Date: 20070611
Docket: IMM-1176-07
Citation: 2007
FC 621
Toronto, Ontario, June 11, 2007
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
YI
CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
UPON MOTION in writing on
behalf of the Applicant dated May 16, 2007, pursuant to Rule 369 of the Federal
Courts Rules for an Order for an extension of time within which to serve
and file the Applicant’s Application Record in support of his Application for
Leave and for judicial review.
[2]
AND
UPON reading
the Motion Record and Written Representations of the Applicant and the
Respondent’s Motion Record and Written Submissions and the Reply Submissions of
the Applicant.
[3]
Applications for leave in immigration matters are intended to
proceed expeditiously. As such, an Applicant who does not comply with the
timelines set out in the Federal Court Immigration and Refugee Protection
Rules, 1993 SOR/93-22 must establish good reason to deviate from these
strict timelines. Here, the Applicant seeks an extension of time in which to
file his Application Record. The Applicant should have filed his Application
Record on April 18, 2007 but did not do so and brought this motion on May 18,
2007 – a month later. The motion is opposed by the Respondent.
[4]
The four factors set out in Canada (Attorney
General) v. Hennelly, [1999] F.C.J. No. 846
(F.C.A.) para. 3, govern the discretionary decision of whether or not to grant an
extension of time. Thus, to be granted an extension of time, the Applicant
must show:
1.
a continuing intention to pursue the application;
2.
that the application has some merit;
3.
that there will be no prejudice to the Respondent from the delay; and
4.
that there is a reasonable explanation for the delay exists.
[5]
A further factor sometimes considered is
whether an extension should be granted in order to do justice between the
parties. (see, The Minister of Citizenship and Immigration. v. Simakov,
2001 FCT 469 at paras. 3-5).
[6]
Assuming, without deciding,
that the first and third requirements are met, I find that the Applicant has failed
to satisfy the second and fourth requirements. The Applicant has not provided a
full explanation for all of the delay. The only explanation given for
the delay is that the Applicant did not have the funds to retain counsel as
Legal Aid Ontario declined to fund the appeal. The Applicant vaguely states in
his affidavit that he was able to raise funds by the week of May 14, 2007. However, there is no detail as to when Legal Aid was approached, when it
was denied and when he obtained the necessary finds other than a vague
reference to the week of May 14. As this court has observed, lack of financial
means is not a compelling answer to explain away delay. (see Awogbade v.
The Minister of Citizenship and Immigration,[1996] F.C.J. No. 570, at
para. 4; Woo v. The Minister of Citizenship and Immigration,
[1998] F.C.J. No. 1248, at para. 16). While the Applicant may meet part of the
test including a continuing intention to pursue the appeal, I am not persuaded
on the record before me that the Applicant satisfies two parts of the test
being some merit to the application and, in particular, no reasonable
explanation for the delay. The tests are conjunctive and all four must be
met. Further, in my view, the justice of the case does not merit an extension
being granted. I decline to order the extension.
ORDER
THIS COURT ORDERS that
1.
This
motion be dismissed.
“Kevin
R. Aalto”
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