Case Study "Nyugen" (Self-Check Exercise)
Updated Answer:
Step 1: Can you file a Notice of Appeal for Mr. Nguyen?
IAD Rule 5(3) If an appellant provides notice of appeal to the Immigration Appeal Division, the notice of
appeal and the removal order must be received by the Division no later than 30 days after the appellant
received the removal order. The Immigration Appeal Division must provide the notice to the
Immigration Division without delay. The timelines prescribed by the IAD Rules for filing a Notice of
Appeal have expired. Therefore, Mr. Nguyen cannot file a Notice of Appeal.
Step 2: Can you file an application for an Extension of Time to File the Notice of Appeal?
That's not immediately clear. Follow Steps 3 to 7 to see if an application for Extension of Time to File the
Notice of Appeal is possible.
Step 3: Where would you find the relevant jurisprudence and what's the relevant IAD Rule?
The authority of the IAD to consider an application to extend time derives from the jurisprudence of the
Federal Court of Appeal and from IAD Rule 58(d):
Rule 58. Powers of the Division — The Division may ... (d) extend or shorten a time limit, before or after
the time limit has passed.
Step 4: What are the relevant factors to review when considering an application for an extension of
time? Where in case law are those relevant factors set out?
The decision to extend the time for filing an appeal is discretionary. The case of Hennelly set out the
factors to review when considering an application for an extension of time:
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A continuing intention to pursue his or her application;
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That the application has some merit
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That no prejudice against the respondent arises from the delay and
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That a reasonable explanation for the delay exists.
Canada (Attorney General) v. Hennelly, 1999 CanLII 8190 (FCA), [1999] F.C.J. No. 846.
Step 5: Is there any other relevant case law?
The IAD has a broad discretion to grant an extension of time according to the case of Grewal.
Grewal, Tarsem Singh v. Canada (Minister of Employment and Immigration) [1985] 2 F.C. 263.
Step 6: What is the underlying consideration of the relevant case law?
The underlying consideration is that justice be done between the parties. Furthermore, an extension of
time may still be granted if one of the criteria is not satisfied.
Step 7: What's your final advice to Mr. Nyugen?
An application for an extension of time to file the Notice of Appeal will likely be denied by the IAD as it
would not meet the test set out in Grewal.
Reflection:
I got this exercise completely wrong. I was focused on what advice I would give the client if the
extension was approved and goes to the IAD. I failed to consider that the extension will not be granted
and to look at relevant case laws. The exercise is a good reminder of the fundamental steps prior to
advising a client. The key steps are:
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Review relevant information such as dates and facts.
Review the Act, Regulations, Rules, etc.
Find relevant case laws.
Below are my original answers:
What advice would you give him and why?
I would advise Mr. Nguyen to concede to the inadmissibility as he was convicted of a crime that falls
under serious criminality. The minister’s counsel will likely emphasize that the removal orders are
valid in law. I would, therefore, recommend focusing on the evidence to warrant special relief and
H&C consideration.
Assuming that he instructs to you file a Notice of Appeal with the IAD as well as an application for
an extension of time to file the Notice of Appeal, describe your process and the contents of the
application.
Follow IAD Rules:
42 Unless these Rules provide otherwise
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(a) a party who wants the Division to make a decision on any matter in an appeal, including
the procedure to be followed, must make an application to the Division under rule 43;
(b) a party who wants to respond to the application must respond under rule 44; and
(c) a party who wants to reply to a response must reply under rule 45.
Form of application and time limit
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43 (1) An application must be made in writing and without delay unless
o (a) these Rules provide otherwise; or
o (b) the Division allows it to be made orally at a proceeding after considering any
relevant factors, including whether the party with reasonable effort could have made
the application in writing before the proceeding.
Application to change the date or time of a proceeding

48 (1) A party may make an application to the Division to change the date or time of a
proceeding.
Form and content of the application
(2) The party must
o
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(a) follow rule 43, but is not required to give evidence in an affidavit or statutory
declaration; and
o (b) give at least six dates, within the period specified by the Division, on which the
party is available to start or continue the proceeding.
Application received two days or less before proceeding
(3) If the party’s application is received by the recipients two working days or less before the date of
a proceeding, the party must appear at the proceeding and make the request orally.
The content of the application will include the following:
The burden of proof on the appellant
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Provide the relevant information to the Member
You must prove your client’s case on the required standard of proof: a balance of
probabilities
Documentary evidence
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The disclosure deadline is 20 days in advance of the hearing
If your documents are late, explain why they are late and how they are relevant
If the Minister’s counsel objects to late documents, suggest a recess and/or adjournment
Format of documents: 8.5/11 paper, pagination, indices, translations and translator’s
declaration
Include a list of proposed witnesses in your cover letter: name, address, and telephone
number
Disclosure documents in H and C
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Tailor your evidence to the factors for consideration for your specific type of removal order
appeal (e.g., H&C)
Address establishment (e.g., economic-, familial-, and community involvement)
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Example documents for establishment: job letters, Notice of Assessment as proof of tax
payments, letters of support from friends and family
Address hardship (for your client and their family)
Example documents for hardship:
o Letters of support from family in Canada
o Evidence of adverse conditions in the country of origin (e.g., economic conditions,
gender issues, availability of mental health care, etc.)
o Best interests of a child (e.g., birth certificates, photos, school documents)
Don’t take anything for granted. Provide proof for all statements.
Address personal circumstances (e.g., mental health issues, addictions, history of abuse)
Disclosure documents in H and C







Tailor your evidence to the factors for consideration for your specific type of removal order
appeal (e.g., H&C)
Address establishment (e.g., economic-, familial-, and community involvement)
Example documents for establishment: job letters, Notice of Assessment as proof of tax
payments, letters of support from friends and family
Address hardship (for your client and their family)
Example documents for hardship:
o Letters of support from family in Canada
o Evidence of adverse conditions in the country of origin (e.g., economic conditions,
gender issues, availability of mental health care, etc.)
o Best interests of a child (e.g., birth certificates, photos, school documents)
Don’t take anything for granted. Provide proof for all statements.
Address personal circumstances (e.g., mental health issues, addictions, history of abuse)