Toronto, Ontario, June 11, 2007
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
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.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1176-07
STYLE OF CAUSE: YI CHEN v. MCI
SOLICITORS OF RECORD:
Hart A. Kaminker
Barrister and Solicitor FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario