TA5-01239

Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD File # / No de dossier de la SPR : TA5-01239 TA5-01240 TA5-01241 TA5-01242 Private Proceeding / Huis clos APPLICATION TO REOPEN Applicant(s) Requérant(e)(s) XXXXX XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX) XXXXX XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX) XXXXX XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX) XXXXX XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX) Respondent(s) The Minister of Citizenship and Immigration Intimé(e)(s) Date(s) of Hearing N/A Date(s) de l'audience Place of Hearing N/A Lieu de l'audience Date of decision 27 August 2007 Date de la décision Panel Keith Brennenstuhl Tribunal Counsel for the Applicant(s) Raoul Boulakia Barrister and Solicitor Conseil du / de la / des Requérant(e)(s) Counsel for the Respondent(s) N/A Conseil / de l' / des Intimé(e)(s) Refugee Protection Officer N/A Agent(e) de la protection des réfugiés Designated representative N/A Représentant(e)(s) désigné(e)(s) APPLICATION TO REOPEN This is an application to reopen the refugee claim of XXXXX XXXXX XXXXX and her children (the applicants) pursuant to Rules 44 and 55 of the Refugee Protection Division (RPD) Rules. The refugee claim was rejected by the Board Member in August 2006 because the Board Member was not satisfied that the applicants were citizens of Somalia as alleged. As part of this application, the applicants have filed several affidavits, all dated XXXXX, 2007, including an affidavit from XXXXX XXXXX, Settlement Counselor with XXXXX Somali Community Services, wherein each affiant swore/declared that Ms. XXXXX is, indeed, a national of Somalia. Reopenings It is quite clear from Federal Court jurisprudence that reopenings are only to be allowed where there has been a breach of natural justice.1 The power to reopen a hearing to consider new evidence hinges on whether the hearing was held in accordance with the rules of natural justice.2 There is no authority to reopen a concluded hearing to receive additional evidence in the absence of a breach of natural justice. The applicants rely on Montoya v. M.C.I.. (Minister of Citizenship and Immigration) (F.C., no. IMM-2107-05), Rouleau, December 9, 2005, 2005 FC 1674. In Montoya, the Court dismissed the application for judicial review, but suggested that the applicant had recourse to reopening pursuant to section 55 of the RPD Rules. In the Montoya case, the applicant did not have access to Pre-Removal Risk Assessment (PRRA) because she had been excluded from refugee protection for child abduction. The Court opined in obiter that there would be a breach of natural justice if there was no forum available where the applicant could bring forward her post-hearing evidence that the father of the children had consented to their removal from the home country. However, the applicants herein, unlike the applicant in Montoya, have a forum to adduce new evidence regarding identity, namely, PRRA. Consequently, I do not believe that the applicants' reliance on Montoya can be sustained. Natural Justice The applicants raise four natural justice issues. I will address each one in the order presented in the application. Overstatement of notice It is argued that the applicants were not properly told by the Refugee Protection Officer (RPO) and the Member what kind of evidence was necessary to prove identity. In the circumstances of this case, I cannot conclude that there was a breach of natural justice. The screening form prepared in this matter advised the applicants in two places (on page 1 and page 2) that identity was an issue. The applicants' expedited interview was terminated because identity was an issue. Moreover, the applicants were represented by experienced legal counsel who would have appreciated the fundamental importance of the issue of identity. Failure to take into account the photographs Although the photos were not entered, the Member in his reasons considered the testimony of the identity witness, found it generally credible but concluded that, given the witness testified to knowing the claimant for a short period in Somalia when she was a teenager 15 years earlier, it alone was insufficient to establish the identity and nationality of the applicants. In my view, the failure to enter the photos in the circumstances of this case did not amount to a breach of natural justice. Failure to exercise powers The applicants rely on paragraph 205 of the United Nations High Commissioner for Refugees (UNHCR) Handbook which, while persuasive, is not binding on the RPD. Moreover, given that the applicants were represented by experienced legal counsel and that they had clear notice of the issue of identity, I am of the view that the Member cannot be faulted for not assisting the applicants in meeting their onus to prove their identity. The fact that the Member did not direct the applicants to seek assistance from a community organization that helps Somalis to establish their identity does not, in my opinion, amount to a breach of natural justice. Negligence of Counsel Allegations of negligence are easily made. There are no indications that steps have been taken against the applicants' former counsel. In any event, it is well recognized that persons have to accept the consequences of their choice of counsel.3 It is only when a counsel's incompetence rises to the level described in Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (T.D.), for example, can a miscarriage of justice be found.4 In Shirwa, counsel, among other things, lead the claimant to believe that he was a lawyer, limited his representation of the claimant solely to entering the PIF and failed to provide written submissions. There is no evidence before me that would lead me to conclude that the applicants' former counsel's alleged incompetence rose to the level described in Shirwa. In my view, the applicants were not so poorly represented by former counsel so as to conclude that there was a violation of natural justice. Determination For these reasons, the application to reopen is dismissed. "Keith Brennenstuhl" Keith Brennenstuhl 27 August 2007 Date REFUGEE PROTECTION DIVISION / APPLICATION / REOPENING / RIGHT TO A FAIR HEARING / NATURAL JUSTICE / NEW EVIDENCE / IDENTITY / FAIR HEARING / MALE / SPOUSE / CHILDREN / NEGATIVE / SOMALIA 1 See, for example, Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.). 2 Ibid. 3 Robles, Hugo Fernando v. M.C.I. (F.C.T.D., no. IMM-2090-02), Heneghan, March 28, 2003; 2003FCT 374. 4 Ibid. --------------- --------------- --------------- --------------- 3 RPD File # / No de dossier de la SPR : TA5-01239 TA5-01240 TA5-01241 TA5-01242 RPD File # / No de dossier de la SPR : TA5-01239 TA5-01240 TA5-01241 TA5-01242