MB5-01426

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 : MB5-01426 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal (Quebec) Appel instruit à Date of decision May 28, 2015 Date de la décision Panel Me Diane Sokolyk Tribunal Counsel for the person who is the subject of the appeal Nadine Edirmanasinghe Conseil de la personne en cause Counsel for the Minister N/A Conseil du ministre Reasons and Decision for the Application for an Extension of Time to Perfect an Appeal [1] XXXX XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He is reputed to have received the reasons of the RPD on March 19, 2015. The Notice of Appeal was received by the Refugee Appeal Division (RAD) on April 1, 2015. [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's appeal was to be perfected on or before April 18, 2015. [3] The Appellant has filed an Application for an Extension of Time to Perfect an Appeal, which was received by the RAD on April 28, 2015. The Appellant's appeal record was produced 10 days late, on April 28, 2015. On the Application for an Extension of Time to Perfect an Appeal accompanying the Application, the Appellant's counsel explains that the Appellant's record was late because despite the best efforts of the Appellant and Counsel, they did not have sufficient time to obtain a legal aid certificate or arrange for an interpreter. [4] The Appellant asks that, for reasons of fairness and natural justice, his application be allowed and the requested extension of time granted. [5] The Minister has not responded to this Application. DETERMINATION OF THE APPLICATION [6] The RAD accepts the application for an extension of time to perfect this appeal. Application for Extension of Time [7] 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." [8] 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 Appellants 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. Jurisprudence has established four factors to be considered in applications for extension of time before courts or administrative tribunals: 1 (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. [9] 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. [10] In this case, the Appellant filed his Notice of Appeal within the delay. The appeal was filed 10 days late. In the application, supported by an affidavit of XXXX XXXX, Immigration consultant, the Appellant's counsel filed a detailed explanation of the attempts to obtain a legal aid certificate with exhibits. Counsel further explains that there were difficulties in obtaining an interpreter. In this case, each of the four factors has been met. The file is declared complete as of May 25, 2015. Diane Sokolyk Me Diane Sokolyk May 28, 201 Date /dlg 1 Canada (Attorney General) v. Pentney, 2008 FC 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB5-01426 RAD File No. / N° de dossier de la SAR : MB5-01426 3 4