TB7-19581

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 : TB7-19581 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 30, 2017 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mark Rosenblatt 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Applicant") makes 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 his 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 the Appellant's Record [3] The hearings before the RPD were held on March 24, 2017, and September 15, 2017. In a decision of September 22, 2016, RPD found that the Applicant was neither a Convention refugee nor a person in need of protection. The Notice of Decision of the RPD was sent by regular mail on September 25, 2017, and deemed to be received on October 2, 2017. [4] The Applicant filed a notice of appeal on October 12, 2017. The perfected Appeal Record was due on November 1, 2017, and was received by the RAD on November 2, 2017. The Applicant filed a request for an extension of time. [5] The documents were provided to the Minister of Citizenship and Immigration ("Minister") by courier on November 8, 2017. To date there has been no reply from the Minister. Analysis [6] 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. [7] 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. [8] 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. [9] A sworn affidavit submitted by counsel Mark Rosenblatt indicated that there was a clerical error, and that was the reason for the delay of one day in submitting the Appellant's Record. Counsel submits that natural justice, and a delay of one day, should not penalize his client. [10] The RAD finds that the affidavit supports the lateness of the documentation for appeal. The RAD finds that the delay of one day due to a clerical error is insufficient to deny the request for an extension of time. The Applicant has satisfied the requirements for an extension of time. The application is therefore allowed. (signed) "Robert S. Garner" Robert S. Garner November 30, 2017 Date 1 Canada (Attorney General) v. Pentney, Lemieux, January 25, 2008, 2008 FC 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-19581