[1]        The Minister of Citizenship and Immigration Canada (“Minister”) makes an application requesting an extension of time to file and perfect an appeal of a decision of the Refugee Protection Division (RPD) accepting the claims for refugee protection of XXXX XXXX, XXXX XXXX, XXXX XXXX and XXXX XXXX, nationals of Romania.   

[2]        The Refugee Appeal Division (“RAD”) denies the application for an extension of time to file the Notice of Appeal and file the Appellant’s Record and dismisses the Appeal.

[3]        The respondents alleged before the RPD that they were discriminated against and persecuted in Romania because of their Roma ethnicity. They alleged verbal insults, threats, refusal of services and physical abuse.

[4]        They left Romania and they travelled through Belgium, Spain, France and the United States of America. They arrived in Canada and they made claims for refugee protection. The RPD found that they were Convention refugees.   

[5]        The hearing before the RPD was held on March 15, 2013. The RPD gave an oral decision on that date finding that the respondents were Convention refugees. The written notice of decision from the Immigration and Refugee Board of Canada (IRB) was dated April 5, 2013. The Minister acknowledges receipt of the decision on April 9, 2013. The Minister submits that the decision is deemed to have been received on April 12, 2013.

[6]        On May 30, 2013 a Notice of Appeal prepared by the Minister was filed with the Refugee Appeal Division (RAD). The Notice of Appeal had been served on the respondents and the respondents’ counsel. The Minister stated with the Notice of Appeal that they would be applying for an extension of time for the filing of the Notice of Appeal.

[7]        On June 4, 2013, the Minister filed with the RAD an Application for an Extension of Time to File. The document stated that the application was made in accordance with Rule 12(1) and 37 of the RAD Rules. The Minister asked for an extension of time to file a Notice of Appeal. The application stated that the Minister was deemed to have received the decision from the RPD on April 12, 2013. The document states that “Given that the lead claimant was originally detained, Citizenship and Immigration Canada sent the decision to the CBSA Hearings Office as one of approximately 67 RPD decisions sent on April 12, 2013. It was CBSA’s responsibility to decide whether to appeal this decision to the RAD.”

[8]        The appellant states that CBSA was not aware that the claims of the respondents had been joined with four members of the family of the principal respondent’s brother. The four members of the brother’s family are “Designated Foreign Nationals” (DFN) under section 20.1 of IRPA. This raised a number of concerns for the appellant. Designated Foreign Nationals are of particular concern to CBSA in regard to Canada’s security. CBSA wishes to have an opportunity to consider intervention in the refugee claims of all Designated Foreign Nationals. CBSA was unable to do so in this case, as it was unaware that the claims of the two families had been joined together. The appellant may appeal this decision to the RAD with respect to the four non-designated claimants but it cannot appeal the decision of the Designated Foreign Nationals to the RAD. The appellant must seek leave of the Federal Court to judicially review the same decision with regard to the Designated Foreign Nationals. The appellant claims that the simultaneous challenge to one decision in two different forums at different levels raises concerns regarding consistency in judicial and quasi-judicial decision-making.

[9]        The appellant states that concerns with respect to how to proceed in the circumstances required extensive consultation within the CBSA Toronto Hearings Office and its legal advisors. These consultations only began after discovery of the complications involved in this decision on May 1, 2013, after both the RAD appeal and judicial review application deadlines had passed.

[10]      The appellant stated that the appeal has merit in that the RPD’s decision fails to analyze evidence with respect to state protection, fails to consider the possibility of an internal flight alternative, relies on errors of fact with respect to asylum claims in the USA and fails to consider the manner in which the respondents came to Canada. The appellants request an extension of time be granted in view of the unprecedented combination of designated and non-designated claimants, the Minister’s lack of knowledge of this combination and non-participation in the RPD hearing, the time required to obtain the files of two separate families and copies of evidence that was before the RPD and the merits of this appeal. The appellant submits that in the unique circumstances of this case it is in the interest of fairness and natural justice to grant the request of extension of time.

[11]      On June 10, 2013 the respondents filed with the RAD a Notice of Intent to Respond to the Minister’s Application for an Extension of Time to File Appeal. There were no documents filed with the Notice but it contained a statement that the counsel’s retainer was limited at that time to the filing of the Notice.

[12]      On June 14, 2013, the Minister filed with the RAD an application for an extension of time to file an Appeal Record along with the Appeal Record itself. The appellant submits that the Appeal Record is being filed within 15 days after the filing of the Notice to Appeal filed on June 4, 2013. The appellant states that this should be considered reasonable under the circumstances, as the Regulations provide that the appealing party would have 15 days to file her appeal record after the Notice to Appeal would be due. The appellant further submits that the delay in filing the appeal record was caused in part by the fact that the appellant was waiting for documentation from the RPD regarding what was before the RPD at the original hearing. This information was received by the appellant on May 31, 2013. The appellant states that further research regarding the respondents and conditions in Romania were needed as the appellant was not a party to the original proceedings before the RPD. The appellant requests as an extension of time be granted for the filing of the Appeal Record in the interest of fairness and natural justice.

[13]      The respondents filed their Appeal Record on June 28, 2013. The respondents state that their claims were joined with the family of the brother of the principal respondent in February 2013. The respondent sought a postponement on March 12, 2013 to allow for a better preparation of the newly-joined claims. This postponement request was denied by the RPD. The Minister did not participate in the hearing on March 15, 2013. The respondents were not aware that the Minister had any intention to intervene in the matter until they were served with the Notice of Appeal and Extension of Time on June 4, 2013, some two months after the positive decision.

[14]      The respondents maintain that the main basis of the Minister’s appeal is that DFN claims were joined with non-DFN claims, which raises jurisdictional issues and unspecified concerns for the Minister and the Minister would have intervened in the hearing had it been aware that the DFN claims were joined with non-DFN claims. The Minister argues that the RPD ought to have notified the Minister that it was joining the claims.

[15]      It is not known if, in fact, the RPD did or did not notify the Minister, or what its obligations may be, if any, to do so. It is clear that on May 1, 2013, the Minister became aware of the fact that DFN claims were joined with non-DFN claims. However, it did not file a Notice of Appeal until May 30, 2013 and, on June 4, 2013, filed an application for extension of time to file the Notice of Appeal. The Minister cites workload and the challenges such a case poses and the need to consult with its legal advisors.

[16]      Section 159.91 of the IRPA Regulations states:

[17]      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 law[1] has established four factors to be considered in applications for extension of time before courts or administrative tribunals:

[18]      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. 

[19]      Rule 37 of the RAD Rules governing applications, states that unless the Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application. The only statutory declaration in this matter was provided by Lauren Gamble, a Hearings Officer, stating that she reviewed the file for appeal purposes and discovered that documents from the Refugee Protection Division were delivered to the Toronto Hearings and Appeals Office for CBSA on May 31, 2013. These documents were exhibits at the RPD hearing. There is no other evidence that has been provided in support of the application for extension of time by statutory declaration.

[20]      I find that there is not a reasonable explanation for the Minister's delay in this matter. The Minister explains the delay in filing a Notice of Appeal on the complications arising from the fact that the RPD hearing joined the claims of Designated Foreign Nationals (DFNs) to family members who were not DFNs. The RPD decisions the Minister seeks to appeal are the decisions pertaining to the non-Designated Foreign Nationals. The fact that their claims were joined with claims of the other members of their family, who were DFNs, should not be a factor in considering whether to appeal these decisions of the RPD. The fact that there were extensive consultations within the Minister's office as to how to proceed in this matter is not a reasonable explanation for the delay. The Minister was given a copy of the RPD's reasons for decision in a timely manner and if the Minister was of the opinion that there should be an appeal on the merits of the non-DFN decision then they would be in a position to file a Notice of Appeal and to perfect the matter within the required time. There is nothing unusual in the exhibits that were before the RPD, or the issues canvassed and decided at the RPD hearing, and the Minister has access to documentary evidence in regard to conditions for Roma in Romania. It was not necessary to wait for the RPD exhibit list.

[21]      The subject matter of the appeal including state protection, internal flight alternative, errors of fact in regard to asylum claims in the U.S.A. and failure to consider the manner in which the respondents came to Canada are not unusual issues. It would not have required extensive consultations if the Minister wished to appeal initially on these issues and to prepare a Notice of Appeal and Appeal Record and file them within the timeframes set out in the Regulations.

[22]      There may be an arguable case since these kinds of issues are regularly canvassed at an RPD hearing. However, even the arguable case is weak because the appeal is based largely on arguments that would have the RPD re-weigh documentary evidence that it has assessed already. This has not been supported by the Federal Court in judicial review cases.  

[23]      There would be prejudice to the respondents in allowing the extension of time since nearly eight weeks passed from the time the Minister received the decision of the RPD until the Notice of Appeal was sent to the RAD. The respondents had made arrangements to proceed with their life in Canada and they would be prejudiced in having to change these plans after that period of time.

[24]      In the circumstances of this case, the Minister has not satisfied the RAD that there is a reasonable explanation for the considerable period of delay in filing the Notice of Appeal. The RAD finds that it would not be fair to the respondents to extend the time for filing the Notice of Appeal and Record of Appeal for nearly eight weeks after the Minister received the RPD’s decision.

[25]      The application for extension of time is therefore dismissed and the appeal is also dismissed.