Docket: IMM-2162-18
Citation: 2019 FC 103
Ottawa, Ontario, January 24, 2019
PRESENT: The Honourable Madam Justice Simpson
| BETWEEN:
|
| ZAMZAM ALI MASOUD (AKA NATALYA MASOUD ALLY) AND NURJANNAH MLINDE MABROUK (AKA NURJANNAH SALEH)
|
| Applicants
|
| and
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| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Proceeding
[1]
This application is for judicial review of a decision of the Refugee Appeal Division [RAD] of April 19, 2018, refusing the Applicants’ application to re-open their appeal [the Decision]. This application was brought pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA].
II.
Background
[2]
The Applicants are a mother and her three year old daughter, who are citizens of Tanzania. The Mother claimed refugee status on the basis of her sexual orientation. The Refugee Protection Division [RPD] denied the Applicants’ claim and the RAD received the Applicants’ Notice of Appeal on September 7, 2017 [the Appeal].
[3]
By letter dated September 26, 2017, counsel for the Applicants advised the RAD that she needed an extension of time to perfect the Appeal until October 9, 2017 [the Deadline].The Applicants’ counsel failed to perfect by the Deadline and did not seek a further extension of time.
[4]
In a decision dated December 4, 2017, almost two months after the Deadline, the RAD dismissed the Appeal for lack of perfection under Rule 3 of the RAD Rules [the Dismissal].
[5]
On February 1, 2018, the RAD received an application to reopen the Appeal. The Applicants submitted documentation showing i) that their counsel was ill and only able to work on an intermittent basis from October 1, 2017 to November 16, 2017 and ii) that she was unable to work at all from December 18, 2017 to December 30, 2017. However, counsel was at her office between November 16 and December 18, 2017.
[6]
The Applicants also submitted an affidavit from Mohamad Omar sworn on January 18, 2018, which showed that between September and December 2017 the Applicants were engaged in contacting people overseas with a view to assembling more documents for their Appeal.
III.
The Decision
[7]
The RAD did not accept that her illness explained why the Applicants’ counsel was unable to request a further extension of time and perfect the Appeal in November and December 2017 when she was working on a full-time basis.
[8]
The RAD noted that the only other explanation provided was that the Applicants had advised their counsel in December that they expected to receive additional documentation in support of the Appeal. However, the RAD held that perfecting an appeal cannot be delayed for the purpose of gathering and translating new evidence because Rule 29 of the RAD Rules allows applicants to tender new evidence after an appeal has been perfected.
[9]
It is noteworthy that the RAD was not asked to consider whether counsel had made mistakes or errors when she failed to perfect the Appeal or seek an extension. The issue of possible inadequate representation was not raised before the RAD. Accordingly, the RAD had no basis for a finding that there had been a breach of natural justice.
[10]
Accordingly, the RAD found that the Applicants did not provide any reasonable explanation for their failure to contact the RAD and advise it of their intention to perfect their Appeal.
[11]
The RAD further concluded that the Applicants had not demonstrated a continuous intention to pursue their appeal and had not justified each day of the delay.
IV.
The Relevant Rule
[12]
Motions to reopen are governed by RAD Rule 49 (See attached Appendix). Briefly, Rule 49(6) provides that the RAD cannot re-open an appeal, unless it is established that there was a failure to observe a principle of natural justice. Rule 49(7) sets out the factors to be considered when deciding whether to re-open once a breach of natural justice has been established. These factors include whether the application was made in a timely manner and the justification provided for any delay.
V.
Discussion
[13]
In their memorandum of law and argument for this Judicial Review, the Applicants submit that the Dismissal involved a failure of natural justice by the RAD in that it eliminated their right of appeal when they were not at fault. Rather, the illness of counsel and the delay in obtaining the new evidence led to the Dismissal.
[14]
However, in my view, the RAD reasonably concluded that:
[15]
In the alternative, the Applicants make a new argument on this judicial review and submit that their counsel’s mistakes in failing to perfect the Appeal and in failing to seek a further extension of time give rise to a breach of natural justice in that their appeal rights were lost.
[16]
In my view, this submission is not persuasive because RAD Rule 49(4) creates a separate procedure to be followed when Applicants seek to reopen based on inadequate representation. Since the Applicants did not rely on Rule 49(4), it is not open to them to assert inadequate representation as a breach of natural justice on this judicial review when this submission was not made on the application to re-open before the RAD.
[17]
In the absence of a finding that there had been a breach of natural justice, the RAD did not need to consider the other factors, such as the Applicants’ continuing intention to appeal.
VI.
Conclusion
[18]
The RAD’s conclusion that there had been no breach of natural justice was reasonable and, without more, justified the Decision.
VII.
Certification
[19]
No question was posed for certification for appeal.
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