Date: 20020603
Docket: IMM-2361-02
Neutral citation: 2002 FCT 635
Toronto, Ontario, Monday, the 3rd day of June, 2002
Present: The Honourable Mr. Justice Kelen
BETWEEN:
AHMAD NEMATI and NAHID ANVARI
Applicants
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants, originally from Iran, seek an order staying the execution of a removal order scheduled for execution on June 12, 2002, to last until an Application for Leave and Judicial Review of a decision of Post Claims Determination Officer ("PCDO") David Richardson, dated April 24, 2002 finding that the applicants did not meet the requirements to be found to be Post Determination Refugee Claimant(s) in Canada ("PDRCC").
Facts
[2] On March 8, 2002, the applicants received Notice that they were found not to be Convention refugees. Thereafter they retained the services of an immigration agent to make a PDRCC application. The agent mailed the application to the Immigration Department on March 23, 2002.
[3] On April 25, 2002, the applicants received a letter form PCDO Richardson, dated April 24, 2002, that stated as follows, in part:
Please be advised that your case will not be considered under the Post-Determination Refugee Claimants in Canada Class (PDRCC). In order for your case to have been considered under the PDRCC, an application must have been submitted not later than 15 days (plus 7 days for mailing) after the day you were notified by the Refugee Division that you were not a Convention refugee (Immigration Regulations 11.4(2)(b)).
You were found not to be a Convention Refugee on 28 February 2002. Your application for consideration under the PDRCC class was postmarked 23 March 2002. You did not apply within 22 days of the Refugee Division (CRDD) decision.
[4] The applicants subsequently received a Notice to appear on June 12, 2002 for removal from Canada.
[5] As set out in the case of Toth v. Canada (1988), 6 Imm. L.R. (2nd) 123, the applicants must prove: 1. the existence of a serious issue; 2. the likelihood of irreparable harm, and 3. that the balance of convenience favours them.
Serious Issue
[6] The applicants submit that a serious issue results from the denial of procedural fairness resulting from the officer's error in calculating the time in which they should have filed their PDRCC application. As they received the Notice of the CRDD decision on March 8, 2002, they submit that they had until March 23, 2002 to mail the application for PDRCC status.
[7] The respondent submits that, as the CRDD decision was dated February 28, 2002, and deemed by statute to have been received by seven days later (March 7, 2002), the applicants then had 15 days in which to mail their PDRCC application, ending on March 22, 2002.
[8] Section 2(4)(b) of the Immigration Act reads as follows:
INTERPRETATION
Definitions
2. (1) In this Act, [...]
Deemed notification
(4) For the purposes of this Act, a person, including the Minister, shall, in the absence of proof to the contrary, be deemed to have been notified of a decision under this Act, other than a decision of a visa officer,
(a) where the decision was rendered otherwise than in the presence of the person and the person was not entitled to written reasons, on the day that is seven days after the day on which notice of the decision was sent to the person, and
(b) where the person was entitled to written reasons, or was entitled to request, and requested within the time normally provided therefor, written reasons, on the day that is seven days after the day on which the written reasons were sent to the person,
which notice or written reasons may be sent by mail.
[9] The applicants refer to the case of Varnosfaderani v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 404, 2001 FCT 109 (F.C.T.D.) Lemieux J. stated:
13 In my view, a PDRCC applicant must send the application no later than 15 days of being notified of the negative decision of the Refugee Division which, under subsection 4(2) of the Act, is deemed to have occurred seven (7) days after the date of mailing unless the contrary is shown.
14 In this case, the applicant swore he received the Refugee Division's decision on May 10, 1999. He had to submit his application by May 26, 1999. I have the unchallenged evidence of Marnie Cole, who was not cross-examined, saying she sent the applicant's PDRCC application to CIC on May 24, 1999. On that day the applicant was not out of time.
[10] The relevance to the case at bar seems clear, the dates involved being similar to the ones now before the Court.
[11] While Varnosfaderani is not in itself convincing jurisprudence, the Court may take guidance from the decision of Muldoon J. in Alabi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 294, 2001 FCT 140:
8 The applicant complied with the time period and submitted the application within 15 days from the date on which he received the written decision. It is unjust to hold him responsible for a delay in the mail. Moreover, the PCDO does not have evidence about when the applicant received the decision, and the seven day time period is final only in absence of proof to the contrary.
[12] As well, Campbell J. in Li v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2145 also upheld a 15-day time limit from the date of receipt:
3 In the present case, I find as a fact that the Applicant received his notice on September 23, 1998, and as he filed his application to obtain a review on October 8, 1998, I find he filed within the time limit set out in Regulations 11.4(2)(b) [which contains a 15-day time limit analogous to that of s.2(4)(b)].
[13] The evidence put forward by the applicants, specifically the affidavit of their son, states that the decision was received on March 8, 2002. The respondent has put forward no evidence or jurisprudence to cast that date into doubt. An affidavit of evidence with respect to procedural fairness is allowed.
[14] Accordingly, I find that on this point, a serious issue exists.
[15] The applicants' submissions regarding a serious issue related to an extension of time to file their Application for Leave and Judicial Review of the decision of officer Richardson also raises a serious issue.
Irreparable Harm
[16] In Melo v. Canada (M.C.I.), [2000] F.C.J. No. 403 (F.C.T.D.) Pelletier J. defined "irreparable harm" as:
Some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar places and people. It is accompanied by enforced separation and heartbreak. Similarly, disruption of education does not constitute irreparable harm in itself.
[17] The only aspect of irreparable harm to the applicants which is outside the definition in Melo is the denial of the opportunity to have a potentially successful PDRCC heard. In the present circumstances, where the application was denied due to a breach in procedural fairness, I find that this does meet the definition of irreparable harm. A PDRCC application implicitly allows an applicant to remain in Canada until it is decided.
[18] The other grounds referred to by the applicants were decided upon by the CRDD and need not be reviewed here. As well, the issue of the pending H & C application is not a basis for a stay.
[19] The balance of convenience in this matter favours the applicants.
ORDER
In view of the foregoing, this application for a stay is allowed.
"Michael A. Kelen"
______________________________
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2361-02
STYLE OF CAUSE:AHMAD NEMATI and NAHID ANVARI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JUNE 3, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN J.
APPEARANCES BY: Ms. Wennie Lee
For the Applicants
Ms. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD: Wennie Lee
Barrister and Solicitor
255 Duncan Mill Road
Suite 606
Toronto, Ontario
M3B 3H9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020603
Docket: IMM-2361-02
BETWEEN:
AHMAD NEMATI and NAHID ANVARI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER