Docket: IMM-4745-15
Citation:
2016 FC 459
Ottawa, Ontario, April 22, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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OGUZHAN KORKMAZ
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant failed to perfect his appeal to
the Refugee Appeal Division of the Immigration and Refugee Board [RAD] within
the time limits set out in the Refugee Appeal Division Rules, SOR/2012-257
[the RAD Rules]. He sought an extension of time which was refused. He submits
that this decision is unreasonable and he asks that it be set aside and that
his application for an extension of time be determined anew by the RAD.
Background
[2]
The applicant sought refugee protection,
claiming persecution in Turkey because of his Kurdish ethnicity, his Alevi
identity, and his imputed political opinion. On June 4, 2015, the applicant’s
refugee claim was denied by the Refugee Protection Division of the Immigration
and Refugee Board [RPD].
[3]
Despite living in Edmonton, the applicant made
his refugee claim in Toronto. He did so on the advice of his brother-in-law,
and because there was no Turkish interpreter available in Edmonton. The
applicant was assisted by an interpreter [the Interpreter] in Toronto, who had
previously assisted his brother-in-law in filing his own refugee claim. The
applicant lived in Toronto while his claim was being heard and then returned to
Edmonton, where he awaited a decision.
[4]
The decision was sent to the applicant by mail
on June 8, 2015, and is deemed to have been received by him on June 15, 2015. The
applicant in fact received the RPD’s decision on June 18, 2015. At around this
time, he was informed by his counsel that she could not continue to represent
him on his appeal. She provided him with a list of six experienced immigration
lawyers in Toronto and a copy of the CD of the RPD hearing.
[5]
On June 24, 2015, the applicant flew to Toronto
to meet with the Interpreter and to find new counsel. He was assisted in his
search by the Interpreter, who attests to that fact and that his current
counsel was retained on June 30, 2015, “after
contacting several people.” The Interpreter also assisted the applicant
in filing out the Notice of Appeal and an application for an extension of time
as it was expected that one would be needed.
[6]
The Notice of Appeal was filed on July 3, 2015.
On July 14, 2015, the applicant’s current counsel received his file from his
former counsel. On July 16, 2015, the applicant filed an Application for an
Extension of Time to File or Perfect an Appeal, requesting an extension to
perfect his appeal by August 3, 2015. Upon receiving the application, the RAD
informed counsel that a request for an extension must be accompanied by the
applicant’s entire RAD record, pursuant to Rule 6 of the RAD Rules.
Nonetheless, the Board granted an extension until July 27, 2015.
[7]
On August 8, 2015, current counsel received the
RPD hearing transcripts. In an affidavit of counsel’s “part-time
legal assistant” it is attested that she received the CD on July 23,
2015, but due to the recent death of her father and additional time off work,
she only completed the transcription on August 8, 2015.
[8]
On August 11, 2015, counsel sent an affidavit
for the Application Record, with attached exhibits, to the applicant, to be
commissioned and returned. Unfortunately, when the documents were returned,
counsel noticed that the exhibits had not been commissioned. With the Interpreter’s
assistance, the applicant communicated that he would not be able to have the
exhibits commissioned and return them to his counsel until the following week.
The applicant explained that he “faces various barriers
in communication, transportation and with his work schedule that prohibit being
able to find access a lawyer on an urgent basis.” The applicant stated
that he is “willing and able to re-commission the
exhibits and send them to the RAD as soon as reasonably practicable.”
[9]
On August 20, 2015, the applicant filed a second
Application for an Extension of Time to File or Perfect an Appeal, along with
the complete RAD record. Because of the aforementioned problems with
commissioning the exhibits, and because the RAD record was already considerably
late, the exhibits were filed as part of the record, without being
commissioned. The applicant requested 25 days from the previous deadline of
July 27, 2015, to perfect his appeal.
[10]
On September 29, 2015, the RAD denied the
applicant’s application.
[11]
Subsection 159.91(2) of the Immigration and
Refugee Protection Regulations, SOR/2002-227, provides that if an appeal
cannot be filed or perfected within the time limit set by the Regulations, the
RAD “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.”
[12]
In considering whether to grant the applicant’s
request for an extension, the RAD considered the four-part test set out by this
Court in Canada (Attorney General) v Pentney, 2008 FC 96, [2008] 4 FCR
265 [Pentney] at para 38, of “(1) a continuing
intention to bring the … proceeding; (2) any prejudice to the parties opposite;
(3) a reasonable explanation for the delay; and, (4) whether the application
has merit.”
[13]
The RAD went on to state:
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 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.
[14]
Upon applying these factors to the applicant’s
case, the RAD concluded that he had met factors (1), (2), and (4) as he had a
continuing intention to appeal, an arguable case, and there would be no
prejudice to the respondent, if an extension was granted.
[15]
However, the RAD found that the applicant had
not met factor (3) as he did not have a reasonable explanation for his delay.
In particular, the applicant did not have a reasonable explanation for the delay
arising from his decision to file his appeal in Toronto, as he had his refugee
claim, despite residing in Edmonton. The RAD held that:
The Immigration and Refugee Board (IRB)
regularly holds hearings in Edmonton. There are Turkish interpreters working
in Edmonton who support the Turkish claimants as well as experienced counsel.
The RAD finds that the Appellant needlessly travelled and delayed his appeal
resulting in a failure to comply with the timeframes provided for in the
Regulations. His RAD appeal should have normally been decided by the Western
region where the resources are available to meet the needs of Appellants in
Alberta. The RAD finds that the Appellant has not provided a reasonable
justification for the 25-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
Appellant. If he had relied upon the resources available to him in Alberta, no
extension of time would be necessary.
The Appellant has not satisfied the
requirements for an extension of time. The application for extension of time
is therefore dismissed.
Issue
[16]
There is one issue in this application: Is the
RAD’s decision to refuse the applicant’s request for an extension of time to
perfect his appeal unreasonable?
[17]
The applicant submits that the RAD’s
consideration of factor (3), whether he had a reasonable explanation for the
delay, was “unreasonable, is not grounded on the
evidence and does not appropriately consider the ‘interests of justice’ as
required by the jurisprudence.”
[18]
In analyzing the submissions of the parties, I
agree with the respondent that deference is owed to the RAD in making a
decision involving its own process. I also agree with the submission of the
applicant that because the refusal of the extension may put him at risk, a full
and considered analysis of the request by the RAD is required.
A.
Decision not Based on the Evidence
[19]
The applicant submits that the RAD ignored evidence
that the applicant’s delay was caused by several factors, including, but not
limited to, his decision to file his appeal in Toronto. He submits that it was
therefore unreasonable for the RAD to find that “if
[the applicant] had relied upon the resources available to him in Alberta, no
extension of time would be necessary.”
[20]
It is clear from the RAD’s summary of the facts
that it was alive to the applicant’s various explanations for his delay,
including that he needed to retain a new lawyer, the delay in the transmission
of his file to that lawyer, the delay in transcribing the recording of the RPD
hearing, and the delay in swearing the supporting affidavit. It was open to
the RAD to conclude that the applicant’s decision to file in Toronto was a
primary source of delay such that, but for this decision, he would not have
needed an extension.
[21]
On my reading of the RAD’s decision, its focus
was not that the applicant would not have needed an extension had he filed in
Edmonton. Rather, its focus was that the applicant had caused delay by filing
in Toronto, and that this delay was not justified. In other words, the
question is not ‘Would there have been delay even if
the applicant had filed in Edmonton?’. The proper question to ask is ‘Were the delays caused by his filing in Toronto justified?’.
It is the answer to the latter question that matters in this case.
[22]
The RAD found that the delays resulting from
filing in Toronto were not justified because the resources he required (a
lawyer and a Turkish translator) were available in Edmonton, and he had no need
to retain them in Toronto:
The Immigration and Refugee Board (IRB)
regularly holds hearings in Edmonton. There are Turkish interpreters working
in Edmonton who support the Turkish claimants as well as experienced counsel.
[23]
There is no question that there are counsel in
Edmonton who could have been retained by the applicant. The relevant
consideration is the availability of an access to interpreters. The RAD’s
statement that there are Turkish interpreters in Edmonton is presumably based
on the Member’s personal knowledge (although she does not say so) because there
is nothing in the record to support that finding. Importantly, there is
evidence in the record that there are no such interpreters in Edmonton. The
Interpreter in her affidavit attests that “there were
no Turkish interpreters available there.” It is unclear on what basis
the Interpreter makes this statement and accordingly, one could assess this
evidence as having little weight. Nonetheless, it has some weight and cannot
be rejected out of hand. The RAD’s contrary finding that there are Turkish
interpreters in Edmonton is reasonable only if it explains the evidence
supporting its finding and the weight given it. This was not done.
[24]
In the absence of any evidence that a Turkish
interpreter was available in Edmonton, and in the presence of evidence to the
contrary, the RAD’s decision is unreasonable.
[25]
Moreover, in assessing the applicant’s decision
to file his appeal in Toronto, the RAD ought to have considered his unique circumstances.
He is unable to communicate in either English or French. The Interpreter had
done more than assist the applicant in filling out the refugee claim forms and
interpreting for him. She attests that: “I helped him
to find a place to stay [in Toronto], and I assisted the Appellant to prepare
all his BOC forms, to file his claim at CIC Etobicoke, and to find a lawyer for
him.” This past relationship with this Interpreter, most particularly
her assistance in retaining his initial lawyer, should have been considered by
the RAD when examining whether it was reasonable for the applicant to again
approach the Interpreter to retain a new lawyer and file his appeal in Toronto
rather than in Edmonton.
B.
Right to Choose Counsel and Location of Hearing
[26]
The applicant submits that he had a right to
choose his counsel and that the RAD unreasonably interfered with that right
when it held that he should have selected from among the “experienced counsel” in Edmonton. The applicant also
submits that there are no residence-based restrictions on where a refugee claim
may be filed or heard, and that the RAD unreasonably interfered with his
decision to file his claim in Toronto when it held that he should have filed it
in Edmonton.
[27]
Subject to the comments above as to factors
which ought to have weighed in the RAD’s consideration of the applicant’s
decisions, I agree with the respondent that “[w]hile
the Applicant is entitled to an interpreter, counsel of his choice, and is free
to pursue a refugee claim anywhere in Canada, this does not permit him to
ignore the prescribed timelines set out in the Regulations, with the hope that
another extension would be allowed.”
C.
Application of the Pentney Factors
[28]
In assessing the applicant’s request for an extension,
the RAD relied on the test set out in Pentney. This test was recently
affirmed in the context of an application to the RAD in Ekuoke v Canada
(Minister of Citizenship and Immigration), 2014 FC 1083, [2014] FCJ No 1190.
The applicant does not take issue with the RAD’s statement of the test, but
with its application. He submits that, despite acknowledging that the Pentney
factors are not conjunctive, the RAD failed to balance these factors against
one another but, instead, regarded his failure to meet one of the factors as
fatal. I agree.
[29]
Although the RAD stated the correct test, it did
not apply it correctly, or reasonably. In particular, the RAD appears to have
regarded the applicant’s failure to adequately explain his delay as fatal, because
it provided no analysis or discussion of whether or how it was that this factor
outweighed the other three factors, which favoured granting an extension. Absent
such analysis and discussion, it is impossible to ascertain how the RPD arrived
at its conclusion, and the decision thus fails to meet the test of
justification, transparency and intelligibility set out in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47. For this reason
alone, the RAD’s decision must be set aside.
Conclusion
[30]
The applicant’s request for an extension of time
to perfect his appeal must be reconsidered by the RAD in keeping with these
reasons.
[31]
No question was proposed for certification.
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