Date: 20080521
Docket: IMM-4221-07
Citation: 2008 FC 603
BETWEEN:
Qianhui DENG
Administrator on behalf of the
Estate of Shiming Deng (the deceased)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER
Pinard
J.
[1]
This
is an application for judicial review of the decision made on October 26, 2005
to refer Shiming Deng (“Mr. Deng”) to an admissibility hearing under subsection
44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”), and to confiscate his passport.
[2]
This
application for judicial review is brought by Qianhui Deng, the father of Mr.
Deng and Administrator on behalf of his Estate (the “applicant”).
[3]
Mr.
Deng came to Canada from China in 1999. He made a refugee claim based on
his association with the Falun Gong, which the Field Operation Support System
(FOSS) notes indicate was accepted by the Refugee Protection Division on
January 31, 2002. Mr. Deng then became a permanent resident of Canada after being
sponsored by his wife. The couple has since divorced.
[4]
On
June 3, 2004, a FOSS entry was created relating to a letter Mr. Deng sent to
immigration officials, which stated that he thought he was in the Fraser
Correctional Centre, and that he had made a false refugee claim.
[5]
On
August 3, 2004, Mr. Deng was convicted of aggravated assault under subsection
268(2) of the Criminal Code, R.S.C. 1985, c. C-46, an offence punishable
by a maximum term of imprisonment of fourteen years. According to the
Certificate of Conviction, Mr. Deng’s sentence included a three year probation
order with the condition that he “take reasonable steps to maintain yourself in
a condition that your schizophrenia will not likely cause you to conduct yourself
in a manner dangerous to yourself or anyone else and not likely you will commit
further offences.”
[6]
Mr.
Deng went to China in November
2004, and returned to Canada in January 2005. Although the port of
entry officer noted that Mr. Deng had been convicted of aggravated assault, no
further action was taken.
[7]
Mr.
Deng returned to China shortly thereafter, and came back to Canada on October
26, 2005. The port of entry officer, Kevin Boothroyd (“Mr. Boothroyd”),
questioned Mr. Deng concerning his status in Canada, his refugee
claim, and his conviction. Concerning his refugee claim, Mr. Deng stated that
he had exaggerated his fear of returning to China as he wanted
to remain in Canada. Mr.
Boothroyd also asked Mr. Deng about the letter he had sent to Canadian
immigration officials while he was in detention before his trial:
Mr. Boothroyd: During that time did you
send a letter to Canada immigration regarding your
refugee claim?
Mr. Deng: I think so, but I am not very
sure, because during that four month period, I was really depressed at that
time, honestly, for three months I was put in the mental centre, they said that
had to wait for an assessment from a doctor about my physical condition.
Based
on the information he had obtained, Mr. Boothroyd made a report to file:
Subject arrived at VIA on 26OCT2005 and
presented a PR card. He made a refugee claim and obtained refugee status, then
became a PR when sponsored by his (then) spouse. He was convicted of aggravated
assault in 2004 in Vancouver and he has admitted that the
substance of his refugee claim is essentially a fabrication. He was reported
for 36(1)(a) and convoked to an admissibility hearing. He will also be convoked
to a hearing to have his CR status vacated. The subject then stated that he
wishes to withdraw his refugee and PR status and return to China. ENF7.10 does not permit the voluntary
relinquishment of PR status in these circumstances. The subject has been
informed that a hearing will be convoked as soon as possible. He has been
informed that if he wishes to leave Canada we will not stop him if he comes to
this office with a ticket to depart to China. His passport has been sent to PREC.
[8]
Although
the report to file is dated October 26, 2005, it also notes the fact that Mr. Deng
died on November 22, 2005.
[9]
The
matter was immediately referred to Gurjit Parhar (“Mr. Parhar”), who describes
himself in a declaration included in the Certified Tribunal Record, as a
Minister’s Delegate employed by the Canada Border Services Agency (CBSA). The
respondent has since admitted that Mr. Parhar did not have this delegated
authority. Mr. Parhar reviewed Mr. Boothroyd’s report, and, after interviewing
Mr. Deng, concluded that he would convoke Mr. Deng to a hearing.
[10]
A
hearing was held by the Immigration Division of the Immigration and Refugee
Board (the “ID”) on November 14, 2005. However, Mr. Deng was not represented by
counsel, and the ID adjourned the matter for one week.
[11]
On
November 22, 2005, a second hearing was held, at which Mr. Deng was still
unrepresented by counsel. The ID concluded that the applicant was inadmissible
under paragraph 36(1)(a) of the Act, and issued a deportation order
against Mr. Deng. Mr. Deng committed suicide that same day.
[12]
The
applicant in this case affirms that he only heard about his son’s death on
December 22, 2005. On January 18, 2007, the applicant and his wife came to Canada to find out
more about the events that had occurred shortly before Mr. Deng’s death. The
application for judicial review was filed on October 12, 2007.
[13]
An
action, in T-2041-07, is stayed pending the disposition of this application.
[14]
The
respondent has noted that the proper respondent to this application is the
Minister of Public Safety and Emergency Preparedness, which became responsible
for the relevant portions of the public service on April 5, 2005. I agree.
[15]
The
respondent raised several preliminary issues in the written submissions
contained in his Motion Record, one of them being the necessity to deal with
the applicant’s request for an extension of time for the filing of this
application for judicial review. At the hearing before me, counsel for the
parties were heard on this specific preliminary issue only, as its disposition
can be dispositive of the whole matter. It was understood that if the requested
extension of time is granted, another hearing would be held to deal with the
other issues.
[16]
Turning
now to the applicant’s request for an extension of time, I agree with the
respondent that the fact that leave to apply for judicial review has been granted
in this case is not determinative of the issue of an extension of time as the
leave order is silent on that issue. Indeed, in Deepak Nayyar v. The
Minister of Citizenship and Immigration, 2007 FC 199, my colleague Mr.
Justice Frederick E. Gibson stated the following:
[6] In Khalife v. Canada (Minister of Citizenship and
Immigration)[1],
my colleague Justice Mosley dealt with the issue of extension of time to file
in paragraphs 12 to 16 of his reasons. He wrote:
But whether the applicant was aware of the
decision and made a timely decision to seek judicial review was now moot,
counsel argued, as a judge of this Court had granted leave for the application
for judicial review to be heard. While the order granting leave is silent on
the question of delay, the applicant submits that the court hearing the
application should assume that the judge who granted leave also granted an
extension of time for the application to be filed, pursuant to paragraph 72(2)(c)
of the Act, as that is what is required by the rules.
Subsection 6(2)...of the Federal
Court Immigration and Refugee Protection Rules...(The Rules) provides that
a request for an extension of time shall be determined at the same time, and on
the same materials, as the application for leave. Moreover, the applicant
submits, the respondent's memorandum of fact and law submitted in response to
the leave application, had expressly objected to the late filing. The judge
granting leave must be presumed to have directed his or her mind to that
objection and decided not to accept it, or so it is argued.
While this argument is
inventive, I cannot agree that the question is moot in this case. Subsection
6(1)...of the Rules requires that a request for an extension of time shall be
made in the application for leave in accordance with Form IR-1 set out in the
Schedule...to the Rules. No such request was made by the applicant in his
application for leave. In my view, even if leave has been granted, delay in
bringing the application remains a live issue to be dealt with by the judge
hearing the matter and may be dispositive of the application. There will be
circumstances in which a decision as to whether an extension should be granted
can only be determined at a hearing. The limited amount of time available to a
judge considering whether to grant or deny leave does not permit a thorough
examination of the reasons why an extension may be justified. I am not prepared
to conclude that silence on the matter in the leave order should be taken as
acquiescence to an extension, particularly where the applicant has not made the
request in his application.
In any
event, the Court retains the discretion throughout the consideration of an
application to grant an extension of time where it deems it necessary in order
to do justice between the parties:... . In the
particular circumstances of this case, I do not consider that it would do
justice to the application to dispose of it without consideration of the
merits. Accordingly, I will grant the extension the applicant should have requested
and treat the application as having been made within the time limit.
[citations
omitted, emphasis added]
[7] In
this matter, a request for an extension of time to file was included in the
application for leave and judicial review. It was not dealt with in the order
granting leave. I adopt Justice Mosley's conclusion that this Court retains
discretion throughout the consideration of an application for judicial review
to grant an extension of time where it deems it necessary in order to do justice
between the parties. Like Justice Mosley, I am satisfied that, in the
particular circumstances of this case, it would not do justice to the
application to dispose of it without consideration on the merits. Once again
like Justice Mosley, I will grant an extension of time to file to the date of
actual filing. Neither counsel before me took exception to this course of
action.
[17]
In
order to obtain an extension for time, an applicant must meet four criteria:
(a) the applicant must have
demonstrated a continuing intention to pursue the application;
(b) the application must have some
merit;
(c) there must be a reasonable
explanation for the delay; and
(d) the extension of time must not
cause prejudice to the respondent.
[18]
In
the case at bar, the decision in question was made on October 26, 2005.
According to paragraph 72(2)(b) of the Act, Mr. Deng had fifteen days to
file an application for judicial review. There is no evidence that Mr. Deng
ever had any intention of doing so. To the contrary, he appeared at two ID
hearings, on November 14 and 22, 2005, the transcripts of which reveal that Mr.
Deng never raised any issue with regard to the validity of the decisions
leading up to the ID hearings.
[19]
Furthermore,
assuming, without deciding, that the application for judicial review has some
merit, the applicant has failed to provide a reasonable explanation for the
delay. The applicant has tried to explain the delay in bringing this
application by arguing that an application for judicial review would not have
been appropriate until the applicant had received more details about Mr. Deng’s
immigration file, on October 11, 2007, pursuant to an Access to Information
request. However, the evidence demonstrates that the applicant learned of Mr.
Deng’s death on December 22, 2005, but did not begin investigating Mr.
Deng’s immigration situation until early 2007. In my opinion, although the
applicant’s circumstances warrant sympathy, the applicant has not provided a
reasonable explanation for a two year delay, when the Act requires that an application
be filed within fifteen days.
[20]
Finally,
as the applicant has pointed out, the key facts in this application are
essentially uncontested, with the question being primarily about whether the
Officers lived up to their duty in taking the actions that they did. Therefore,
I do not find the respondent’s submission concerning the difficulty of
defending such an application to be convincing.
[21]
More
convincing, however, is the respondent’s submission concerning the finality of
administrative decisions. In this case, there is a delay of two years between
the Officers’ decisions and the filing of the application. In my opinion, the
importance of the finality of administrative decisions is not outweighed in the
circumstances of this case. (On the importance of the finality of
administrative decisions, see e.g. Berhad v. Canada, 2005 FCA
267, at paragraph 60, [2005] F.C.J. No. 1302 (C.A.) (QL).)
[22]
For
all the above reasons, after consideration of the above relevant factors, I
conclude that it would not be appropriate to grant the requested extension of
time in the particular circumstances of this case. Accordingly, given that this
conclusion is, in itself, dispositive of the whole matter, the application for
judicial review must be dismissed.
[23]
The
applicant has proposed several questions for certification, all of which are
essentially related to the same question, namely whether this Court must infer
that a Judge granted an extension of time to file a leave application if the
Judge granted leave, even though the Order granting leave was silent on the
question of an extension of time.
[24]
As
pointed out by counsel for the respondent, this Court has already considered
this question in several recent decisions and has held that silence on the
matter of an extension of time in a leave order should not be taken as
acquiescence to an extension and that even if leave has been granted, delay in
bringing an application remains a live issue to be dealt with by the judge
hearing the judicial review application and may be dispositive of the
application (see Khalife v. Canada (M.C.I.), 2006 FC 221, [2006] 4
F.C.R. 437, Nayyar v. Minister of Citizenship and Immigration, 2007 FC
199, [2007] F.C.J. No. 342 (T.D.) (QL), and Minister of Human Resources
Development v. Eason, 2005 FC 1698, 286 F.T.R. 14).
[25]
The
applicant has not provided any decisions that conflict with this Court’s
decisions in Khalife and Nayyar, above. The decision in Mutti
v. Minister of Citizenship and Immigration, 2006 FC 97, [2006] F.C.J. No.
143 (T.D.) (QL), referred to by the applicant, did not address the issue that
is currently before this Court. In that case, the Court explicitly considered
in the context of a stay application whether it should grant the applicant an
extension of time to file an application for leave and denied the extension of
time.
[26]
Consequently,
the questions proposed for certification by the applicant do not raise a
question of general importance and there will be no certification.
“Yvon Pinard”
Ottawa, Ontario
May
21, 2008
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