MB3-04895

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. / N° de dossier de la SAR : MB3-04895 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 / heard at Montréal, Quebec Appel instruit à Date of decision April 30, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Johnson Babaloa Conseil de la personne en cause Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] On December 18, 2013, the Refugee Appeal Division (RAD) located in Montréal, Quebec received a Notice of Appeal from (the "Appellant"), who appeals a decision of the Refugee Protection Division (RPD) in Montréal, Quebec dated December 3, 2013. [2] According to that Notice, the Appellant is reputed to have received the RPD's decision on December 12, 2013. As such, the Appellants' Record was due to be received by the RAD on or before January 9, 2014 and perfected in accordance with RAD Rule 3. [3] By a decision of January 16, 2014, the RAD dismissed the appeal for lack of perfection. At that date, no documents had been received in the RAD offices in Montréal, Quebec. [4] On January 28, 2014, the Appellant's counsel faxed an application to re-open this file to the Registrar of the RAD in Montréal, Quebec. This application was filed in the Toronto offices of the Immigration and Refugee Board (IRB) on January 28, 2014. [5] In this application to re-open, the appellant's counsel argues that the Appellant filed a perfected appeal as well as an extension of time to file an appeal on January 13, 2014 in the Toronto offices of the IRB. The Counsel notes that the appeal was filed late as one of his colleagues had misinformed him of the correct date to file an appeal. However, the request did not come to the attention of the RAD in Montréal, Quebec. The Appellant's counsel argued that the rules of the RAD do not dictate at which office an appeal may be filed. [6] Rule 31(1) of the Refugee Appeal Division Rules provides that a document to be provided to the Division must be provided to the Division's registry office that is located in the same region as the Refugee Protection Division's registry office through which the notice of decision under appeal was provided. [7] The RPD decision in this case was heard and rendered in Montréal. In accordance with Rule 31, all documents relating to the appeal should have been filed in Montréal. Although the Notice of Appeal was filed in Toronto, it was sent immediately to Montréal. Upon receipt, the Registrar in Montréal sent a letter to the Appellant advising her that all communications about her file needed to be made to the Montréal RAD Registry office. Despite this clear letter of instruction, all subsequent documents were filed in Toronto. [8] On March 5, 2014, the counsel filed a second submission to the reopening application citing Rule 31 of the RAD rules, and noting, in an affidavit filed by a legal assistant, that the error of filing in the wrong jurisdiction was in fact made by the counsel, and requesting that the appellant not suffer the consequences of the counsel's error. [9] On March 13, 2014, the counsel filed a third submission with respect to the reopening, citing a RAD decision and a federal court decision, Thamotharampillai1, regarding the error of the counsel. [10] The RAD reconsiders its decision of January 16, 2014 and re-opens this appeal, which is deemed perfected as of the date of this decision. The reason for the re-opening in this case is simply that it does not appear to have been the fault of the appellant that all documents were incorrectly filed but the fault of her counsel. This is the result of counsel's nonfeasance rather than malfeasance2. The appellant will not be penalized for the errors of her counsel. [11] The appeal is reopened. Alain Bissonnette Me Alain Bissonnette April 30, 2014 Date /kp 1 Thamotharampilla v. Canada (Minister of Citizenship and Immigration), 2011 FC 438. 2 Idem. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (February 7, 2014) Available in English RAD File No. / N° de dossier de la SAR : MB3-04895