Bermanesh v. Canada (Minister of Citizenship and Immigration), docket IMM-3672-96

     IMM-3672-96

BETWEEN:

     MEHRDAD BERMANESH,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

RICHARD J.:

     This is an application for judicial review of a decision of an Immigration Officer dated September 17, 1996, that the applicant did not meet the requirements for landing under the Deferred Removal Orders Class because he did not submit his application for landing to an Immigration Officer within 120 days after becoming a member of the Deferred Removal Orders Class as stipulated in paragraph 11.401(a) of the Immigration Regulations, 1978.

     The applicant was born in Iran on September 23, 1962 and has Iranian citizenship. He arrived in Canada on March 15, 1992. On September 23, 1992, the Immigration and Refugee Board determined that he was not a convention refugee. He became a member of the Deferred Removal Orders Class on September 30, 1995. He submitted his application for landing on August 9, 1996. On September 17, 1996, he was informed that he did not meet the requirements for landing under the Deferred Removal Orders Class.

     The decision of the Immigration Officer reads, in part, as follows:

We have completed a through review of your application and I regret to inform you that you do not meet the requirements for landing under the Deferred Removal Order Class. You did not submit your application for landing to an Immigration officer within 120 days after becoming a member of the Deferred Removal Order Class as stipulated in Immigration Regulations 11.401(a). As you became a member of this class on 30 September 1995, your application should have been submitted no later than 28 January 1996.

     The Regulation reads as follows:

11.401. A member of the deferred removal orders class and the member's dependants, if any, are subject to the following landing requirements:

(a) the member must submit an application for landing to an immigration officer within 120 days after becoming a member of the deferred removal orders class;

     The Applicant challenged the constitutionality of the subsection 11.401 (a) of the Immigration Regulations, 1978 (SOR/78-172) in that it violates the applicant's right under section 12 of the Canadian Charter of Rights and Freedoms not to be subjected to any cruel and unusual treatment or punishment.

     However, as required by section 57 of the Federal Court Act, the applicant did not give notice of constitutional question. In Giagnocavo v. M.N.R.,¹ Isaac C.J. wrote as follows:

Furthermore, since the appellant has not given notice of constitutional question required by section 57 of the Federal Court Act we are of the view that this Court is without jurisdiction to adjudge the issue whether subrule 300(1) is inconsistent with any provision of the Canadian Charter of Rights and Freedoms as the appellant contends.

     At the hearing, counsel for the applicant withdrew the constitutional challenge.

     The applicant submits that the Immigration Officer breached his duty to act fairly in making his decision in spite of the fact that the applicant has made several unsuccessful calls to Immigration Canada. The applicant states that the Immigration officials he spoke with were unable to give him proper information. He also states that he was not informed of the existence of any deadline about his application for landing.

     He claims that the delay is due to his confusion concerning the law and his status despite his efforts to obtain clarifications.

     There is no evidence that he sought an extention of the deadline.

     As noted by Mr. Justice Gibson in the Melinte² case, there is no provision in the Immigration Act or Regulations that confers jurisdiction on an Immigration Officer to extend the time permitted by paragraph 11.401(a). As in the Melinte case, the Immigration Officer did not use or abuse a discretionary power. Rather, the Immigration Officer fulfilled a statutory duty to reject an application filed out of time.

     In the Melinte case, the applicant had alleged the late filing arose directly from erroneous advice provided by an official in the Ministry to a Member of Parliament who had been approached by the applicant for assistance in determining when he should file his application. Here the applicant began to prepare his own application in June 1996, several months beyond the 120 days prescribed for filing it. The difficulty he says he encountered with Ministry officials thereafter concerned his eligibility under the program and the kind of removal order that had been made and its date. He was told that there was an exclusion order on his file.

     In the Ponnampalam³+ case, Mr. Justice Rothstein concluded that there is no overriding principle of fundamental justice that confers discretion on an Immigration Officer to override the 120 day limitation period in paragraph 11.401(a) of the Regulations. He therefore concluded that the Immigration Officer did not have jurisdiction to extend time.

     There are no grounds on which I can intervene in this case. The application is dismissed.

     Counsel for the applicant submitted that the following question be certified:

Whether verbal information from an Immigration Officer can be relied on by an applicant as well as written information?

     I decline to certify that question.

     However, Mr. Justice Rothstein certified the following question in the Ponnampalam case:

Does an immigration officer processing an application made pursuant to the D.R.O.C. regulations have the discretion to extend the time for filing the application, either pursuant to the principles of natural justice or fundamental justice, if an applicant files an application after the 120 day period prescribed by the regulations?

     This question is now before the Federal Court of Appeal. I therefore certify the same question in this application.

     __________________________

     Judge

Ottawa, Ontario

August 29, 1997

__________________

¹      (1995), 189 N.R. 225 (F.C.A.).

²      Melinte v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 996, Court File No. IMM-3655-96 dated July 17, 1997.

³      Ponnampalam v. Canada (Minister of Citizenship & Immigration) (1996), 34 Imm L.R. (2d) 166 (Court of Appeal No. A-543-96).