TB6-04670

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 : TB6-04670 TB6-04671 TB6-04672 TB6-04673 Private Proceeding / Huis clos Application for Extension of Time to File or Perfect an Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 4, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Leigh Salsberg 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 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the "Appellants") made 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 their claims 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 March 23, 2015. The RPD gave a written decision dated May 11, 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 May 21, 2015 and deemed to be received on May 28, 2015. The Appellant filed a Notice of Appeal on April 06, 2016 stating that the date of the Notice of Decision was May 21, 2015 and the date the decision was received as May 28, 2015. The perfected Appellant's Record was due to be received by the RAD on June 29, 2015. On April 04, 2016, 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 April 08, 2016. 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 Appellants were 299 days late in filing the Notice to Appeal and 283 days late in perfecting the appeal. [7] The Appellant, XXXX XXXX XXXX XXXX speaking for the others, states in her affidavit, filed with the application and the record, that when they received the RPD's decision, they immediately went to see the Counsel who represented them at the RPD hearing. That counsel Luis Antonio Monroy advised them that they could appeal the RPD decision to the Federal Court for judicial review. That counsel prepared and filed the application for leave in Federal Court, however the case was dismissed without reasons on December XXXX, 2015. The Appellants met with their current counsel in late December 2015, but did not meet and discuss their situation fully until late in January 2016. [8] The Legal Aid Ontario funding was approved, and counsel was notified of this approval. The Appellants then explains: We have been contacting relatives to get new documents about the ongoing threats. It took some time to send the documents and have them translated.2 [9] The Appellants speaking through the affidavit of XXXX XXXX XXXX XXXX have provided evidence that, upon receiving their negative RPD decision, they sought assistance from their former counsel, who advised them that they should appeal to the Federal Court. There is a letter submitted to RAD from their former counsel Luis Antonio Monroy who explains his strategy to go to Federal Court instead of filing an Appeal to RAD. [10] The Appellants after receiving their negative decision attended three appointments with CBSA regarding their removal, the appointments taking place July 30, 2015, September 30, 2015 and December 17, 2015 where the officer deferred their removal to June which allowed the children to complete the school year. [11] 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. [12] The RAD has considered the Pentney factors as outlined above. The Appellants have shown a continued intent to pursue their appeal. There is no apparent prejudice to any other party because, although the Minister was apprised of the presented application, the Division has not received a response. It can also be found that the appeal discloses an arguable case. However, it is not necessary that all factors be met, and the RAD finds that the Appellants have not provided a reasonable justification for the delay as described below. [13] The Appellants were represented by competent counsel at their RPD hearing and then at their application for judicial review at the Federal Court. The fact that Counsel may have overlooked something or has not fully prepared the case or his strategy did not pan out, is not something that should be able to be remedied at the RAD level. [14] It is submitted that upon receiving their negative decision they contacted their former counsel who filed an application for leave to the Federal Court. There was no issue of fairness and no breach of natural justice. However, this is not an overly complex matter. The RAD finds the delay is lengthy and that it has not been justified in its entirety. [15] The RAD finds that the Appellants have not provided a reasonable justification for the 283-day delay in perfecting the appeal. The RAD further finds that fairness and natural justice in the circumstances do not require an extension of time because adequate resources would have been available to the Appellants. Had their counsel filed the Appeal to the RAD within the appropriate time, request for an extension of time would not be necessary. [16] The Appellants have not satisfied the requirements for an extension of time by providing a reasonable explanation for an extensive delay of 299 days. [17] The Refugee Appeal Division denies the application for an extension of time to file the Notice of Appeal and the Appellant's Record. The appeal is dismissed. (signed) "Luis F. Agostinho" Luis F. Agostinho May 4, 2016 Date 1 Canada (Attorney General) v. Pentney, (F.C., no. T-645-06), Lemieux, January 25, 2008, 2008 FC 96. 2 Exhibit P-3, Affidavit of XXXX XXXX XXXX XXXX, para 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-04670 TB6-04671 TB6-04672 TB6-04673