Date: 20011011
Docket: IMM-5244-00
Ottawa, Ontario, the 11th day of October, 2001
Present: The Honourable Mr Justice Pinard
Between:
NTEMO BIENVENU DIMENENE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision rendered September 26, 2000 by J.-M. Sirois, an immigration officer with Citizenship and Immigration Canada, is dismissed. The application for leave, as it pertains to the previous related decisions of September 5 and September 26, 2000, is dismissed, any extension of time required in their regard being refused.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20011011
Docket: IMM-5244-00
Neutral Citation: 2001 FCT 1101
Between:
NTEMO BIENVENU DIMENENE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered September 26, 2000 by J.-M. Sirois, an immigration officer with Citizenship and Immigration Canada, ruling that the applicant could not be admitted under the post-determination refugee claimants in Canada class ("PDRCC") because of a breach of the fifteen-day limit for the submission of his claim under the Immigration Regulations, 1978, SOR/78-72. If necessary, the applicant is seeking an extension of time under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") in regard to previous decisions rendered on August 29, 2000 and September 5, 2000.
[2] The decisions in question are contained in three letters dated August 29, 2000, September 5, 2000 and September 26, 2000, respectively.
[3] The letter of August 29, 2000 is the original decision:
[Translation]
An examination of your file discloses that you cannot be admitted as a member of the PDRCC class owing to the fact that you must be excluded for the following reason(s):
[x] you did not submit your claim for admission to the PDRCC class within the prescribed deadlines, twenty-two (22) days in total; your deadline expired on June 23, 2000 and your claim was not served on us until the following July 10, seventeen (17) days after the prescribed deadline;
[4] The letter of September 5, 2000 was in response to a request for review made by the applicant, and it maintained the original decision of August 29, 2000:
[Translation]
... We have re-examined your file and have reached the same conclusion. Your failure to present a claim for admission within the twenty-two (22) days following the decision of the Refugee Division (RD) excludes you from the PDRCC class, since there was no claim within the meaning of that particular class.
On June 1, 2000, the RD sent you its decision at your address most recently known to their department, that is, 550 Ash #1, in Montréal. But you had not informed them of your most recent address, the one that appears at the top of this letter. That is apparently why, after some searches by the RD Registry, this decision was ultimately conveyed to you on June 28, 2000. Since the RD did not commit any mistake as to the address, last June 1, it did not need to amend the date of its notice of decision.
And the period for registering in the PDRCC class is always calculated from the RD's notice of decision. That is why we are unable to allow your request to reconsider our decision of last August 29, which remains valid and justified.
[5] The letter of September 26, 2000 replies to a request for further review by the applicant and again maintains the original decision of August 29, 2000:
[Translation]
... your most recent intervention speaks of contrary evidence, in asking that your client be considered in the PDRCC class.
In our opinion, no such contrary evidence has been presented in this case. According to the interpretations previously provided by our representatives with Justice Canada, it has not been determined that your client could have been prevented from taking action, as for example in the case of imprisonment, a serious disabling illness or absence from the country, to cite only a few examples.
. . .
In these circumstances, we are unable to consider that your client has discharged the onus of promptly providing his changes of address and serving on us by the prescribed deadline a claim for admission to the PDRCC class.
You may dispute this decision by applying to the Federal Court of Canada for an application for leave and judicial review, in accordance with the rules established by that Court.
[6] Because the application for leave in this case was not filed until October 5, 2000, it could cover only the decision of September 26, 2000 without the need to apply for an extension of time. In fact, the leave order of May 24, 2001 applies explicitly and solely to the decision "[Translation] dated September 26, 2000".
[7] Like my colleague, Mr. Justice Noël in Dumbrava v. Minister of Citizenship and Immigration (September 25, 1995), IMM-3068-94, [1995] F.C.J. no. 1238 (QL), I am of the opinion that the immigration officer, deriving his decision-making power from the statute, can exercise only those powers that are expressly provided therein. The immigration officer cannot, therefore, review a decision rendered under the same Act without being directly authorized to do so within that Act. In Dumbrava, supra, Noël J. wrote:
I would have thought that the matter would best be approached the other way in that, absent an express grant of jurisdiction, it is doubtful that a decision-maker has the power to reconsider a prior decision on new grounds and exercise his or her discretion anew. [See Note 5 below] The decision-making powers of a visa officer are statutory and, as such, they must be found in the statute. While I have no doubt that slips, typos and obvious errors can be corrected after a decision has been rendered, the discretion of a decision-maker is, in my view, fully exhausted once the discretionary authority to decide has been exercised in the manner contemplated by statute. As such, a decision-maker cannot pronounce more than once on the same matter.
In the case at hand, the visa officer rejected the application on January 10, 1994, and communicated to the applicant her reasons for so doing by letter bearing that date. Having done so, the visa officer did not have the jurisdiction to again decide the matter in the manner that she did, and hence this application is without object.
Note 5: See, for instance, Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 77, per Pigeon J., at p. 592: . . .
[8] Based on this reasoning, then, the present proceeding, to the degree that it is addressed to the decision of September 26, 2000, which the immigration officer was not expressly authorized to render, is moot. The application for judicial review of this latter decision must therefore be dismissed. In this regard, it is appropriate to certify the following question:
Does an immigration officer, at the request of a party who is directly interested, have the power to review the merits of a decision he has rendered?
[9] In the circumstances, the leave granted on May 24, 2001 affected only the decision of September 26, 2000 and it is now necessary, in light of Rule 6 of the Federal Court Immigration Rules, 1993, SOR/93-22, to consider the application for leave only in so far as it affects the original decision of August 29, 2000 and the decision of September 5, 2000, and the applications for extension of time pertaining thereto.
[10] In this regard, the applicant thought it was more appropriate to have those two decisions amended by trying to obtain review of them by the immigration officer rather than judicial review by this Court. In my opinion, that does not justify the delay. Prudence required of the applicant that he file an application for judicial review within the requisite time, even if it meant dropping this proceeding if his attempts to get those decisions otherwise altered were to prove successful.
[11] The applicant also raises as an excuse for the delay the fact that he moved on the same day the notice of decision was mailed. I do not regard that as a reasonable excuse, for the following reasons:
- The applicant did not demonstrate due diligence, since he did not apply to Canada Post until the very day of his move when he knew or ought to have known that the service would take effect only 5 to 10 days later. Furthermore, on his application the applicant stated the date of departure as June 2 and not the 1st, which added to the delay.
- Contrary to the duties that were his responsibility, the applicant did not notify the Refugee Division of his change of address until June 6, 2000. Yet on the day he arrived in Canada, the applicant had undertaken in writing to notify Citizenship and Immigration Canada of any change of address within forty-eight hours. The applicant also received, on that date, in his notice to appear before the Refugee Division, a written instruction to inform it immediately of any change of address, which he did not do.
[12] The extensions of time requested are therefore refused and the application for leave pertaining thereto is dismissed. An additional reason for dismissing the application for leave in relation to the decision of September 5, 2000 lies in the reasoning that was followed in dismissing the application for judicial review of the decision of September 26, 2000.
J.
OTTAWA, ONTARIO
October 11, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-5244-00
STYLE: NTEMO BIENVENU DIMENENE v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 21, 2001
REASONS FOR ORDER OF PINARD J.
DATED: OCTOBER 11, 2001
APPEARANCES:
Jean-Michel Montbriand FOR THE APPLICANT
Guy Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-Michel Montbriand FOR THE APPLICANT
Doyon, Guertin, Plamondon & Montbriand
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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