MB6-04421

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 : MB6-04421 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 August 31, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Chantal Ianniciello Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION Application for an Extension of Time to File and Perfect the Appeal [1] On August 11, 2016, the appellant filed before the Refugee Appeal Division (RAD) an application for an extension of time to file an appeal, but failed to attach three copies of the notice of the appeal, as required under subrule 6(4) of the Refugee Appeal Division Rules. [2] In a letter dated August 15, 2016, the RAD Registry informed the appellant's counsel that the application for an extension of time did not comply with the Rules. As of this date, the RAD has received neither a notice of appeal nor an appellant's record. [3] Our records indicate that the notice of decision that accompanied the Refugee Protection Division's reasons rejecting the refugee protection claim is dated May 27, 2016; the appellant is therefore deemed to have received it on June 3, 2016. [4] The time limit to file the notice of appeal and to perfect the appellant's record has expired, as the time limit set out in section 159.9 of the Immigration and Refugee Protection Regulations (IRPR) to file the notice of appeal was June 20, 2016, and to perfect the record was July 4, 2016. According to paragraphs 159.91(1)(a) and (b) of the IRPR, an appeal must be filed within 15 days after the day on which the written reasons for the decision are received, and the appeal must be perfected within 30 days after the day on which the written reasons for the decision are received. Subsection 159.91(1) states as follows: 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. [5] Subsection 159.91(2) of the IRPR states: 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. [6] 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 must provide an explanation for the delay and demonstrate a continuing intention to pursue the appeal. An affidavit must be filed to that effect. Second, the subsection refers to "necessary" number of days. The appellant must provide an explanation for every extra day requested. Third, extensions of time must be granted for reasons of procedural fairness and natural justice. [7] The panel is also guided by Canada (Attorney General) v. Pentney, 2008 FC 96, which establishes four factors to consider in applications for an extension of time: a) a continuing intention to pursue the appeal; b) an arguable case; c) a reasonable explanation for the delay; and d) no prejudice to the other party. The appellant is not required to meet all these factors. In considering these factors, the panel must ensure, first and foremost, that procedural fairness and the principles of natural justice are respected. [8] I am of the opinion that the application for an extension must be dismissed, for the following reasons. [9] First, as mentioned above, the appellant in this case did not file copies of the notice of appeal, even after he was notified by the RAD Registry. [10] Then, in his application for an extension, the appellant explained only briefly that he received the RPD decision on July 14, 2016, and that he misunderstood the time limit to file a notice of appeal. [11] In my opinion, the appellant did not explain in his application the possible reasons why he apparently did not receive the RPD decision until July 14, 2016, when the said decision was sent on May 27, 2016. He also failed to reasonably explain his delay-since July 14, 2016-in filing his appeal. [12] I am therefore of the opinion that the appellant did not demonstrate that there was a breach of procedural fairness or of the principles of natural justice that would warrant the granting of an extension of time to file an appeal. [13] The application for an extension of time and the appeal are therefore dismissed. Normand Leduc Normand Leduc August 31, 2016 Date IRB translation Original language: French 1 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB6-04421 4