TB0-01802

RPD File No. / N° de dossier de la SPR : TB0-01802 TB0-01827 TB0-01828 TB0-01829 Private Proceeding / Huis clos APPLICATION TO RE-OPEN Reasons and Decision ? Motifs et décision Applicant(s) XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Requérant(e)(s) Date(s) of Motion to Re-open July 25, 2012 Date(s) de la demande de Réouverture Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision July 31, 2012 Date de la décision Panel Diane L. Tinker Tribunal Counsel for the Claimant(s) Ron Shacter Barrister & Solicitor Conseil(s) du / de la / des demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) de tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre APPLICATION TO RE-OPEN [1] I have reviewed the application to re-open and upon reviewing Rules 44 and 55 of the Refugee Protection Division Rules, the following is my decision. [2] The Personal Information Forms were filed on March 3, 2010. [3] At the time of filing of their Personal Information Forms, the applicants had counsel and at all material times. [4] On or about June 7, 2011, the Board received information from CBSA that the principal claimant, XXXX XXXX, had left the country via London Heathrow airport on XXXX XXXX, 2011 and returned to Hungary. [5] As a result of that information, I requested that a Notice to Appear be sent to the applicants and that a Confirmation of Readiness also be sent. [6] On October 26, 2011, a Notice to Appear was sent to the applicants at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, Ontario to appear before the Board on November 28, 2011. [7] On November 3, 2011, a Confirmation of Readiness was sent to the applicants to the aforementioned address. [8] On November 28, 2011, no one appeared before the Board and since the Confirmation of Readiness was not completed and returned, the Member abandoned the claims. [9] Counsel did file an application to re-open on December 1, 2011, but failed to serve the Minister and thus the request was dismissed. [10] Counsel indicated that a letter was sent to the applicants on November 4, 2011 advising them of their hearing as well as a telephone call on November 25, 2011 about their hearing. The application indicated that the applicants were told that their hearing may be postponed (my emphasis). The application also indicated that the principal applicant was at the doctor's office on the day of the hearing. [11] Current counsel indicates that the applicants were told not to attend the hearing by their previous counsel and told not to worry about completing the Confirmation of Readiness. [12] In determining whether or not to grant the applicants' request, I am bound by Rule 55 which states: Rule 55 states: (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned. (2) The application must be made under rule 44. (3) A claimant who makes an application must include the claimant's contact information in the application and provide a copy of the application to the Minister information in the application and provide a copy of the application to the Minister. (4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice. [13] The panel must determine whether or not there has been "a failure to observe a principle of natural justice." [14] The purpose of an Application to Re-open is not to reconsider the merits of the claim or new evidence proffered by the applicant, but to determine whether a breach of natural justice occurred in the conduct of the original proceedings before the RPD. [15] I have conflicting evidence as to what the applicants were told as to whether their hearing would be proceeding. The applicants have filed a complaint with the Law Society, but there is no evidence as to their response. [16] Moreover, I have not received a medical note in accordance with the Guideline about the principal applicant's visit to the doctor on the date of the hearing. [17] Furthermore, no explanation has been provided as to why the applicants have waited since December 2011 to bring this application. [18] I deny the request to re-open. (signed) "Diane L. Tinker" Diane L. Tinker July 31, 2012 Date RPD.15.7 (February 12, 2009) Disponible en français RPD.15.7 (February 12, 2009) Disponible en français RPD File No. : TB0-01802 TB0-01827 TB0-01828 TB0-01829 RPD File No. :TB0-01802 TB0-01827 TB0-01828 TB0-01829