Reasons and decision
[1] Previously, a member of the General Division dismissed the Applicant’s appeal. In due course, the Applicant filed an application requesting leave to appeal this decision to the Appeal Division.
[2] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) states that the only grounds of appeal are that:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[3] The DESDA also states that leave to appeal is to be refused if the appeal has “no reasonable chance of success.”
[4] In his submissions, the Applicant alleges that the General Division member made an erroneous finding of fact in determining when he had left Canada because the member failed to take into account the time difference between Canada and China.
[5] Although I make no finding on the matter, I note that on the face of the record (in paragraph 38 of her decision) the General Division member may have erred as alleged.
[6] Because of this, I find that this application has a reasonable chance of success and leave to appeal must be granted.