MB7-25894

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. / No de dossier de la SAR : MB7-25894 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision January 18, 2018 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Isaac Owusu Sechere Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION Application for an Extension of Time to File and Perfect an Appeal [1] On December 21, 2017, the appellant, XXXX XXXX, filed a notice of appeal with the Refugee Appeal Division (RAD) against a decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. The notice of decision from the RPD is dated November 4, 2016, and the appellant is deemed to have received it on November 14, 2016. [2] On December 21, 2017, the appellant also submitted an application for an extension of time to file an appeal. [3] The notice of appeal was filed after the time limit. The time limit to file a notice of appeal, as set out in subsection 159.91(1) of the Immigration and Refugee Protection Regulations (IRPR), was November 28, 2016. According to subparagraphs 159.91(1)(a) and (b) of the IRPR, an appeal must be filed within 15 days of the day on which the written reasons for the decision are received by the applicant, and the appeal must be perfected within 30 days of the day on which the written reasons for the decision are received. Subsection 159.91(1) states: 159.91 (1) Subject to subsection (2), for the purpose of subsection 110(2.1) of the Act, o (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 o (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. [4] Subsection 159.91(2) of the Regulations reads as follows: 159.91 (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. [5] There are three components to this subsection. First, the appellant must have been unable to file and perfect the appeal within the prescribed time limits. The appellant should provide an explanation for the delay and demonstrate a continuing intention to pursue the appeal. An affidavit should be submitted to that effect. Second, the subsection refers to "necessary" number of days. The appellant must provide an explanation for each additional day requested. Third, time extensions must be granted for reasons of procedural fairness and natural justice. [6] The panel is also guided by Canada (Attorney General) v. Pentney, 2008 FC 96, which establishes four factors to take into account when considering applications for an extension of time: a) the appellant's continuing intention to pursue the appeal; b) whether the appeal has merit; c) a reasonable explanation for the delay; and d) no prejudice to the other party. It is not necessary for the appellant to meet all of these factors. When considering these factors, the panel should first and foremost ensure that procedural fairness and the principles of natural justice are respected. [7] In his application, the appellant explains the delay of more than 13 months to file his notice of appeal as follows: * He was advised by a friend and his former counsel not to appeal to the RAD, which they claimed would have been a waste of time and money; * In XXXX 2017, he moved to the city of Ottawa, where his brother-in-law lives, seeking help with his case. He was turned down by the Ottawa South Community Legal Clinic before meeting his current counsel in July 2017; * Although he knew that the time limit for filing his appeal had expired, his counsel asked him to obtain new documents from his country of origin in order to demonstrate the problems he alleged to have experienced there; * Since his family members are dispersed, it was not until December 2017 that he obtained documents from the mayor of the village where he was living in his country of origin. [8] The Minister of Public Safety and Emergency Preparedness of Canada (the Minister) did not intervene in this case. [9] I am of the opinion that the appellant has not demonstrated a continuing intention to pursue his appeal, nor was it was impossible for him to file his appeal within the prescribed time limits. Even if his first counsel advised him to not file an application to appeal, the appellant found himself new counsel only in July 2017, that is, about seven months after he had received the RPD's decision. I am of the opinion that the steps taken by the appellant in this regard are not sufficient to demonstrate an intention to pursue his appeal. [10] Moreover, it also does not seem reasonable to me that the appellant, after having found new counsel, waited another five months or so to file his notice of appeal. The explanation that he was waiting for new documents from his country is not satisfactory because, firstly, he had no assurances that he would obtain them and, secondly, under rule 29 of the RAD Rules, an appellant can always file additional documents after perfecting his or her appeal. [11] Consequently, I find that the appellant has not provided a reasonable explanation for the 13-month delay in filing his notice of appeal, and that he has not demonstrated that an extension of time to file his appeal should be granted for reasons of procedural fairness and natural justice. [12] The application for an extension to file an appeal is dismissed. [13] The appeal is dismissed. Normand Leduc Normand Leduc January 18, 2018 Date IRB translation Original language: French 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-25894 4