Docket: IMM-244-18
Citation: 2018 FC 1103
Ottawa, Ontario, November 2, 2018
PRESENT: The Honourable Mr. Justice Norris
| BETWEEN:
|
| SHELONE SHERENE BROWN
|
| MEGAN MARJORIE DRISDALE
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
OVERVIEW
[1]
The applicants seek judicial review under section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of the December 8, 2017, decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB] denying their request to re-open their appeal from a negative refugee determination by the Refugee Protection Division [RPD] of the IRB. Their appeal had been dismissed by the RAD for lack of perfection on August 21, 2017.
[2]
For the reasons that follow, the application for judicial review is allowed and the matter is remitted for reconsideration before a differently constituted panel of the RAD.
II.
BACKGROUND
[3]
The applicants are citizens of Jamaica. They claim they are a same-sex couple who fled Jamaica due to fear of persecution because of their sexual orientation. They entered Canada on farm work visas in June 2016. They initially worked in Nova Scotia but moved to Toronto because they had heard that they could get help there with a claim for refugee protection. In Toronto, the applicants retained an immigration consultant who assisted them with filing their claims for protection and who attended with them at their hearing before the RPD.
[4]
For reasons dated May 17, 2017, the RPD rejected the applicants’ claims on the basis of adverse credibility findings. The member concluded that the applicants were not lesbians and, consequently, had not established grounds for protection. The Notice of Decision is dated May 24, 2017. The copy of the reasons for decision that had been mailed to the applicants was returned to the RPD but the applicants were deemed to have received the reasons for the decision on May 31, 2017. In any case, as subsequent events demonstrate, the applicants learned of the result shortly after the decision was released.
[5]
The applicants decided to appeal the RPD’s decision. The immigration consultant assisted them by preparing a Notice of Appeal, which was received by the RAD on June 7, 2017. The Notice of Appeal indicated that the immigration consultant was counsel for the applicants on the appeal. However, the immigration consultant informed the applicants that he could not assist them further with their appeal, explaining that this was because he is not gay. He referred them to a lawyer who he said was a lesbian and who had won an appeal for another of his clients. This lawyer turned out to be unavailable so the immigration consultant suggested someone else. The second lawyer submitted an opinion on the merits of the appeal to Legal Aid Ontario [LAO]. In a decision dated June 30, 2017, LAO denied coverage for the appeal. This lawyer did not assist the applicants further. There is no indication that he ever communicated with the RAD concerning the applicants’ appeal. As well, there is no indication that the immigration consultant took any steps to be removed as counsel of record before the RAD.
[6]
The applicants set out to find a new lawyer to assist them with their appeal. They first consulted their current lawyer, Ms. Guetter, in the first week of July 2017. Ms. Guetter provided them with a list of items they should request from the immigration consultant, including his complete file in their matter and a copy of the recording of the RPD hearing. The immigration consultant gave the applicants a number of the items they asked for but he did not give them the recording of the hearing, despite several requests.
[7]
Ms. Guetter then wrote to the IRB on July 25, 2017. In her letter, she stated that she had been retained by the applicants very recently for the purpose of an appeal of the decision of the RPD. Ms. Guetter included a completed counsel contact form with her letter. She also urgently requested a copy of her clients’ file at the RPD as well as the recording of the RPD hearing. Ms. Guetter explained that her clients had not received the decision in the mail. (As became clear later in the materials filed in support of the application to re-open, the first copy of the decision the clients had received from the immigration consultant was incomplete, although they were able to obtain a complete copy from him subsequently.) Ms. Guetter also explained that her clients had been unable to obtain a copy of the recording of the hearing from the immigration consultant. She noted that the deadlines for filing a Notice of Appeal and for perfecting the appeal had already passed. Ms. Guetter’s letter was received by the IRB on July 26, 2017.
[8]
The RPD provided Ms. Guetter with a copy of the recording of the hearing on or about August 3, 2017.
[9]
On August 21, 2017, the applicants’ file was placed before a RAD member with a request for directions dated August 14, 2017, because the date for perfecting the appeal had passed and the appellants’ record had not been filed. The applicants were not given any notice that this would be happening. The reasons for dismissing the appeal are brief. After noting that the appellants’ record was due to be received by the RAD on or before June 30, 2017, and that to date the RAD “has received neither the appellant’s [sic] record nor an application for an extension of time to perfect an appeal,”
the member dismissed the appeal for lack of perfection. There is no mention of Ms. Guetter’s July 25, 2017, letter in the reasons or in the request for directions.
[10]
The Statement of Service sheet attached to the reasons and decision dismissing the appeal indicates that a copy of the decision and reasons was sent to, among others, the applicants and the immigration consultant (who by this point was no longer representing the applicants). The reasons and decision were not sent to Ms. Guetter.
[11]
On October 18, 2017, the applicants applied to re-open their RAD appeal. Ms. Guetter continued to represent them. The application to re-open was supported by detailed evidence and submissions addressing, among other things, the alleged inadequate assistance provided to the applicants by the immigration consultant when their matter was before the RPD and during the initial stages of their appeal to the RAD.
[12]
In a covering letter sent to the RAD along with the application to re-open the appeal, Ms. Guetter stated that she had sent the immigration consultant a copy of the application as well as a copy of the applicants’ complaint to the Immigration Consultants of Canada Regulatory Council [ICCRC] about him. Ms. Guetter also stated that proof of delivery “will be filed as soon as it is available.”
This proof (a print-out of a Canada Post tracking form) was provided to the RAD a few days later under a covering letter from Ms. Guetter dated October 23, 2017.
[13]
The RAD denied the application to re-open on December 4, 2017.
[14]
Before considering the RAD’s reasons for denying the application, it may be helpful first to set out the timelines and procedures that govern appeals to the RAD.
III.
TIMELINES AND PROCEDURES GOVERNING APPEALS TO THE RAD
[15]
The respective rights of an unsuccessful refugee claimant and the Minister of Citizenship and Immigration [the Minister] to appeal to the RAD are established by section 110 of the IRPA. The procedures for pursuing an appeal, including the applicable timelines, are found in the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] and the Refugee Appeal Division Rules, SOR/2012-257 [Rules].
[16]
Generally speaking, an appeal to the RAD must be commenced within fifteen days of when the person or the Minister receives the RPD’s written reasons for the decision (Regulations, s 159.91(1)(a)). The appeal must then be perfected within thirty days of receipt of the written reasons (Regulations, s 159.91(1)(b)). The contents of the appellant’s record required to perfect an appeal are set out in sections 3(3) and 9(2) of the Rules for, respectively, an appeal by an unsuccessful refugee claimant and an appeal by the Minister. Among other things, the appellant must provide all or part of the transcript of the RPD hearing that the appellant wishes to rely upon in the appeal and any new evidence the appellant is seeking to rely on under section 110(4) of the IRPA.
[17]
Under section 159.91(2) of the Regulations, the RAD may extend the time limits for commencing or perfecting an appeal “for reasons of fairness and natural justice.”
Under Rule 6(4), an application for an extension of time to commence an appeal must be accompanied by three copies of a written notice of appeal. Under Rule 6(5), an application for an extension of time to perfect an appeal must be accompanied by two copies of the appellant’s record. (Rule 6 also provides for extensions of time to file a reply to a Minister’s intervention in an appeal but this has no bearing on the present application.) Rule 6(7) provides that, in deciding an application for an extension of time, the RAD “must consider any relevant factors, including (a) whether the application was made in a timely manner and the justification for any delay; (b) whether there is an arguable case; (c) prejudice to the Minister, if the application was granted; and (d) the nature and complexity of the appeal.”
Rule 12 similarly provides for extensions of time in appeals by the Minister.
[18]
Under Rule 7, the RAD may, without further notice to the appellant or to the Minister, decide an appeal on the basis of the materials provided if, among other contingencies, “the time limit for perfecting the appeal set out in the Regulations has expired.”
Rule 13 makes similar provision for the disposition of appeals by the Minister (although not, apparently, simply because the appeal has not been perfected within time).
[19]
Under Rule 49, an appellant may apply to the RAD to re-open an appeal that has been decided or declared abandoned. Such an application must be made before the Federal Court has made a final determination in respect of the appeal. (Under section 171.1 of the IRPA, the RAD does not have jurisdiction to re-open an appeal on any ground – including a failure to observe a principle of natural justice – if the Federal Court has made a final determination with respect to that appeal.) In this connection, Rule 49(5) states that the application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review.
[20]
Under Rule 49(7), in deciding an application to re-open an appeal, the RAD “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.”
However, Rule 49(6) states that the RAD “must not allow the application [to re-open] unless it is established that there was a failure to observe a principle of natural justice.”
Given the context, I take this to mean a failure to observe a principle of natural justice in relation to the appeal that is the subject of the application to re-open, and not in the original proceeding before the RPD.
[21]
Finally, under Rule 49(4), if it is alleged in the application to re-open an appeal that the appellant’s counsel “in the proceedings that are the subject of the application provided inadequate representation,”
a copy of the application must first be provided to the former counsel and the application provided to the RAD “must be accompanied by proof that a copy was provided to the counsel.”
Again, given the context, I take “the proceedings that are the subject of the application”
to mean the appeal that has been disposed of and whose re-opening is now being sought, as opposed to the original proceeding before the RPD.
[22]
The pertinent sections of the IRPA, the Regulations and the Rules are set out in the Annex to these reasons.
IV.
DECISION UNDER REVIEW
[23]
The RAD member found that the applicants had not established that there was a failure to observe a principle of natural justice and, as a result, dismissed the application to re-open the appeal. This conclusion was based on the following findings:
The member rejected the applicants’ contention that the immigration consultant had told them he did not know how to proceed with an appeal because he was not gay.The member found that the immigration consultant must have known how to proceed with an appeal since he had filed the Notice of Appeal.
The member apparently rejected the applicants’ contention that the immigration consultant had represented them inadequately because “[t]here is no confirmation from the ICCRC that this complaint was received or acted upon”
by the ICCRC and because counsel for the applicants failed to provide proof that a copy of the application to re-open and the ICCRC complaint had been provided to the immigration consultant, as required by Rule 49(4).
The member found that Rules 49(5) and 49(7)(b) had not been followed: “There is nothing in the documentation to indicate that the judicial review was initiated or the reasons why it wasn’t.”
(Confusingly, the member also states that Rule 49(7)(a) had not been followed either but then later in the reasons appears to accept counsel’s explanation for the time it took to file the application to re-open.)
Finally, the member found that Ms. Guetter’s letter of July 25, 2017, was “not probative in indicating that the Applicants were continuing to pursue the appeal.”
V.
STANDARD OF REVIEW
[24]
Although the issue has arisen only a few times, this Court has consistently held that the standard of review applicable to the RAD’s decision to deny an application to re-open an appeal is that of reasonableness: see Khakpour v Canada (Citizenship and Immigration), 2016 FC 25 at paras 19-21; Aguirre Renteria v Canada (Citizenship and Immigration), 2016 FC 996 at para 12; and Atim v Canada (Citizenship and Immigration), 2018 FC 695 at para 31 [Atim]. (In Raza v Canada (Citizenship and Immigration), 2016 FC 250, the question of the standard of review was left open.) Applying the reasonableness standard, the reviewing court examines the decision for “the existence of justification, transparency and intelligibility within the decision-making process”
and determines “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
[25]
At first glance, it may appear surprising that the reasonableness standard of review would apply since the question the RAD must address is whether there was a failure to observe a principle of natural justice, an issue that usually engages the correctness standard of review (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]). However, it is the RAD that is tasked with determining whether there was a failure to observe a principle of natural justice in relation to the appeal whose re-opening was sought, not this Court (Atim at para 33). A decision on such a question is typically one of mixed fact and law, something that is generally reviewed on a reasonableness standard (Dunsmuir at paras 51 and 53-54).
[26]
On the other hand, if the allegation were that the RAD member who denied an application to re-open an appeal had failed to observe a principle of natural justice, it would be this Court’s task to determine whether the process the member followed satisfied the level of fairness required in all of the circumstances (Khosa at para 43; Canadian Pacific Railway Co. v Canada (Attorney General), 2018 FCA 69 at para 54). This is an issue with respect to which no deference is owed to the decision-maker; the reviewing court would make its own determination. The same is true if the allegation on judicial review were that counsel who had acted for an applicant on an application to re-open an appeal had provided inadequate assistance in that proceeding: see Atim at para 32.
VI.
ISSUE
[27]
The sole issue on this application is whether the RAD member’s decision to deny the application to re-open the applicants’ appeal is reasonable.
VII.
ANALYSIS
[28]
As set out above, Rule 49(6) states that the RAD may re-open an appeal that has been dismissed only if it finds that there was a failure to observe a principle of natural justice. In other words, a failure to observe a principle of natural justice is a necessary condition for an appeal to be re-opened. The presence of Rule 49(7) suggests that this alone may not also be a sufficient condition to re-open an appeal; other “relevant factors”
may warrant denying an application to re-open, even if a failure to observe a principle of natural justice is established (e.g. an unexplained failure to bring the application to re-open in a timely manner).
[29]
In a nutshell, the applicants’ position on the application to re-open was that they had an ongoing intention to pursue their appeal to the RAD, they were unable to perfect the appeal within time because of the uncooperativeness and, more generally, the inadequate representation of the immigration consultant after the RPD denied their claims, and the dismissal of their appeal under such circumstances constituted a denial of natural justice.
[30]
In my view, the RAD member’s decision to deny the application to re-open is unreasonable in the following key respects.
[31]
First, the member found no merit in the applicants’ claim that the immigration consultant had told them that he did not know how to proceed with an appeal because he was not gay. The member rejected this claim because the consultant “obviously was aware of the procedure because he initiated the [Notice of Appeal].”
In doing so, the member fundamentally misunderstood what the applicants said they were told by the immigration consultant. The immigration consultant did not mean that he did not know how to conduct an appeal. What he meant was that he could not assist the applicants with their appeal because, not being gay, he would not be able to advance the appeal effectively. This was why he recommended a lesbian lawyer to them. More to the point, whether or not the immigration consultant’s reason for withdrawing withstands scrutiny, it is indisputable that, shortly after the Notice of Appeal was filed, he refused to assist the applicants further, they had to find new representation, and this contributed to the delay in perfecting their appeal.
[32]
Second, the member faults the applicants for not following Rule 49(5). However, this rule was not even engaged. The applicants could not file a copy of an application for leave for judicial review or an application for judicial review because there was none to file.
[33]
Third, the member also faults the applicants for not following Rule 49(7)(b). This rule requires the RAD to consider, if an applicant 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. It is true that the applicants did not say anything in their application to re-open about why they had not applied for leave for judicial review. However, any reasonable person would recognize that such an application would have little chance of success unless and until the alternative remedy available under Rule 49 had been exhausted. The approach taken by the applicants promotes the efficient and effective use of judicial resources. While it would have been preferable if the applicants had addressed Rule 49(7)(b) in their submissions, the member’s reliance on this factor is unreasonable.
[34]
Fourth, the member appears to disregard the applicants’ allegations of inadequate representation because there was no “confirmation”
that the ICCRC had received or acted upon a complaint about the immigration consultant and because there was no proof that the application to re-open and the ICCRC complaint had been provided to the immigration consultant. The absence of a decision from the ICCRC is a red herring. While a decision on the complaint could have some probative value for the RAD on the question of whether the immigration consultant’s representation of the applicants was inadequate, the absence of a decision is evidence of nothing. More importantly, there was proof that the application to re-open (which included the complaint to the ICCRC) had been sent to the immigration consultant – namely, Ms. Guetter’s written representations to this effect. Ms. Guetter may not have followed best practices in how she sought to fulfill the requirements of Rule 49(4)(b). Nevertheless, in the circumstances of this case, it was unreasonable for the member not to accept the representations of a member of the bar at face value.
[35]
Fifth, on a related point, the member faults the applicants for not providing the immigration consultant with a copy of the application to re-open before it was filed with the RAD, as required by Rule 49(4)(a). Certainly it simplifies matters if proof of delivery can be filed with the RAD at the same time as the application to re-open. Counsel should make every effort to ensure that this is what happens. When this does not happen, the important question is whether the rationale for the rule has been met. This rule, like Rule 62(4) of the Refugee Protection Division Rules, SOR/2012-256 (concerning re-opening a refugee claim), and like this Court’s March 7, 2014, Procedural Protocol regarding allegations against counsel or authorized representatives, serves the important function of ensuring that an individual whose conduct is impugned has an opportunity to respond to the allegations. This is only fair to the former counsel or representative. It also enhances the ability of the tribunal to adjudicate the issue properly (Canada (Citizenship and Immigration) v Singh, 2016 FCA 96 at para 67; Shabuddin v Canada (Citizenship and Immigration), 2017 FC 428 at para 18; Pacheco v Canada (Citizenship and Immigration), 2018 FC 617 at paras 19-22).
[36]
Here, no doubt Ms. Guetter was trying to file the application record as soon as possible and wanted to avoid the additional delay that would be caused by waiting for proof of delivery to the immigration consultant. Her attempt to expedite matters, while understandable, did not comply with Rule 49(4)(a). That being said, the rationale for the rule was met: the immigration consultant was provided with a copy of the application record promptly and had an opportunity to respond (which opportunity he chose not to take up). In such circumstances, to allow the failure to comply with Rule 49(4)(a) to weigh against granting the application to re-open is to permit form to triumph over substance.
[37]
Finally, it was unreasonable for the member to find that Ms. Guetter’s letter of July 25, 2017, “is not probative in indicating that the Applicants were continuing to pursue the appeal.”
I simply cannot fathom how the letter could mean anything but this. Ms. Guetter stated that she had been retained by the applicants for the purpose of the appeal. She was urgently requesting material she required to perfect that appeal, the time for which she acknowledged had already passed. It is true that the letter does not state that she had requested an extension of time to perfect the appeal. However, under Rule 6(5) she could not make such an application until she was ready to file the appellants’ record and she could not prepare the appellants’ record until she had the recording she was requesting with the July 25, 2017, letter.
[38]
In a case where an extension of time is sought to perfect an appeal, the timeliness of the application and the justification for any delay have a direct bearing on whether an extension should be granted (see Rule 6(7)). The reasons why an appeal that has been dismissed for lack of perfection was not perfected within time are just as important on an application to re-open the appeal (cf. Justice Diner’s helpful discussion of the rules governing applications to re-open refugee claims in Huseen v Canada (Citizenship and Immigration), 2015 FC 845, especially paras 31-33 and the cases cited therein).
[39]
Having taken the view of the July 25, 2017, letter he did, perhaps it is not surprising that the member did not go on to consider whether the August 21, 2017, decision dismissing the appeal was rendered without regard to this letter and whether this, in and of itself, occasioned a violation of the principles of natural justice. However, given the only meaning this letter could reasonably bear, it was unreasonable for the member not to address these questions.
VIII.
CONCLUSION
[40]
For these reasons, the RAD member’s decision denying the application to re-open the appeal must be set aside. The matter is remitted to a differently constituted panel for reconsideration.
[41]
The parties did not suggest any questions of general importance. I agree that none arise.
[42]
Finally, the original style of cause names the respondent as the Minister of Immigration, Refugees and Citizenship. Although that is how the respondent is now commonly known, its name under statute remains the Minister of Citizenship and Immigration: Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 5(2) and IRPA, s 4(1). Accordingly, as part of this judgment, the style of cause is amended to name the respondent as the Minister of Citizenship and Immigration.
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