VB6-02946

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : VB6-02946 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX Personne(s) en cause the subject of the appeal Also Known As XXXX XXXX XXXX Appeal considered at Vancouver, BC Appel instruit à Date of decision October 21, 2016 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person(s) who is(are) N/A Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Refugee Appeal Division (the "RAD") received on August 26, 2016 a Notice of Appeal (NOA) from the decision of the Refugee Protection Division (the "RPD") in the claim of XXXX XXXX also known as XXXX XXXX XXXX (the "appellant"), a national of Jamaica. The NOA indicated that the appellant received the written reasons for the RPD decision on August 17, 2016. [2] On September 20, 2016, the RAD received an application for extension of time to perfect the appeal (the "application"). In the application, the appellant requested an extension for an unspecified time as he was seeking further documents. [3] On September 23, 2016, the RAD advised the appellant in writing that the application was incomplete as the appellant had not provided two copies of the appeal record as required under Rule 6(5) of the Refugee Appeal Division Rules (the "RAD Rules").1 The appellant was advised that the application was therefore denied. [4] According to RAD Rule 6, an appellant may apply to the RAD for an extension of time to file or perfect their refugee appeal. [5] Subsection 159.91(1) of the Immigration and Refugee Protection Regulations (the "Regulations")2 states: 159.91(1) Time limit for appeal - 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. 159.91(2) Extension - 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 law3 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 party's 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 submitted the application on September 20, 2016, one day before the expected perfection date of September 21, 2016. I find that the application for extension of time to file the appeal was made in a timely manner. [9] I note that since filing the application with the RAD on September 20, 2016, there has been no further communication from the appellant. Consequently, I find that the appellant has failed to demonstrate a continuing intention to pursue the appeal. [10] The appellant did not provide any information on the grounds for this appeal in the applications, nor have any other documents been provided. Consequently, I find that the appellant has failed to demonstrate that the subject matter of the appeal discloses an arguable case. [11] Finally, I have considered the factor of whether or not there would be any prejudice to the other party (i.e., the Minister), in allowing the extension. As the Minister has not yet intervened, there is no other party at this time to this appeal. As per RAD Rule 6(2), the Minister was copied on the applications but did not provide any comments. [12] Having considered the four factors outlined above regarding applications for extension of time before courts or administrative tribunals, I reject the application for extension of time to file the NOA as the appellant has failed to demonstrate a continuing intention to pursue this appeal and he has also failed to disclose an arguable case in this appeal. [13] The appeal is dismissed because the appellant failed to perfect this appeal by not providing the appellant's record within the prescribed time required by paragraph 159.91(1)(b) of the Regulations and subsection 3(5) of the RAD Rules. Paragraph 159.91(1)(b) of the Regulations provides that the time limit to perfect the appeal is 30 days after the day on which the appellant receives written reasons for the RPD decision. (signed) "Douglas Fortney" Douglas Fortney October 21, 2016 Date 1 Refugee Appeal Division Rules, SOR/2012-257. 2 Immigration and Refugee Protection Regulations, SOR/2002-227. 3 Canada (Attorney General) v. Pentney, 2008 FC 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB6-02946