March 3, 2020

Refugee Appeal Division’s Decision Dismissing Application to Re-open Appeal Returned for Re-determination

In the recent decision of Maxamud v Canada (Citizenship and Immigration), 2020 FC 121, the Honourable Mr. Justice Ahmed presided over the Judicial Review of a decision by the Refugee Appeal Division (“RAD”) dismissing the Applicant’s application to reopen his appeal, after the appeal was dismissed for lack of perfection.

The Applicant, a 24-year old citizen of Ethiopia, made a claim for refugee protection when he arrived in Manitoba, Canada, based on fear of persecution by the Ethiopian police. The Applicant alleged that the police killed his family members, arrested him without charge, and imprisoned him for a two-month period where he was repeatedly beaten and tortured. Regrettably, the claim was dismissed by the Refugee Protection Division (“RPD”) on 10 July 2018. The Applicant, with the assistance of his previous counsel, filed a Notice of Appeal to the RAD accompanied by an extension of time to perfect the Appeal Record. 

Unbeknown to the Applicant, his counsel at the time failed to perfect the Appeal Record by the stipulated date, 16 August 2018 and once informed, believed that his counsel would have submitted an application to reopen the appeal, having signed an affidavit in support of the same. The Applicant relocated to Toronto and sought legal assistance due to a loss of confidence in his previous counsel. 

The Applicant, with the assistance of his current counsel, submitted an application to reopen his appeal on 20 March 2019. It was submitted that the dismissal of the appeal was in breach of natural justice as 1. the Applicant’s former counsel was overwhelmed with the transfer of files from another lawyer; 2. former counsel was diligent in trying to obtain an extension of time; 3. the Applicant was entitled to make submissions regarding his appeal; 4. the Applicant had a continuing intention to appeal the decision refusing his refugee claim; and 5. no prejudice would arise from granting the application. 

The RAD dismissed the application on the grounds that it was not brought promptly as his refugee claim was dismissed more than six months prior. The Division further found that the Applicant was advised to seek other counsel. Submissions as to whether the initial appeal dismissal was being judicially reviewed were not provided and that while the Applicant stated he had lost confidence in his previous counsel, no allegations of the inadequacy of counsel was raised. In all, the RAD dismissed the application on 15 April 2019. It was determined that the Applicant’s arguments were based on a lack of legal counsel to prepare the Record within the required time- frame, which failed to demonstrate a breach of natural justice. 

In allowing the Application for Judicial Review, the Honourable Mr. Justice Ahmed held that the RAD erred in failing to consider the reasons that may have justified the delay in bringing the application to reopen the appeal. Importantly, he noted that the RAD’s finding that the Applicant failed to make any argument on the timeliness of applying was in error, as the circumstances surrounding the Applicant’s former counsel’s failure to perfect the appeal and also the Applicant’s search for a new lawyer were provided. He further highlighted that the RAD erred in finding that current counsel made no submissions as to whether an Application for Leave and Judicial Review was filed with the Court as the submission was made by the Applicant explaining why this avenue was not pursued. In a firmly phrased statement, the Honourable Mr. Justice Ahmed stated that “ […] where one’s most vulnerable interests are at stake, the RAD unreasonably found that there was no breach of natural justice by simply focusing on the passage of time, without a view of the circumstances that resulted in the six-month gap”. He held that the RAD failed to consider the evidence before it in assessing whether there was a breach of natural justice rendering the decision unreasonable. The matter was sent back to the RAD for re-determination by a different Member.