Date: 19990813
Docket: IMM-4907-98
Ottawa, Ontario, the 13th day of August 1999
Present: The Honourable Mr. Justice Pinard
Between:
LEKRIM BENSALAH, domiciled and residing at
5457 Resther, Apartment 5,
Montréal, Quebec, H2J 2W5
Applicant
- and -
THE MINISTER, c/o Justice Department, Guy Favreau Complex,
200 West René-Lévesque, East Tower, 5th Floor,
Montreal, Quebec, H2Z 1X4
Respondent
ORDER
The application for judicial review of the decision by Citizenship and Immigration Canada immigration officer Maria Bilucaglia dated September 2, 1998, determining that the applicant could not be admitted as a member of the post-determination refugee claimants in Canada class, is dismissed subject to certification of the following two questions:
| 1. Does an immigration officer have the power to extend the time prescribed by paragraph 11.4(2)(b) of the Immigration Regulations for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class? |
| 2. Is paragraph 11.4(2)(b) of the Immigration Regulations beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Immigration Act confers on the Governor in Council, in that it prescribes the time for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class for the purposes of subsection 6(5) of the Act? |
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19990813
Docket: IMM-4907-98
Between:
LEKRIM BENSALAH, domiciled and residing at
5457 Resther, Apartment 5,
Montréal, Quebec, H2J 2W5
Applicant
- and -
THE MINISTER, c/o Justice Department, Guy Favreau Complex,
200 West René-Lévesque, East Tower, 5th Floor,
Montreal, Quebec, H2Z 1X4
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by Citizenship and Immigration Canada immigration officer Maria Bilucaglia dated September 2, 1998, determining that the applicant could not be admitted as a member of the post-determination refugee claimants in Canada (PDRCC) class because he had not submitted his application for admission to this class within the prescribed 15-day period.
[2] The applicant came to Canada on October 23, 1996, and immediately claimed refugee status. The hearing of his claim before the Refugee Division took place on May 28, 1998. On July 7, 1998, the panel dismissed the claim owing to the applicant"s lack of credibility. When counsel for the applicant learned of the decision, he went to the Registry of the Refugee Division on July 15, 1998, to obtain two copies of the notice of and reasons for the negative decision, and two copies of form IMM5408 with the application for admission to the PDRCC class. In his application of August 4, 1998, for leave to commence an application for judicial review of the Refugee Division"s decision, the applicant stated that he had been informed of that decision on July 22, 1998. Therefore, the applicant had until August 6, 1998, to submit his PDRCC application but waited until August 26, 1998 to do so, acting beyond the 15-day period prescribed by the Immigration Regulations, 1978 , SOR/78-72 (the Regulations).
[3] At the hearing before me, counsel for the applicant conceded that he had not given the notice required by section 57 of the Federal Court Act regarding the constitutional questions raised in his factum, expressly abandoning their pursuit and argument on the merits. Therefore, this matter now raises only two other questions: the question regarding the power to extend the time prescribed by paragraph 11.4(2)(b) of the Regulations for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class, and whether that provision of the Regulations is beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Immigration Act (the Act) confers on the Governor in Council.
[4] The relevant provisions of the Act and Regulations are the following:
Immigration Act
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
6. (5) Subject to subsection (8) but notwithstanding any other provision of this Act or any regulation made under paragraph 114(1)(a), an immigrant and all dependants, if any, may be granted landing for reasons of public policy or compassionate or humanitarian considerations if the immigrant is a member of a class of immigrants prescribed by regulations made under paragraph 114(1)(e) and the immigrant meets the landing requirements prescribed under that paragraph. 6. (8) Where an immigrant is of a prescribed class of immigrants for which the regulations specify that the immigrant and any or all dependants are to be assessed, the immigrant and all dependants may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant and the dependants who are to be assessed meet, collectively,
114. (1) The Governor in Council may make regulations
|
3. La politique canadienne d"immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité :
6. (5) Sous réserve du paragraphe (8) mais par dérogation aux autres dispositions de la présente loi et aux règlements d"application de l"alinéa 114(1)a ), peuvent également obtenir le droit d"établissement pour des motifs d"ordre humanitaire ou d"intérêt public l"immigrant et, le cas échéant, toutes les personnes à sa charge, s"il appartient à l"une des catégories prévues aux règlements d"application de l"alinéa 114(1)e ) et satisfait aux exigences relatives à l"établissement visées à cet alinéa. 6. (8) Si l"immigrant appartient à une catégorie pour laquelle les règlements prévoient que le cas de l"immigrant et de certaines ou toutes les personnes à la charge de celui-ci doit être examiné, l"immigrant et les personnes à sa charge ne peuvent se voir octroyer le droit d"établissement que si l"agent d"immigration est convaincu que l"immigrant et les personnes à sa charge dont le cas doit être examiné satisfont collectivement :
114. (1) Le gouverneur en conseil peut, par règlement :
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| Immigration Regulations, 1978 |
| 11.2 The following classes are prescribed as classes of immigrants for the purposes of subsections 6(5) and (8) of the Act:
11.4 (2) For the purposes of subsection 6(5) of the Act, a person whom the Refugee Division
|
11.2 Sont des catégories réglementaires d"immigrants pour l"application des paragraphes 6(5) et (8) de la Loi :
11.4 (2) Pour l"application du paragraphe 6(5) de la Loi, la personne à laquelle la section du statut a décidé de ne pas reconnaître le statut de réfugié au sens de la Convention :
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[5] In Adam v. M.C.I. (December 23, 1998), IMM-5090-97, my colleague Mr. Justice Nadon held that an immigration officer does not have the power to extend the prescribed time. Like him, based on Ponnampalam v. Canada (M.C.I.) (1996), 117 F.T.R. 294, Melinte v. Canada (M.C.I.) (1997), 134 F.T.R. 292 and Razavi v. Canada (M.C.I.) (1998), 144 F.T.R. 36, I also find that there is no discretion to extend the 15-day period prescribed by paragraph 11.4(2)(b) of the Regulations (see also Caron v. M.N.R. et al. (1996), 108 F.T.R. 137 and Miucci c. M.R.N. (1991), 52 F.T.R. 216).
[6] Like Mr. Justice Nadon in Adam, supra, I certify the following question:
| Does an immigration officer have the power to extend the time prescribed by paragraph 11.4(2)(b) of the Immigration Regulations for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class? |
[7] In the case at bar, given that the applicant has abandoned the constitutional questions, there is no need to certify additional questions regarding the application of the Canadian Charter of Rights and Freedoms as Nadon J. did in Adam, supra.
[8] As to whether paragraph 11.4(2)(b) of the Regulations is beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Act confers on the Governor in Council, counsel for the applicant"unable to refer to any authorities or decisions confirming that the provision at issue is ultra vires"simply argued that there is no specific period under paragraph 114(1)(e ) of the Act in which an application may be submitted and that paragraph 11.4(2)(b) of the Regulations is inconsistent with the humanitarian objectives of the Act.
[9] First, it is important to recall that there is a presumption that regulations are consistent with the limits set by the enabling legislation (see P.-A. Côté, The Interpretation of Legislation in Canada, 2d ed., Cowansville, Les Éditions Yvon Blais Inc., 1990, at pages 309-310). Second, as the Supreme Court of Canada noted in Chiarelli v. Canada, [1992] 1 S.C.R. 711, at pages 733 and 734:
| . . . The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. . . . |
| Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. . . . |
[10] Last, in Jafari v. Canada (M.E.I.), [1995] 2 F.C. 595, the Federal Court of Appeal set out the general principles governing a determination as to whether delegated legislation such as a regulation is within the authority granted by the enabling legislation. Those principles can be summed up as follows:
| - It is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court"s policy preferences; |
| - The essential question is: does the statutory grant of authority permit this particular delegated legislation? |
| - In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation; |
| - Any limitations, express or implied, on the exercise of that power must be taken into account; |
| - One must look to the regulation itself to see whether it conforms; |
| - Where it is argued that the regulation was not made for the purposes authorized by the statute, one must try to identify one or more of those purposes for which the regulation was adopted; |
| - A broad discretionary power, including a regulation-making power, may not be used for a completely irrelevant purpose; |
| - It is up to the party attacking the regulation to demonstrate what that illicit purpose might be; |
| - One must look to the statutory basis for the regulation in question; |
| - The regulations must be seen as in some way related to the purpose of the Act; |
| - One must verify whether the paragraph was made for purposes of the administration of the Immigration Act; |
| - The main purpose of the regulations cannot be to achieve some improper and unauthorized purpose; |
| - Assuming that the regulations are prima facie authorized by the statute, one must consider whether they are contrary to some condition imposed on the exercise of the regulation-making power. |
[11] Taking into account all of the above principles, and considering that Parliament"s objectives are to be assessed based on the Act and Regulations as a whole, and that the Regulations in question are a departure from the norm by operation of subsection 6(5) of the Act, I am of the view that the power to establish the procedure for considering applications for a determination of whether the applicant is a member of a class includes the power to prescribe the time within which to submit an application, and that in the case at bar, it is a procedural matter. The Regulations are within the scope of the enabling provisions, i.e., subsection 6(5) and paragraph 114(1)(e ) of the Act. In addition, the prescribing of time has proved essential to the proper administration of the Immigration Act, particularly with respect to the Minister"s duty to enforce removal orders as soon as circumstances allow. Given the nature of these applications and the fact that applicants are under an effective removal order and wish to be recognized as members of the PDRCC class, in the context of this departure from the norm where applicants are requesting an exceptional privilege, not a right, in my opinion it is entirely acceptable and reasonable for the Governor in Council, there being nothing forbidding it, to have prescribed the time under paragraph 11.4(2)(b ) of the Regulations.
[12] With respect to this question regarding the ultra vires character of paragraph 11.4(2)(b) of the Regulations, I agree to certify the following question, the text of which counsel for both parties accept:
| Is paragraph 11.4(2)(b) of the Immigration Regulations beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Immigration Act confers on the Governor in Council, in that it prescribes the time for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class for the purposes of subsection 6(5) of the Act? |
[13] Therefore, subject to the above certification of two questions, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 13, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT NO.: IMM-4907-98 |
| STYLE OF CAUSE: LEKRIM BENSALAH v. M |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: JULY 12, 1999 |
REASONS FOR ORDER OF PINARD J.
| DATED AUGUST 13, 1999 |
APPEARANCES:
JEAN-FRANÇOIS BERTRAND
FOR THE APPLICANT
LISA MAZIADE
FOR THE RESPONDENT
SOLICITORS OF RECORD:
JEAN-FRANÇOIS BERTRAND
FOR THE APPLICANT
LISA MAZIADE
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada