TB5-06203

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 : TB5-06203 Private Proceeding / Huis clos Application for Extension of Time to Perfect an Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 30, 2015 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Adrienne C. Smith 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 XXXX XXXX ("the Appellant") makes an application requesting an extension of time to file a Notice of Appeal and an Appeal Record to perfect an appeal of a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. DETERMINATION OF THE APPLICATION [2] The Refugee Appeal Division ("RAD") denies the application for an extension of time to file the Notice of Appeal and the Appellant's Record. Therefore, the appeal is dismissed. Application for Extension of Time to file the Notice of Appeal and the Appellants' Record [3] The hearing before the RPD was held on May 27, 2015. The RPD gave a written decision dated June 4, 2015 finding that the Appellant was not a Convention refugee or a person in need of protection. The Notice of Decision of the RPD was sent by regular mail on June 10, 2015 and deemed to be received on June 17, 2015. The Appellant filed a Notice of Appeal on June 18, 2015 stating that the date of the Notice of Decision was June 10, 2015 and the date the decision was received as June 15, 2015. The perfected Appellant's Record was due to be received by the RAD on July 17, 2015. On September 11, 2015, an Appellant's Record was received along with an application for extension of time to file the Appellant's Record with the RAD. A copy of the application was provided to the Minister of Citizenship and Immigration ("the Minister") by courier on September 15, 2015. To date, there has been no reply from the Minister. [4] 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. [5] 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. 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. [6] These factors are not exhaustive, and other factors may be considered. 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 Appellant was one day late in filing the Notice to Appeal and 56 days late in perfecting the appeal. Counsel for the Appellant had written to the Division on July 14, July 27 and August 7 requesting that the RAD not dismiss the appeal for lack of perfection before the Appellant received a decision regarding a pending application for Legal Aid. According to the July 14, 2015 letter, it was expected that the appeal record would be perfected within two to three weeks. In the letter of July 27, 2015, counsel writes that "We will be perfecting the appeal as soon as practically possible after receiving a decision from LAO" (Legal Aid Ontario). In the letter of August 7, 2015, counsel reiterates the request that the RAD not decide on the appeal until the Appellant receives a decision from LAO and the record may be perfected. [7] The Appellant states in her affidavit, filed with the application and the record, that when she received the RPD's decision, she immediately went to XXXX XXXX XXXX XXXX XXXX within three days of receiving the negative decision. That organization helped her to file the Notice of Appeal. She met with a lawyer on June 29, 2015 who suggested that she apply to Legal Aid Ontario so that she could retain him to represent her on appeal. [8] Ultimately the Legal Aid Ontario funding was approved, and counsel was notified of this approval on August 11, 2015. The Appellant then explains: Since I met with my lawyer on June 29, 2015, I have been contacting friends and other organizations to get new documents to support my appeal. I received the last of my supporting documents on September 9, 2015. This appeal is being filed as soon as possible after I received the supporting documents. [9] The Appellant has provided evidence that, upon receiving her negative RPD decision, she immediately sought assistance from the community and filed a Notice of Appeal only one day late. There are three letters from counsel asking that the RAD not dismiss the appeal because the Appellant was waiting for legal aid to be granted. These show a continuing intention to pursue the appeal. The Appellant's memorandum claims erroneous credibility findings; therefore, there appears to be an arguable case. The Minister has not responded to the application, so there appears to be no prejudice to the other party. [10] However, the RAD finds that there is not a reasonable explanation for the two-month delay. A Federal Court case2 has stated that: This Court has often held that waiting for a response from Legal Aid is not a reasonable explanation for delay: Espinoza v. Canada (Minister of Employment and Immigration) (FCA), [1992] FCJ No 437 and Zeng v. Canada (Minister of Citizenship and Immigration), [1998] FCJ no 1005. [12] The Federal Court has held:3 [20] The right to counsel is not absolute; what is absolute, however, is the right to a fair hearing..... [25] The following principles can therefore be drawn from the case law: although the right to counsel is not absolute in an administrative proceeding, refusing an individual the possibility to retain counsel by not allowing a postponement is reviewable if the following factors are in play: the case is complex, the consequences of the decision are serious, the individual does not have the resources - whether it terms of intellect or legal knowledge - to properly represent his interests. [13] The Federal Court has also stated:4 [19] The applicant was attempting to obtain Legal Aid funding in order to retain a lawyer to help him complete his PIF which was due to be filed on December 29, 2004. He was unable to obtain approval for his lawyer prior to this date and he requested a two-week extension in which to file his request. That request was denied. The applicant submitted that it was patently unreasonable to expect him to dispense with the services of a lawyer to assist him with the preparation of his PIF. I do not agree, as this Court and the Federal Court of Appeal have held that the delay in obtaining Legal Aid and legal counsel is not in and of itself a sufficient reason for allowing a prescribed time limit to pass. [15] The Federal Court has also stated:5 [11] In Kiani v. Canada (Minister of Citizenship and Immigration) 124 F.T.R. 299, at para. 5, Mr Justice Muldoon confirmed that waiting for confirmation of legal aid is not an adequate excuse for allowing a prescribed time limit to pass. He asserted that the principle was virtually inscribed in stone and cited by Mr. Justice Mahoney, for the Federal Court of Appeal in Espinoza v. M.E.I. [1992] F.C.A.D. 1486-15, 92-A-1361. [11] It is submitted that the first month passed because the Appellant was waiting to receive an approval for funding of her appeal which was not received until August 11, 2015. The RAD finds that the right to counsel is not absolute. There was no issue of fairness and no breach of natural justice. The factors set out in the Mervilus case cannot be automatically applied to this situation before the RAD. However, this is not an overly complex matter. The Appellant could have filed an appellant's record by the prescribed date and then filed an amended record if necessary. Rule 29 of the RAD Rules allows for an application to be made for filing additional documents and submissions after an appeal has been perfected. The decision is serious, but the Applicant has already had a hearing before the RPD. There is no indication that the Appellant lacks the intellect to at least file an appellant's record that could be amended. This delay, as a result of waiting for a response from Legal Aid, causes great concern and is not a reasonable explanation, despite communication with the RAD prior to the documents being filed. It is submitted that the second month passed because the Appellant was waiting for documents to support her appeal. Once the last one was received on September 9, 2015, the record was filed two days later. [12] The RAD finds the delay is lengthy and that it has not been justified in its entirety. The jurisprudence outlined above is clear that waiting for a response from legal aid is not an adequate excuse for allowing a prescribed time limit to pass. Even after a delay of one month for funding approval by the LAO, the record still was not perfected for another month, presumably because the Appellant was awaiting documents to support her appeal. The RAD finds that this does not justify an extension of one more month. The Appellant has recourse in RAD Rule 29 to apply to the Division to submit documents after the appeal has been perfected, and this avenue was not taken. [13] The Appellant has not satisfied the requirements for an extension of time. The application for extension of time is therefore denied. The appeal is dismissed. (signed) "Deborah Morrish" Deborah Morrish November 30, 2015 Date 1 Canada (Attorney General) v. Pentney, (F.C., no. T-645-06), Lemieux, January 25, 2008, 2008 FC 96. 2 Flores Cabrera, Luis Enrique v. M.C.I. (F.C., no. IMM-3751-11), Zinn, November 2, 2011, 2011 FC 1251. 3 Mervilus v. M.C.I. (F.C., no. IMM-800-03) Harrington, September 2, 2004, 2004 FC 1206. 4 Kogo v. M.C.I. (F.C., no. IMM-651-05) O'Keefe, March 14, 2006, 2006 FC 325. 5 Shokri v. M.C.I. (F.C., no. IMM-1768-01) Blanchard, July 12, 2002, 2002 FCT 785. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06203