Docket: IMM-892-16
Citation:
2016 FC 996
Ottawa, Ontario, September 1, 2016
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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MAYRA ELIZABETH
AGUIRRE RENTERIA and ARINSON AGUIRRE RENTERIA
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Applicants
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And
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
Mayra Elizabeth Aguirre Renteria [the Principal
Applicant] and her minor brother, Arinson Aguirre Renteria, seek judicial
review of a decision rendered by the Refugee Appeal Division [RAD], whereby it dismissed
their application to reopen their appeal. The appeal to the RAD was dismissed,
without being assessed on its merits, for failure to perfect the appeal within
the time prescribed by the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations].
II.
Background
[2]
The Applicants are citizens of Colombia. They claimed refugee status in Canada in June 2015, alleging that they faced
persecution and risks under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], from the Revolutionary Armed
Forces of Colombia (FARC) rebel group. The Refugee Protection Division [RPD]
rejected their claims on September 11, 2015, finding that the Principal
Applicant lacked credibility.
[3]
The Applicants received the decision on
September 21, 2015, and filed a notice of appeal with the RAD Registry on
October 2, 2015. The deadline for perfecting their appeal was October 21, 2015.
However, the Applicants, through their counsel, only delivered an Appellants’
Record to the RAD on November 27, 2015. The Appellants’ Record was accompanied
by an application to extend the time within which the appeal could be
perfected.
[4]
Unbeknownst to the Applicants at the time, the
RAD dismissed their appeal for lack of perfection on November 25, 2015. On
December 2, 2015, the RAD Registry advised counsel that there would be no
appeal before the RAD. The Applicants filed an application to reopen the appeal
on December 10, 2015. In their submissions, they argued several points,
including:
•
Their counsel did not attend the RPD hearing due
to the denial of his request for a change of hearing date, thus he did not know
what had happened at the hearing;
•
They were awaiting legal aid assistance in
pursuing the appeal;
•
The transcript of the RPD hearing was only
received on November 6, 2015, more than 30 days from the time they received the
RPD’s decision;
•
After their counsel read the transcript, he
realized that the Applicants’ passports were important to the appeal, and the
passports only arrived on November 20, 2015;
•
The Appellants’ Record was sent out for filing
at the RAD Registry on November 25, 2015, but due to a delay in the delivery
service, it only arrived on November 27, 2015.
•
It would be a breach of natural justice to deny
the reopening of the appeal because there may be substantial issues to be
determined on appeal.
III.
Impugned Decision
[5]
The RAD began by outlining the legislative
provisions relevant to the analysis of the merits of the application to reopen:
IRPA:
110(2.1) The
appeal must be filed and perfected within the time limits set out in the
regulations.
Refugee Appeal Division Rules, SOR/2012-257 [RAD Rules]:
3(5) The
appellant’s record provided under this rule must be received by the Division
within the time limit for perfecting an appeal set out in the Regulations.
49(6) The
Division must not allow the application unless it is established that there was
a failure to observe a principle of natural justice.
(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.
Regulations:
159.91(1) Subject to subsection (2), for the purpose of
subsection 110(2.1) of the Act,
(a) the time limit for a person or the
Minister to file an appeal to the Refugee Appeal Division against a decision of
the Refugee Protection Division is 15 days after the day on which the person or
the Minister receives written reasons for the decision; and
(b) the time limit for a person or the
Minister to perfect such an appeal is 30 days after the day on which the person
or the Minister receives written reasons for the decision.
(2) If the appeal cannot be filed within the time limit set out in
paragraph (1)(a) or perfected within the time limit set out in paragraph
(1)(b), the Refugee Appeal Division may, for reasons of fairness and natural
justice, extend each of those time limits by the number of days that is
necessary in the circumstances.
[6]
The RAD dismissed the application to reopen the
appeal, finding that doing so would not result in a breach of natural justice.
[7]
First, the RAD rejected the Applicants’ argument
that their counsel had no idea what occurred at the RPD hearing and needed to
order the transcript, which only arrived on November 6, 2015. The RAD noted
that a compact disc [CD] of the RPD hearing is provided to an unsuccessful
claimant, by the RPD, with the written copy of the negative decision. The RAD
found there was no reason why the Applicants’ counsel could not have listened
to the CD to prepare his memorandum, as many counsel do. The Applicants’
counsel had not adduced evidence to the effect that a CD was not provided to
the Applicants.
[8]
Second, the RAD rejected the argument that the
Applicants’ counsel only knew that passports were an issue after reading the
transcript, and had to then request and wait for their passports to arrive. The
RPD decision at paragraphs 18 and 19 clearly indicated that the absence of the
passports contributed to the finding that the Principal Applicant lacked
candour; thus, on the basis of the RPD decision alone, the Applicants’ counsel
could have initiated the request for the passports. Alternatively, the
Applicants could have perfected their appeal by filing their Appellants’ Record
on time, and sought to supplement it with passports upon receipt of them,
pursuant to Rule 29 of the RAD Rules.
[9]
Third, the RAD found that the Applicants’
explanation that the delivery service was two days late was inconsequential.
The RAD noted that the Member’s decision dismissing the appeal was effective
when he signed and dated it on November 25, 2015. Even if the request for an
extension of time had been received by the RAD on November 25, there was no
guarantee it would come to the RAD Member’s attention before he signed the
dismissal order. In any event, the Applicants’ materials arrived two days after
that decision was effective.
[10]
Fourth, the RAD considered the factors in Rule
49(7)(a) and (b) of the RAD Rules (in the RAD decision at paragraphs 30 and 31,
the RAD says it is considering Rule 49(1)(a) and 49(1)(b), but those provisions
do not exist – I believe the RAD meant to say Rule 49(7)(a) and 49(7)(b)).
Regarding Rule 49(7)(a), the RAD found that the application for reopening the
appeal was not meaningfully untimely. As for Rule 49(7)(b), the RAD noted that
the Applicants had not provided information with respect to an application for
judicial review before this Court. However, the RAD found that it would be
unnecessary for the Applicants to seek the intervention of this Court as
opposed to following the course they had taken by applying to the RAD. This was
especially so given that paragraph 72(2)(a) of the IRPA provides that an
application for judicial review cannot be made until the right of appeal is
exhausted.
[11]
Finally, the RAD considered whether “there was a failure to observe a principle of natural justice”
as per Rule 49(6) of the RAD Rules. The RAD opined that this provision acts
retrospectively to historical failures, as evidenced by the specific language
used in the provision itself. Thus, the prospective failure alleged by the
Applicants – that it would be a breach of natural justice to deny their
application – was not determined to fall within the scope of this provision.
IV.
Issue and Standard of Review
[12]
The determinative issue is whether the RAD
breached the rules of natural justice by failing to allow the Applicants’ reopening
application. However, while this case raises a question of natural justice, the
RAD’s interpretation of its home statute and the application of that law to the
facts are questions of mixed fact and law reviewable on a standard of reasonableness
(Khakpour v Canada (Citizenship and Immigration), 2016 FC 25 at paras
20-21). Accordingly, I am of the view that the determinative issue is whether the
RAD’s decision to deny the application to reopen the appeal is reasonable.
V.
Analysis
[13]
Counsel for the Respondent conceded at the
hearing that the RAD may have erred when it found that Rule 49(6) of the RAD
Rules applied retrospectively to historical failures and not to the prospective
failure like that which was alleged by the Applicants – namely, that it would
be a breach of natural justice to deny their application. If such a restrictive
interpretation was chosen, the RAD could never reopen an appeal when, in cases
like the present one, it dismisses an appeal for a simple matter of delay
without assessing its merits. Rather, I am of the view that the RAD should only
grant a motion to reopen an appeal when, considering all the circumstances of a
case, it finds that not reopening it would result in a breach of procedural
fairness.
[14]
However, and for the reasons discussed below, I
am of the view that the RAD’s misinterpretation of Rule 49(6) of the RAD Rules
is not material as it did consider all the facts before it, including those
that were not before the decision-maker who dismissed the appeal, and as such
its decision is reasonable.
[15]
First, it was reasonable for the RAD to reject
the Applicants’ counsel’s argument that he needed to order the transcript of
the RPD hearing before preparing his submissions for the appeal. The RAD
explained that all unsuccessful claimants receive a CD of the RPD hearing, and
that it is common practice for counsel to listen to these CDs. By virtue of
subsection 171(b) of the IRPA, “the [RAD] may take notice of any facts that may be judicially
noticed and of any other generally recognized facts and any information or
opinion that is within its specialized knowledge”. The common practice regarding CDs was clearly a fact of which the RAD
could take judicial notice, and which was within its specialized knowledge.
Thus, it was reasonable for the RAD to find that absent evidence that the CD
was unavailable to the Applicants, there was no reason why their counsel could
not have listened to the CD immediately after receiving the negative decision
on September 21, 2015, in order to prepare his memorandum. In her affidavit,
the Principal Applicant states that they had to wait for the Legal Services
Society to fund their appeal before ordering the transcript of the hearing and
that they had to have the transcript before taking steps to obtain their
passports. She states that the passports were obtained on November 20, 2015,
but she is silent as to when the different steps in the process were taken. All
that is revealed by the evidence is that it took nine weeks from the receipt of
the RPD decision before they had all the necessary materials to perfect their
appeal and that it took an additional week to file those materials with the
RAD.
[16]
Second, I find that the Applicants’ argument
that they could not request the passports until receiving the RPD hearing
transcript is without merit. The Applicants’ counsel could have determined that
the absence of the passports was an issue from listening to the CD of the
hearing or simply from reading paragraphs 18 and 19 of the RPD decision, which
leave no doubt as to the impact of the missing documents on the Applicants’
credibility:
[18] To begin with, the claimants chose
not to provide their passports for examination. The principal claimant
testified that they left their Colombian passports with a person named Elizabeth in the United States, so that they could not be lost or stolen while crossing
into Canada. Asked how they were able to provide their passport numbers, she
explained that Elizabeth was contacted and provided that information.
[19] From this evidence, I find that the
claimants could have obtained their passports from Elizabeth. While the
claimants have established their identity through alternative documentation,
passports might contain other relevant information. The choice not to submit
passports is not suggestive of full candour.
[17]
Counsel could have then requested the passports
and, as the RAD pointed out, even if they did not arrive on time, counsel could
have filed the Appellants’
Record on time, and submitted the passports when they became available,
pursuant to Rule 29 of the RAD Rules.
[18]
Finally, I agree with the Respondent that Huseen
v Canada (Citizenship and Immigration), 2015 FC 845 is
distinguishable from the present case. The applicant in Huseen was not
represented by counsel when she failed to meet the procedural requirement, and
when she did retain counsel, her counsel contacted the IRB immediately to
remedy the situation. In this case, the Applicants were represented by counsel
throughout the process. Counsel was even contacted by the RAD Registry, two
days after the expiration of the delay to perfect the appeal, and was advised
that he needed to ask for an extension of time. It was reasonable for the RAD
to dismiss the Applicants’ appeal a little over a month later, as no such
request was yet received.
[19]
Alternatively, as pointed out by the RAD,
counsel could have submitted the Appellants’ Record on time and submitted the passports later, as per Rule 29
of the RAD Rules. As held by this Court in Raza v Canada (Citizenship and
Immigration), 2016 FC 250 at para 30:
[30] While I accept as a general
principle that procedural rules should be applied flexibly in the
administration of Canada’s refugee system, I do not consider the facts of this
case to demonstrate a lack of flexibility that would constitute breach of the
principles of procedural fairness or natural justice on the part of the RAD. …
[20]
I therefore find that the RAD’s refusal to
reopen the Applicants’ appeal is reasonable in the circumstances of this case.
VI.
Conclusion
[21]
This application for judicial review is
dismissed. The parties did not propose any question of general importance for
certification and none arises from this case.
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