MB4-05384

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 : MB4-05384 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 January 29, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Vincent Desbiens Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du Ministre REASONS AND DECISION Application for Extension of Time to File and Perfect an Appeal [1] On December 29, 2014, the appellant submitted to the Refugee Appeal Division (RAD) a notice of appeal against a decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. The notice states that he received the RPD's reasons rejecting his refugee protection claim on June 6, 2014. [2] The same day, December 29, 2014, the appellant submitted an application for an extension of time to file and perfect an appeal. [3] The time limit for filing the notice of appeal and perfecting the appellant's record has expired. Under section 159.91 of the Immigration and Refugee Protection Regulations (IRPR), the notice of appeal had to be filed by June 23, 2014, and the record had to be perfected by July 8, 2014. 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: 159.91 (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 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 (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 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. [5] There are three components to this subsection. First, an appellant must have been unable to file or perfect their appeal within the prescribed time limits. The appellant must provide an explanation for the delay and demonstrate a continued intention to pursue the appeal. An affidavit must be filed to that effect. Second, the subsection mentions a "necessary" number of days. [6] 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 continued intention to pursue the appeal; (b) an arguable case; (c) a reasonable explanation for the delay; and (d) no prejudice to the other party. An 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] In this case, an application for an extension of time to file and perfect an appeal was submitted to the RAD on December 29, 2014, and the appellant's record was filed that same day. [9] The appellant explains in his application that he received the RPD's reasons rejecting his refugee protection claim on June 6, 2014. The notice of decision that accompanied the reasons did not mention the possibility of appealing the decision before the RAD and erroneously indicated that the appellant could apply to the Federal Court for judicial review of the decision. [10] The appellant's counsel at the time applied to the Federal Court for leave and for judicial review. In his submission, counsel representing the Minister of Immigration in the case before the Federal Court also did not raise the issue of the RAD's or the Federal Court's jurisdiction. On November 7, 2014, the Federal Court dismissed the application for leave and for judicial review. [11] The appellant met his current counsel for the first time on December 5, 2014. The appellant obtained a copy of his record from his former counsel and met again with his current counsel on December 12, 2014, and they subsequently filed this application. [12] The Minister of Public Safety and Emergency Preparedness Canada (the Minister) did not intervene in this case. [13] I consider that the appellant showed that it was impossible for him to file his notice of appeal within the prescribed time limit because of errors made by both the RPD in its notice of decision and his counsel afterwards. I am of the opinion that he established a continued intention to pursue his appeal by filing his notice of appeal and the appellant's record within a reasonable time frame, given the holiday season, after he met with his current counsel. I find that there is no prejudice to the other party in this case, namely, the Minister. For reasons of procedural fairness and natural justice, the application for an extension of time is allowed, and the panel accepts the appeal record submitted on December 29, 2014. [14] The application is allowed, and the appellant's record is considered to have been perfected on December 29, 2014. Normand Leduc Normand Leduc January 29, 2015 Date IRB translation Original language: French N° de dossier de la SAR / RAD File No.:MB4-05384 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-05384 2