TB3-03365

RAD File No. / N° de dossier de la SAR : TB3-03365 TB3-03366 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 15, 2013 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION [1] The appellants make an Application for an Order to set aside the Notice of Decision of the Refugee Appeal Division (RAD) dated June 21, 2013 and Reasons and Decision, dated June 20, 2013, declaring that the appeal is dismissed for not being perfected; and for an Order to reopen the appeal of the applicants, allowing them an opportunity to have their Appellants' Record and application for extension of time to perfect, submitted concurrently with this application to reopen, assessed by the Refugee Appeal Division. DETERMINATION OF THE APPLICATION [2] Pursuant to Rule 49 of the RAD Rules, the RAD sets aside the decision of the RAD declaring that the appeal was dismissed for not being perfected and orders that the appeal be reopened. The RAD also orders that pursuant to section 159.91(2) of the Regulations of the Immigration and Refugee Protection Act (IRPA) and Rule 6 of the RAD Rules, an extension of time be granted to this date, for the appellants to submit their Appeal Record, that was submitted concurrently with this application, and the perfected appeal is to be considered by the RAD. BACKGROUND [3] The appellants filed a Notice of Appeal on May 17, 2013. The principal appellant, XXXX XXXX XXXX, states in an affidavit filed in this matter, that she applied for Legal Aid in regard to an appeal but it was not clear at that point whether such funding would be provided. Her counsel agreed to a limited-scope retainer on a pro-bono basis to assist her in filling out and filing the Notice of Appeal. She had to perfect the appeal by May 31, 2013. On May 21, 2013 she was advised that Legal Aid was not approved for the appeal. She states that she then had to go to relatives to try and obtain funds to retain a lawyer. [4] The principal appellant was pregnant at the time and her expected due date was around XXXX XXXX, 2013. She had been booked to have a caesarean procedure on XXXX XXXX XXXX 2013. She began having contractions on XXXX XXXX, 2013 and she went to XXXX General Hospital. She gave birth to a baby boy that day. The baby was born underweight and was categorized as an infant at medium risk. The baby was delivered by caesarean procedure and the principal appellant had staples in her abdomen from the surgery. She was scheduled for a follow-up appointment on XXXX XXXX, 2013 and she was told that the staples would be removed ten days after the delivery date. She has provided hospital records showing the delivery and the designation of the baby as medium risk. She was able to sign a private retainer with her lawyer to represent her in the appeal on June 3, 2013. She told her lawyer that there was a woman who could attest to her identity, which was one of the main issues in the RPD decision. [5] The principal appellant states that this woman was not able to sign an affidavit until June 21, 2013. This was the day her appeal was dismissed for lack of perfection. She also states that she was not able to obtain other documents from Kenya and have them translated until July 2, 2013. The Application to Reopen and the Application for Extension of Time to Perfect the Appeal, along with a complete record, were filed on July 8, 2013. The principal appellant says that it was always her intention to file and perfect her appeal. She was not able to obtain all the documents she wished to advance in her appeal within the allowed time due to the birth of her child and the other circumstances she has described. She has not filed an application for judicial review with the Federal Court. DECISION [6] Rule 49(1) of the Refugee Appeal Division Rules provides that: At any time before the Federal Court has made a final decision in respect of an appeal that has been decided or declared abandoned, the appellant may make an application to the Division to reopen the appeal. [7] The appellants state that they have not made an application for judicial review to the Federal Court. [8] The Rule also states that a copy of the application must be provided to the Minister by the Division. This was done on July 9, 2013. [9] Rule 49(6) states that: The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice. [10] Rule 49(7) provides: In deciding the application, the Division must consider any relevant factors, including: (a) whether the application was made in a timely manner and the justification for any delay; and, (b) if the appellant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made. [11] The RAD accepts the medical evidence that the appellants made this application after the principal appellant gave birth to a child by a caesarean procedure, earlier than expected, XXXX days before the last date to file the appeal record. The principal appellant had to care for herself and her newborn child, who was categorized as a medium risk due to being born underweight. She faced delays in privately retaining counsel and obtaining evidence to complete her appeal record. [12] The issue is whether there was a failure to observe a principal of natural justice in this particular case. Jurisprudence sets out that the concept of natural justice or procedural fairness varies according to the circumstances of the case.1 The unique features of a case should be taken into consideration in determining if natural justice was denied. In this particular case, natural justice requires that the appellants be given the opportunity to explain why they did not perfect their appeal within the required time and why their application for extension of time should be considered by the RAD. I find that the unique features of this case, namely that the principal appellant gave birth by caesarean procedure at the time of the deadline for filing the appeal record, should be considered by the RAD before dismissing the appeal and the appellant has the right to be heard on this matter. Failure to hear the application for an extension of time would be a failure of natural justice. The appellants were required to prepare the appeal record and an application for extension of time to be filed concurrently with this application. As this is the applicant's first reopening application, and as the application is clearly meritorious, I find the failure to file an application for judicial review is a neutral factor in this particular case. I find that, in considering all the documents filed by the appellants, the application has been made in a timely manner and any delay was justified. [13] According to Rule 6 of the Refugee Appeal Division Rules, an appellant may apply to RAD for an extension of time to file or perfect their refugee appeal. Rule 6(5) provides that if the appellant seeks an extension of time to perfect an appeal, two copies of the appellants' record must be included with the application. [14] Section 159.91 of the 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. [15] 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. Under this element, the party seeking an extension of time 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. Case law2 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. [16] These factors are not exhaustive, and other factors may be considered (for example, the complexity of an appeal, a factor mentioned in RAD Rule 6(7)). All 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 being applied to determine whether fairness and natural justice in the circumstances require an extension of time for a particular number of days. [17] The issue as to whether the application for extension of time was made in a timely manner and the justification for the delay has been dealt with in the application to reopen the matter. The principal appellant states that she has new evidence to prove her identity. The issue of identity was one of the main issues resulting in a negative decision at the RPD. There appears to be an arguable case. The Minister was not a party to the original case before the RPD and the Minister has not chosen to intervene in this case to date. The appellants have demonstrated the continuing intention to pursue their appeal by gathering documents in support, in including new evidence. [18] I have considered the factors and I find that the appellants should be granted an extension of time to perfect the appeal. REMEDIES [19] Pursuant to Rule 49 of the RAD Rules, it is ordered that the decision of the RAD declaring that the appeal was dismissed for not being perfected be set aside and it is ordered that the appeal be reopened. [20] It is also ordered, pursuant to section 159.91(2) of the Regulations of the Immigration and Refugee Protection Act (IRPA) and Rule 6 of the RAD Rules, that an extension of time be granted to this date, for the appellants to submit their Appeal Record and the perfected appeal is to be considered by the RAD. (signed) 'Ken Atkinson' Ken Atkinson August 15, 2013 Date 1 Baker v. Canada, [1999} 2 S.C.R. 817. 2 Canada (Attorney General) v. Pentney, 2008 FC 96. g --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-03365 TB3-03366