MB6-06376

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 : MB6-06376 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision December 8, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the person(s) who is(are) the subject of the appeal Richard Wazana 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 ministre REASONS AND DECISION FOR THE APPLICATION FOR AN EXTENSION OF TIME TO FILE OR PERFECT AN APPEAL [1] XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. His Notice of Appeal was received by the Refugee Appeal Division (RAD) on October 20 2016. The notice of decision of the RPD is dated May 4, 2016, and the Appellant is reputed to have received it on May 11, 2016. [2] Section 159.91(1) of the amended Immigration and Refugee Protection Regulations provides that the time limit for a person or the Minister to file an appeal is fifteen days after the day on which the RPD's reasons are reputed to be received, while the time limit to perfect an appeal is thirty days after the receipt of those reasons. As such, the Appellant Notice of Appeal was to be filed on or before May 26, 2016, and his appeal was to be perfected on or before June 10, 2016. [3] The Appellant has filed an Application for an Extension of Time to File or Perfect an Appeal, which was received by the RAD on November 10, 2016, with the Appellant's record. [4] In the Application, the Appellant explains that the delay in filing his notice of appeal and his Appellant's record is due to the fact that his counsel did not think that he was entitled to a RAD appeal because he had claimed asylum at the port of entry in Quebec, after having crossed illegally the border. Therefore, on May 24, 2016, the Appellant filed a leave application at the Federal court that was granted on August 18, 2016. [5] It is only in XXXX 2016, that counsel for the Respondent at the Federal court told the Appellant's counsel that the Appellant was entitled to a RAD appeal because his claim had not been referred to the RPD pursuant to the Third Safe Country Agreement. [6] Section 159.91(2) of the Regulations states : "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." [7] This provision contains three requirements. First, it must not be possible for an appeal to be filed and perfected within the time limits set out. Under this element, the Appellant 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 granted for reasons of fairness and natural justice. Jurisprudence has established four factors to be considered in the application of extension of time before courts or administrative tribunals1: (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. [8] These factors are not exhaustive, and other factors may be considered, such as, for example, the complexity of an appeal, a factor mentioned in RAD Rule 6(7). All of 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 to be applied to determine whether fairness and natural justice in the circumstances require an extension of time for a particular number of days. [9] In the RAD's view, the Appellant has given a reasonable explanation for the delay and shows a continuing intention to pursue his appeal. [10] There is no evidence of a prejudice to the other party, the Minister, who not only did not object to the present application, but also suggested it. [11] The application is granted and the file is perfected as of today, December 8, 2016. Normand Leduc Normand Leduc December 8, 2016 Date /ag 1 Canada (Attorney General) v. Pentney, 2008 FC 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Available in English RAD File No. / N° de dossier de la SAR : MB6-06376 3