Date: 20000829
Docket: IMM-3437-99
BETWEEN:
GLORIA SELENE SOLIS BAUTISTA
GLORIA BAUTISTA TREJO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW, J.A.
[1] Gloria Selene Solis Bautista and her mother Gloria Bautista Trejo are failed refugee claimants. The negative refugee decision was rendered on March 25, 1999. The applicants were notified of the decision in early April of 1999. According to the affidavit of Ms. Bautista, they went to the office of their former counsel on April 16, 1999, where they each signed an application for membership in the post determination refugee claimants in Canada (PDRCC) class.
[2] It is common ground that if their former counsel had submitted the PDRCC applications on April 16, 1999 by fax, as Ms. Bautista deposes he promised to do, the applications would have been accepted as having been made within the 15 day time limitation prescribed by Immigration Regulation 11.4(2)(b). However, they were not submitted on April 16, 1999. In a letter to the applicants dated June 11, 1999, their former counsel says this:
| Please find enclosed a copy of the facsimile transmission to Canada Immigration (and the facsimile transmission report) of your submission of Post-Determination Refugee Claimant in Canada (PDRCC) what [sic] appear that the fax was sent 21 April 1999. |
| Please be advised that I have checked my courier records and I understand they indicate the courier version was sent on 22 April 1999. |
| From my inspection of these records, these documents were not sent on 16 April 1999 as you may have previously understood. |
[3] By letter dated April 30, 1999, a post claim determination officer notified the applicants that their PDRCC applications would not be considered because they were received outside the deadline in Immigration Regulation 11.4(2)(b), which requires PDRCC applications to be submitted "not later than 15 days after the day the person is notified" of the negative refugee determination.
[4] The letter from the PDRCC officer indicates that the PDRCC applications would have been accepted as being on time if they had been received on or before April 16, 1999. The decision of the PDRCC officer to reject the PDRCC applications without considering its merits is the subject of this application for judicial review.
[5] The first argument submitted for the applicants is that the PDRCC deadline was missed because of the incompetence of their former counsel, with no fault on the part of the applicants, and that to reject the PDRCC application summarily in these circumstances is a breach of natural justice which entitles this Court to provide the applicants with an equitable remedy.
[6] On August 25, 2000, the Federal Court of Appeal determined, in Adam v. Minister of Citizenship and Immigration (A-21-99), that the time limitation for PDRCC applications is a statutory limitation on the authority of immigration officers to deal with applications under the PDRCC regulations. In my view, the same reasoning prevents this Court from extending the deadline on equitable grounds.
[7] Apart from that, the record indicates that the applicants have made an application under subsection 114(2) to seek the right to apply for landing from within Canada on humanitarian and compassionate grounds, and have obtained a stay of removal pending that decision. It is common ground that a risk assessment may be undertaken in the course of reaching a determination on that application. In these circumstances, even if I were inclined to grant an equitable remedy or thought I had the jurisdiction to do so, I would not do so because the applicants have already invoked the broadest equitable relief obtainable under the Immigration Act.
[8] It is also argued for the applicants that the deadline for PDRCC applications is invalid because it is beyond the scope of the power conferred on the Governor in Council to make regulations to facilitate the admission of any person to Canada on the basis of compassionate or humanitarian considerations (section 114(2) of the Immigration Act). In three previous cases, Mr. Justice Pinard of this Court rejected that argument: Bensalah v. Minister of Citizenship and Immigration (IMM-4907-98, August 13, 1999), Gill v. Minister of Citizenship and Immigration (IMM-5202-98, August 13, 1999) and Lealh v. Minister of Citizenship and Immigration (IMM-2023-99, April 20, 2000). I agree with Mr. Justice Pinard that the time limitation in Immigration Regulation 11.4(2)(b) is not beyond the scope of the authority of the Governor in Council.
[9] Accordingly, this application for judicial review will be dismissed. No certified question was suggested.
(Sgd.) "K. Sharlow"
J.A.
August 29, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-3437-99 |
| STYLE OF CAUSE: Gloria Selene Solis Bautista et al |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: August 29, 2000 |
| REASONS FOR ORDER OF Sharlow, J.A. |
| DATED: August 29, 2000 |
APPEARANCES:
| Mr. Peter Dimitrov For the Applicant |
| Ms. Emilia Pech For the Respondent |
SOLICITORS OF RECORD:
Mr. Peter P. Dimitrov
Barrister & Solicitor
| Delta, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |