TB3-04476

RAD File No. / N° de dossier de la SAR : TB3-04476 Private Proceeding / Huis clos Application for Extension of Time to File Appellant's Record Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 12, 2013 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Application for Extension of Time to File Appellant's Record Reasons And Decision [1] XXXX XXXX makes an application requesting an extension of time to file an Appeal Record to perfect an appeal of a decision of the Refugee Protection Division ("RPD") rejecting her claim for refugee protection. DETERMINATION OF THE APPLICATION [2] The Refugee Appeal Division ("RAD") allows the application for an extension of time to file the Appellant's Record. Application for Extension of Time to file Appellant's Record [3] The hearing before the RPD was held on May 14, 2013 and May 28, 2013. The RPD gave a written decision dated June 19, 2013, finding that the appellants were not Convention refugees or persons in need of protection. On July 4, 2013, the appellant filed a Notice of Appeal with the RAD. The Notice of Appeal was provided to the Minister of Citizenship and Immigration ("Minister") by fax on July 5, 2013. The Notice of Appeal stated that the date of notice of decision was June 25, 2013 and the date the RPD's decision received was July 3, 2013. The RAD received an application for extension of time to perfect an appeal and the appellant's appeal record on August 6, 2013. The application and the appellant's appeal record were provided to the Minister by courier on August 8, 2013. The Minister has not responded to the application as of today's date. [4] The appeal record was due to be filed by August 2, 2013. [5] Section 159.91 of the Immigration and Refugee Protection Act (IRPA) Regulations states: (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 the 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] This provision contains three requirements. First, it must not be possible for an appeal to be filed and perfected within the time limits of respectively, 15 and 30 calendar days. Under this element, the party seeking an extension of time must provide an explanation for the delay and must show a continuing intention to appeal during the delay. RAD Rule 37(4) requires the evidence to be in the form of an affidavit or statutory declaration. Second, any extension must be only for the number of days necessary in the circumstances. This requirement suggests that the delay should be as short as possible or, in other words, that every day of delay should be justified. The reference to "circumstances" implies an individualized assessment of the circumstances in each particular request for an extension of time. Third, any extension must be for reasons of fairness and natural justice. Case law1 has established four factors to be considered in applications for extension of time before courts or administrative tribunals: (a) there was and is a continuing intention on the part of the party presenting the motion to pursue the appeal; (b) the subject matter of the appeal discloses an arguable case; (c) there is a reasonable explanation for the defaulting parties delay; and (d) there is no prejudice to the other party in allowing the extension. [7] These factors are not exhaustive, and other factors may be considered (for example, the complexity of an appeal, a factor mentioned in RAD Rule 6(7)). All the factors do not have to be met. The appropriate weight must be assigned to each factor in the context of a particular case. The four factors are being applied to determine whether fairness and natural justice in the circumstances require an extension of time for a particular number of days. [8] The appellant has provided an affidavit from XXXX XXXX, who is a XXXX XXXX XXXX the appellant's XXXX. Mr. XXXX picked up the appeal record on August 2, 2013 and was instructed that it was to be filed with the RAD on that day. He tried to combine this task with another job, but he was caught in traffic, and he was unable to file the document on that date. The appeal record was filed with the RAD on the next business day which was August 6, 2013. [9] The appellant has provided an explanation for the delay. In considering fairness and natural justice, there was and is a continuing intention on the part of the appellant to continue with the appeal. The memorandum of fact and law raises the issues of ignoring relevant evidence and adverse credibility findings. The memorandum of the appellant discloses an arguable case. The Minister has not responded to the application, and so there appears to be no prejudice to the other party. As stated above, there is a reasonable explanation for the delay. [10] The appellant has satisfied the requirements for an extension of time. The application for extension of time is therefore allowed. (signed) "Ken Atkinson" Ken Atkinson September 13, 2013 Date 1 Canada (Attorney General) v. Pentney, 2008 FC 96. g. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-04476