MB5-05434

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 : MB5-05434 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXXX XXXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision January 13, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Kibondo Max M Kilongozi Conseil de la personne 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] The Refugee Appeal Division (RAD) dismissed the appeal in this case in a decision dated December 15, 2015, because the file had not been perfected within the time limit set out in paragraph 159.91(b) of the Regulations Amending the Immigration and Refugee Protection Regulations and subrule 3(5) of the Refugee Appeal Division Rules (RAD Rules), that is, within 30 days after the day on which the person who is the subject of the appeal or the Minister receives the Refugee Protection Division's (RPD) reasons for decision. In this case, the appeal had to be perfected by December 7, 2015. [2] On December 21, 2015, the appellant's counsel sent the RAD a letter in which he requested that the file be reopened and that time be given to submit the appellant's record. [3] In his letter, counsel for the appellant explains that he filed that appellant's record late for health reasons. He states that he had had surgery on his right eye in April 2015 and had then undergone several preoperative evaluations in preparation for another surgery on January 29, 2016, on the same eye. [4] 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 principle of natural justice. Subrule 49(7) states the following: (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. [5] In this case, the application to reopen was filed on December 21, 2015, six days after the decision dismissing the appeal for lack of perfection was rendered. [6] Therefore, I consider that the application to reopen was filed in a timely manner. [7] Although the appellant's counsel did not explicitly explain why he did not submit an application for judicial review, I am nevertheless of the opinion that in this case, he had no legal argument to present in this regard, as the appeal was dismissed for lack of perfection and there were no reasons on the merits to review. [8] I consider that the reasons no application for judicial review was made are reasonable in the circumstances and that the appellant's best option was to submit an application to reopen to the RAD. [9] Lastly, I am of the opinion that the appellant should not have to bear the consequences of his counsel's actions or health. Said counsel's nonfeasance with respect to perfecting the appeal thus resulted in a failure to observe a principle of natural justice, in that the appellant was denied the right to have the RPD decision rejecting his claim for refugee protection appealed to and reviewed by the RAD, as provided for by the Immigration and Refugee Protection Act. [10] The application to reopen is allowed. [11] At this stage, it is not necessary to render a decision regarding the application for an extension of time presented by counsel, an application that, moreover, does not meet the requirements of rule 6 of the RAD Rules. [12] The appellant will have to perfect his file within 21 days after this decision was rendered, that is, on or before February 3, 2016. Normand Leduc Normand Leduc January 13, 2016 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MB5-05434 2 RAD.25.02 (2014.09.11) Disponible en français