Date: 20120301
Docket:
IMM-3766-11
Citation:
2012 FC 283
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Montréal, Quebec,
March 1, 2012
PRESENT: The Honourable
Madam Justice Bédard
BETWEEN:
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MAROUANE EL YAHYAOUI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by Citizenship and
Immigration Canada (CIC), which refused to process the application for the
restoration of the applicant’s temporary resident status because it was filed
beyond the 90 day time limit provided under section 182 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
[2]
For the
following reasons, the application is dismissed.
[3]
The
applicant had a temporary resident permit that was valid until September 30,
2010. Section 182 of the Regulations provides that a visitor
may file an application for restoration of temporary resident status within 90 days
following the loss of status. This is a strict
time limit (Nzegwu v Canada (Minister of Citizenship and Immigration),
2010 FC 107 (CanLII). The CIC’s Operational
Bulletin 195 provides that applications for work permits must be submitted to
the Case Processing Centre in Vegreville, but that in some identified emergency
situations, work permits may also be sent to a CIC local office.
[4]
Section 13
of the Regulations provides the methods used for the purpose of producing
documents required under the Immigration and Refugee Protection Act, SC
2001 c 27, or by the Regulations:
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13. (1) Subject to subsection (2), a requirement of the Act
or these Regulations to produce a document is met
(a) by producing the original
document;
(b) by producing a certified
copy of the original document; or
(c) in the case of an
application, if there is an application form on the Department’s website, by
completing and producing the form printed from the website or by completing
and submitting the form on-line, if the website indicates that the form can
be submitted on-line.
Exception
(2) Unless these Regulations provide
otherwise, a passport, a permanent resident visa, a permanent resident card,
a temporary resident visa, a temporary resident permit, a work permit or a
study permit may be produced only by producing the original document.
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13. (1) Sous
réserve du paragraphe (2), la production de tout document requis par la Loi
ou le présent règlement s’effectue selon l’une des méthodes suivantes :
a) la
production de l’original;
b) la
production d’un double certifié conforme;
c) dans
le cas d’une demande qui peut être produite sur un formulaire reproduit à
partir du site Web du ministère, la production du formulaire rempli, ou l’envoi
de celui-ci directement sur le site Web du ministère s’il y est indiqué que
le formulaire peut être rempli en ligne.
Exception
(2) Sauf disposition contraire du présent règlement, les
passeports, visas de résident permanent, cartes de résident permanent, visas
de résident temporaire, permis de séjour temporaire, permis de travail et permis
d’études ne peuvent être produits autrement que par présentation de l’original.
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[5]
The
CIC Web site contains a guide that describes how applications to change or
extend a stay in Canada can be done. The guide provides the
information required for submitting an application for restoration of status
and explains how and where the applications can be submitted. At the time in question, the guide provided that an
application for restoration of status could be sent by mail to the Case
Processing Centre in Vegreville, Alberta, at the address indicated in the
Guide, or electronically by an unrepresented applicant. It should be noted that
at that time, CIC did not allow representatives to access a client’s online
accounts. This means that a person who was not represented could make an
electronic request, while a person who was represented could not use this
sending method and had to send his or her request by mail. This situation has
since been rectified.
[6]
The
90 day time limit for submitting the application for restoration expired
on December 29, 2010. The applicant was represented by Hugues Langlais. The
applicant’s record was prepared by Mr. Langlais and it was completed on
December 23, 2010, when the applicant had paid the fees required by CIC
for processing an application for restoration. Mr. Langlais’
office was closed for the holidays from December 24 to 28, 2010,
inclusive.
[7]
On
December 29, 2010, Mr. Langlais’ assistant sent the applicant’s
application for restoration to the Case Processing Centre in Vegreville by fax,
to the attention of an office manager. It was agreed that the applicant’s
application for restoration could not have been filed at a CIC local office
because it did not meet the scope of Operational Bulletin 195. Mr. Langlais sent the application by fax because he
knew that it was the last day to file the application within the 90 day
time limit and that the original of the application, which he sent on the same
day by Express Post, would not be received the same day at the Case
Processing Centre in Vegreville. CIC refused to consider the application for restoration
received by fax and deemed that the application received by mail on December 30,
2010, had been filed outside the 90 day time limit provided under section 182
of the Regulations. The application for
restoration of the applicant’s status was therefore dismissed.
[8]
The
applicant made two main criticisms with regard to the CIC’s decision.
[9]
First,
he submits that the CIC’s administrative policy that was in force at the time
and that prevented a represented applicant to submit an application
electronically was unfair, unreasonable and violated the rules of natural
justice because it disadvantaged applicants who chose to be represented in
their cases with the CIC.
Accordingly, an unrepresented applicant’s application
for restoration of status could be sent electronically one minute before
midnight within the limitation period, whereas a represented applicant’s application
had to be mailed with sufficient time to allow the application to reach the
Case Processing Centre in Vegreville before the expiry of the 90 day time
limit.
[10]
Second, the applicant alleges that, given the urgency of
the situation, his counsel had no other way to send his application within the
time limit than to send it by fax. Therefore,
it was unreasonable for CIC not to accept the fax submission.
[11]
The
applicant’s arguments cannot succeed and, in my opinion, CIC’s decision to
refuse the applicant’s submission of his application for restoration contains
no reviewable error.
[12]
I
agree that CIC’s policy in force at the time disadvantaged clients who chose to
be represented as part of an application for a temporary residence permit or
restoration of status and that is probably why CIC has since changed its
policy. However, I find that this policy did not prevent applicants
from being represented in their cases, but it imposed on them to act
expeditiously, taking into account time frames for mail delivery. In this sense, I do not share the opinion of the applicant
that the administrative policy violated the rules of natural justice.
[13]
Further,
the application for judicial review in this case attacks the CIC’s decision to
refuse to receive the applicant’s application for restoration that was sent by
fax and is not intended to cancel the administrative policy in force at that
time. Therefore, I find that there is no cause for the Court to
rule on the lawfulness of this administrative policy.
[14]
However,
the applicant submits as a second argument that, in his case, CIC should not
have applied the administrative policy and allowed his application to be
submitted by fax.
The applicant acknowledges that his application, sent
by mail, was received by CIC after the expiry of the 90 day time limit and
that his application sent by fax did not comply with CIC’s administrative
policy. This policy is clearly set out in the
guide prepared for applicants and posted on the CIC Web site. The applicant submits, however, that given the urgent
situation that he found himself in, it was unreasonable that CIC did not accept
the fax submission.
[15]
With
respect, I do not share this view. The applicant had a 90 day
time limit to file his application and other than the payment of fees required
by CIC, his file was ready on December 9, 2010. But he waited until December 23, 2010, before giving
his lawyer the amount required to pay the fees required by CIC. I find that the applicant did not act diligently. I further understand that Mr. Langlais’ office was
closed from December 24 to December 28, 2010, but it is unfortunate
that Mr. Langlais did not take the necessary measures to mail the
applicant’s application for restoration on December 23, 2010, or at least
before December 29, 2010. I therefore
find that the reasons that the applicant’s application was not sent before
December 29, 2010, are not reasons that can be described as an “urgent
situation” or that the alleged “urgency” was brought on by events that were out
of the control of the applicant and/or his lawyer.
[16]
Moreover,
it is up to CIC, in accordance with legislation and regulations, to decide on
the administrative procedures relating to submitting documents, and it was not
unreasonable to decide that the applications for restoration of status could
not be sent by fax.
Moreover, submitting an application for restoration
by fax would not have met the requirements of section 13 of the
Regulations since a document sent by fax is not an original document.
[17]
For
all of these reasons, I find that there is no cause for the Court to intervene.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the
application for judicial review is dismissed. The parties did not propose a
question for certification and there is none in this matter.
“Marie-Josée
Bédard”
Certified true
translation
Catherine Jones,
Translator
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