed to gather the documentation to file a complaint against him with the Law Society of Upper Canada and to prepare this application. [17] Consequently, I am of the opinion that the application to reopen was made in a timely manner. [18] The appellants explain that they did not file an application for leave and for judicial review because there was no substantive decision to review as the appeal was dismissed for failure to perfect. Therefore, there was no legal argument to present to obtain judicial review. [19] I am of the opinion that the reasons why no judicial review was filed are reasonable in the circumstances and that the best option for the appellants was to file an application to reopen with the RAD. [20] In my opinion, the appellants established that there was a failure to observe a principal of natural justice because of errors committed by their former counsel. They were thus deprived of their right to appeal the RPD's decision rejecting their refugee protection claim and have it reviewed by the RAD, as set out by the Immigration and Refugee Protection Act. [21] The application to reopen is allowed. [22] The appellants will have to perfect their record within 30 days of this decision. Normand Leduc Normand Leduc July 25, 2016 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MB6-00125 5 RAD.25.02 (2014.09.11) Disponible en français