Date: 20100910
Docket: IMM-6532-09
Citation:
2010 FC 899
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, September 10, 2010
PRESENT:
The Honourable Madam Justice Bédard
BETWEEN:
HONG
SHUN CHEN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision by a visa officer at the Canadian Embassy in Beijing, China, dated
September 22, 2009, refusing the applicant’s application for a
temporary work visa. The applicant, a Chinese national, wanted to come to work
as a cook in a restaurant in Rimouski for a two-year period.
The visa officer refused the applicant’s application for a work permit on the
ground that he had not demonstrated to the officer that he would leave Canada at the end
of the authorized stay.
[2]
The
respondent raised two preliminary objections to the application for judicial
review. In support of his first objection, the respondent argues that the
application for leave and judicial review was filed beyond the sixty-day time
limit prescribed by paragraph 72(2)(b) of the Act and was not
accompanied by a request for an extension of time. The second objection is
based on the lack of an affidavit signed by the applicant in support of his
application for leave and judicial review.
[3]
For
his part, the applicant maintains that his application for leave and judicial
review was not late and, in the alternative and subject to his primary
position, he asked at the hearing that the Court grant him an extension of
time. As for the objection about the lack of an affidavit signed by the
applicant, he submits that the immigration consultant’s affidavit is sufficient
because he has a personal knowledge of the process that the visa officer
followed.
Objection concerning
time limit
[4]
The
visa officer’s refusal letter is dated September 22, 2009. The
applicant acknowledges receiving the letter on September 29, 2009. After
receiving the decision, the immigration consultant requested the Computer
Assisted Immigration Processing System (CAIPS) notes to find out the reasons
for the refusal. The consultant received the CAIPS notes on
November 13, 2009.
[5]
On
December 16, 2009, more than 60 days after receiving the refusal
letter, the applicant attempted to file his application for leave and judicial
review without a request for an extension of time.
[6]
In
a letter dated December 16, 2009, written at the request of the
Registry officer of the Court, counsel for the applicant explained why, in his
view, his application for leave and judicial review had been filed within the
time limit. Following the Registry officer’s request for directions,
Mr. Justice Harrington authorized the filing of the application for
leave and judicial review. The application for leave to file an application for
judicial review was subsequently allowed by Mr. Justice Shore on
June 2, 2010.
[7]
The
applicant contends that when he filed his application for judicial review on
December 16, 2009, he was complying with the sixty-day time limit prescribed
in paragraph 72(2)(b) of the Act since it began to run on the date he
received the visa officer’s CAIPS notes, i.e. November 13, 2009, not on
the date he received the refusal letter, September 29, 2009.
[8]
He
maintains that it was only as of that date that he could assess the reasons why
his application for a work permit was refused and evaluate whether he had a legal
remedy.
[9]
Section
72 of the Act sets out the time limit for filing an application for judicial
review and how it is calculated. It reads as follows:
|
72.(1)
Judicial review by the Federal Court with respect to any matter – a decision,
determination or order made, a measure taken or a question raised – under
this Act is commenced by making an application for leave to the Court.
Application
(2)
The following provisions govern an application under subsection (1):
. .
.
(b)
subject to paragraph 169(f), notice of the application shall be served
on the other party and the application shall be filed in the Registry of the
Federal Court (“the Court”) within 15 days, in the case of a matter arising
in Canada, or within 60 days, in the case of a matter arising outside Canada,
after the day on which the applicant is notified of or otherwise becomes
aware of the matter;
|
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure – décision,
ordonnance, question ou affaire – prise dans le cadre de la présente loi est
subordonnée au dépôt d’une demande d’autorisation.
Application
(2)
Les dispositions suivantes s’appliquent à la demande d’autorisation:
. .
.
b) elle doit être signifiée à
l’autre partie puis déposée au greffe de la Cour fédérale – la Cour – dans
les quinze ou soixante jours, selon que la mesure attaquée a été rendue au
Canada ou non, suivant, sous réserve de l’alinéa 169f), la date où le
demandeur en est avisé ou en a eu connaissance;
|
[10]
The
applicant submits that the decision without reasons that he received on
September 22, 2009, constitutes a “matter” under section 72(1) of the
Act and that the reasons for the decision, i.e. in this case, the CAIPS notes,
also constitute a “matter” within the meaning of the same section. The matter
is in the form of a “question” in this case.
[11]
He
contends that this interpretation is even clearer in the English version of
section 72, which refers to a “question raised”. The applicant maintains
that he did not become aware of the “question raised” until he was able to read
the reasons for the visa officer’s decision because it was only then that he
could assess whether there were errors and whether he was entitled to make
submissions against the decision.
[12]
In
his reply, the applicant also suggests that the fact that the direction issued
by the Court authorized the filing of his application for leave and judicial
review also means that it accepted his arguments as to when the time limit
begins to run for filing an application for leave.
[13]
The
respondent, for his part, argues that interpreting section 72 of the Act does
not raise any ambiguity. The time limit runs from the date the applicant is notified
or otherwise becomes aware of the decision, not the date when the CAIPS notes
are received.
[14]
As
regards the permission granted to file the application for leave, the
respondent submits that there is no indication in the oral directive of the
judge who dealt with the request that he affirmed the applicant’s position, and
that he left everything to the discretion of the judge who would hear the case
on the merits.
[15]
With
respect, I do not share the applicant’s position, and I find that his
application for leave and judicial review was filed late.
[16]
First,
I would like to comment on my jurisdiction to determine the issue of time
limits for filing the application. The Federal Court and the Federal Court of
Appeal have recognized that the judge seized with an application for judicial
review has jurisdiction to rule on a request for an extension of time where
this issue was not determined or cannot be inferred from the decision allowing
the application for leave (Deng Estate v. Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 59; McBean v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1149; Villatoro v.
Canada (Minister of Citizenship and Immigration), 2010 FC 705).
[17]
With
respect to the directive, in authorizing the [translation]
“filing” of the application the judge did not determine the objection regarding
the late filing of the application for leave, and there is no basis for
inferring that he thereby affirmed the applicant’s position.
[18]
The
same principle also applies to the decision of the judge who allowed the
application for leave. It cannot be inferred that he affirmed the applicant’s
position. He was also not seized with the request for an extension of time
since it was made subsequently, at the hearing.
[19]
Regarding
the applicant’s submission as to when the time limit begins to run for filing
an application for leave, it is my opinion that, although clever, it does not
stand up to analysis. It appears clear to me that the time limit for challenging
a decision refusing a temporary visa begins to run on the date the applicant
becomes aware of the refusal decision, not on the date he or she receives the
reasons for decision.
[20]
There
is no question that the letter refusing the temporary visa is a “decision” that,
pursuant to section 72 of the Act, may be judicially reviewed. The CAIPS notes are,
in a sense, incidental to the decision because they provide the reasons for it,
but, in my view, they do not per se constitute a new “matter” that can be challenged
independently.
[21]
Moreover,
absent Parliament’s express indication to the contrary, I do not believe that a
single decision can be subject to two different time limits for the purposes of
a dispute. Where Parliament permits the time limits for disputing a decision to
run from the date the reasons for decision are received, it states that
explicitly.
[22]
That
is the case, for example, with section 169 of the Act, which sets out the
provisions that apply to decisions made by different divisions of the
Immigration and Refugee Board (the Board). Paragraph (f) of this section addresses
the issue of time limits. It appears clear from this provision that Parliament
wanted the period in which to challenge a decision to be calculated from the
later of the giving of the notice of the decision and the sending of reasons:
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169.
In the case of a decision of a Division, other than an interlocutory
decision:
…
(f)
the period in which to apply for judicial review with respect to a
decision of the Board is calculated from the giving of notice of the decision
or from the sending of written reasons, whichever is later.
[Emphasis
added.]
|
169.
Les dispositions qui suivent s’appliquent aux décisions, autres
qu’interlocutoires, des sections:
(…)
f) les délais de contrôle
judiciaire courent à compter du dernier en date des faits suivants:
notification de la décision et transmission des motifs écrits.
[Je
souligne.]
|
[23]
Parliament
did not see fit to make the same distinction with respect to a visa officer’s
decision. Absent an explicit reference, it may therefore be inferred that the
point of departure for the period in which to challenge this matter is the date
on which the applicant was notified or became aware of the visa officer’s
decision.
[24]
Paragraph
72(2)(b) of the Act indicates that paragraph 169(f) is an
exception when it states that the time limit begins to run “subject to
paragraph 169(f)” 15 or 60 days “after the
day on which the applicant is notified of or otherwise becomes aware of the
matter.” [Emphasis added.] If paragraph 72(2)(b) of the Act were
interpreted as permitting the time limit for filing an application for leave
and judicial review to be calculated from the date the reasons for decision are
received, Parliament’s express reference to paragraph 169(f) of the Act
would not make sense.
[25]
Moreover,
Rules 9 and 10 of the Federal Courts Immigration and Refugee Protection
Rules provide another indication that Parliament did not intend, absent an
explicit reference, that the period for filing an application for leave and
judicial review be calculated from the date the reasons for decision are
received. In fact, those Rules provide a mechanism that permits applicants to
complete their file where they have not received the written reasons for a
decision at the time they file their application for leave. The Rules clearly state
that applicants must file within the time allowed but that they may perfect their
file later by completing it in light of the reasons received subsequently.
[26]
Rule
9 states that where applicants have not received the written reasons of the tribunal,
they may indicate that in their application for leave, and the Court Registry
will take steps to ensure that the applicants obtain the reasons. Rule 10 then provides
a mechanism for applicants to perfect their application for leave once they receive
the reasons for decision. Rules 9 and 10 would serve no purpose if the time
limit for filing an application for leave and judicial review were calculated
from the date the reasons for decision are received.
[27]
Accordingly,
it appears clear to me that the time limit for challenging a decision refusing
a temporary visa begins to run on the date the applicant becomes aware of the refusal
decision, not the date he or she receives the reasons for decision.
Request for extension of
time
[28]
The
application for leave and judicial review was not accompanied by a request for
an extension of time, and counsel for the applicant made the request for an
extension of time in the alternative directly at the hearing.
[29]
First,
the applicant did not comply with Rule 6 of the Federal Courts Immigration
and Protection Rules, which states that a request for an extension of time
must be included in an application for leave, and he provided no explanation to
justify his omission. Even if the applicant maintains that his application was
filed within the time limit, nothing prevented him from requesting an extension
of time in the alternative in his application for leave instead of waiting, as
he did, until the hearing.
[30]
In
any event, I find that the applicant did not submit any ground that would
justify granting an extension of time. The applicant did not give any
explanation to justify the delays other than to state that all the stakeholders
in the file had acted diligently and in good faith. These explanations are not sufficient.
The time limits for filing an application for leave and judicial review were prescribed
by Parliament, which, moreover, provided for more time where decisions are
issued outside Canada.
[31]
These
time limits cannot be extended at will, and complying with them is not optional.
As the Federal Court of Appeal stated in Canada v. Berhad, 2005 FCA 267,
time limits serve the public interest and bring finality to administrative
decisions.
[32]
A
request for an extension of time should be granted only where the applicant has
“special reasons” (paragraph 72(2)(c) of the Act). The jurisprudence has
developed criteria that serve as a guide for assessing “special reasons”. These
factors were set out by the Federal Court of Appeal in Grewal v. Canada (Minister of
Employment and Immigration), [1985] 2 F.C. 263 (C.A.) and in Canada (Attorney
General) v. Hennelly, [1999] F.C.J. No. 846 (QL) and have constantly
been applied since. The applicant must demonstrate
a. a continuing
intention to pursue his or her application;
b. that the grounds
raised on the merits disclose an arguable case;
c. that a
reasonable explanation for the delay exists; and
d. that no
prejudice to the respondent arises from the delay.
[33]
In
this case, although the applicant has an arguable case on the merits of his
application, he failed to provide any reasonable explanation to justify his
delay.
[34]
The
application for judicial review was therefore filed late, and the circumstances
of this case do not justify the Court granting an extension of time.
[35]
Given
my findings as to the late filing of the application for leave and judicial
review, it is not necessary that I rule on the respondent’s second objection or
on the applicant’s arguments against the impugned decision. The application for
judicial review is therefore dismissed.
[36]
Counsel
did not suggest any question of general importance for certification.
JUDGMENT
THE COURT dismisses the application for judicial review. No
question is certified.
“Marie-Josée
Bédard”
Certified true
translation
Mary Jo Egan LLB
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