IMM-426-96
BETWEEN:
NGALIEMA
ZENA BULA,
Applicant,
AND:
MINISTER OF
CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS
FOR ORDER
JOYAL J.
The applicant arrived in
Canada in 1991. On March 23, 1992, the Refugee Division denied his refugee
claim. On June 16, 1992, his application for leave to pursue the matter in the
Federal Court was allowed. Two years later, on June 16, 1994, his application
for judicial review was dismissed on the merits. On July 4, 1994, the
applicant appealed to the Federal Court of Appeal; that appeal was dismissed on
June 19, 1995.
On July 19, 1995, the
respondent received an application for permanent residence in Canada from the
applicant, which application was based on special regulations defining the
"members of the Deferred Removal Order Class" ("DROC").
Because the fees required by the regulations were not included, the application
was returned to the applicant. On August 23, 1995, the respondent informed the
applicant that his request for a loan to pay his fees had been refused.
The applicant submitted an
entirely new application, but not until November 17, 1995. That application
was complete and was accompanied by the necessary fees. On January 19, 1996,
the applicant was informed that he could not be considered as a member of the
DROC because his application had been submitted after the deadline set by the
Act.
Naturally, the applicant is
challenging that interpretation, citing the following facts:
1.it was never pointed
out to him that in order to ensure that his application would be eligible the
fees had to be included;
2.no mention was made
of this during the period from July 10, 1995, to November 17, 1995;
3.the information that
the respondent provided to him created a reasonable expectation, particularly
when he was told, on July 19 and August 23, 1995, that his application would be
considered as soon as the fees were paid; and
4.the respondent's
interpretation is wrong in fact and in law.
The respondent contends that
an application cannot be considered unless it is accompanied by the required
fees. This interpretation is based on the decision in Maharas v. M.C.I.,
Court file no. IMM-4768-94 (unreported), in which Mr. Justice Teitelbaum dealt
with section 3 of the Immigration Act, 1976 Fees Regulations, SOR/86-64,
which clearly states that the fees are payable at the time the application is
made. That principle is also supported by subsections 3.1(1), 4(1), 5(1),
6(1), 8(1) and 9(1) of those Regulations.
The rule is also repeated in
a pamphlet published by the respondent which clearly states: "the
processing fee must be submitted with your application".
It may therefore be
concluded that payment of the application fee is a condition sine qua non
that admits of no exception. This condition is one that some people might find
harsh, not to say punitive. However, the wording of the Act does not seem to
allow room for any more liberal interpretation or any interpretation more
advantageous to the applicant.
I would add that the rule
does not create an anomaly. The rule is made plain in each of the subsections
cited supra, and it imposes an obligation to pay the fees at the time
the application is made.
It may be apparent that the
text of these regulations raises certain practical difficulties, if we consider
the intention of the government in making them. As counsel for the applicant
pointed out, the provision seems to admit of no flexibility in respect of the
deadline where a request for a loan is made.
On the other hand, I agree
with the argument made by counsel for the respondent, which is that the program
in question is an exceptional program which does not, in itself, create any
right or privilege. The regulations merely allow for an exemption order to be
made, and in that case they may impose any condition designed solely to ensure
the proper administration of the system.
With respect to the doctrine
of reasonable expectation cited by counsel for the applicant, I find little
merit in it. The text of the rule is clear, and I see no special circumstances
in the case based on which I could find that the applicant was misled or that
he might have concluded that he was being granted an extension of time.
While I see no grounds on
which my intervention would be warranted, nonetheless the case of the applicant
and his family invites sympathetic consideration. The Court further recognizes
that the Immigration Act has always provided for exceptions to the usual
rules, which require that an application for permanent residence be made
"at a port of entry". It is up to the applicant to take the
initiative.
Lastly, I have considered
the remarks of counsel for the parties with respect to questions to be
certified. The parties may conclude on reading my reasons that I do not see
the necessity for this here.
L.
Marcel Joyal
J.
OTTAWA, Ontario
February 3, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-426-96
STYLE OF CAUSE: Ngaliema
Zena Bula v. M.C.I.
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: November
20, 1996
REASONS FOR ORDER OF JOYAL J.
DATED: February
3, 1997
APPEARANCES:
Jean-Michel Montbriand FOR
THE APPLICANT
Michèle Joubert FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Doyon, Guertin, Montbriand & Plamondon FOR
THE APPLICANT
Montréal, Quebec
George Thomson FOR
THE RESPONDENT
Deputy Attorney General of Canada
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