Adam v. Canada (Minister of Citizenship and Immigration), docket IMM-5090-97

Date: 19981223

Docket: IMM-5090-97

BETWEEN:

     NASTEHA MOHAMED ADAM

     Applicant

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

     REASONS FOR ORDER

NADON J.:

[1]      This is an application for judicial review pursuant to section 82.1(1) of the Immigration Act¹ (the "Act") seeking review of a decision of a Post Claim Determination Officer ("PCDO") who refused to consider the Applicant"s application under the Post-Determination Refugee Claimants in Canada ("PDRCC") class because the application was filed beyond the statutory time limit.

[2]      The facts of this case are as follows. The Applicant, Nasteha Adam, was born in Mogadishu, Somalia on August 12, 1978 and is a citizen of Somalia. She claimed refugee status and was refused on July 7, 1997. However, the Immigration and Refugee Board (the "Board") accepted that Somalia is a country with "no effective national government" and that it would be "objectively unreasonable" for the Applicant "to seek protection in her home area" of Mogadishu, but found that the Applicant had an Internal Flight Alternative (an "IFA") in the Galkayo region, in north-eastern Somalia where members of her clan have traditionally resided. In this regard, the Board stated at page 15 of its decision:

The panel fully recognizes that there may be real humanitarian and compassionate concerns or reasons for not returning persons such as the claimant to a country such as Somalia. This sentiment has been expressed on a number of occasions by members of the Federal Court in decisions upholding the findings of the Refugee Division as follows:

All this is not to suggest that the fate of Somalians in general and of the applicant in particular is not to provoke a sense of both outrage and despair. Conditions in Somalia cry for relief. However, these are considerations which our immigration laws leave to other authorities, and they are beyond the ken of the Board or of this Court.

The applicant may well have good grounds for humanitarian and compassionate grounds to obtain landed immigrant status, but that does not make her a Convention refugee.

Unfortunately, such humanitarian and compassionate considerations are beyond the mandate of the panel ...

[3]      When the Applicant received the Board"s decision denying her claim to Convention refugee status, she attempted to contact her lawyer who had relocated offices. When she did locate him, her lawyer advised her of her options with regard to a PDRCC application but, due to her lack of funds, she did not submit one. However, her lawyer did not advise her that she could sign the PDRCC application and send it in on her own, or that there was a time limit for filing the application. In her affidavit, the Applicant states the following:

6. Mr. Gertler told me that my options, including an Application for Leave and Judicial Review and a PDRCC required additional money payable to him, and my relatives gave him $50.00 to submit an application to the Federal Court on my behalf.

7. We did not discuss his assisting me in submitting a PDRCC, since this was too expensive. He did not advise me that there was a time limit for submitting the PDRCC and that I could sign the form and send it in on my own to ensure that the PDRCC application would be considered.²

[4]      The Applicant sought assistance from Parkdale Community Legal Services ("PCLS") where she was informed of the nature of the PDRCC application and that the time limit for submitting her PDRCC application had passed. PCLS submitted a PDRCC application on the Applicant"s behalf on October 2, 1997, with a cover letter explaining the cause of the delay.

[5]      On November 13, 1997, counsel for the Applicant received a letter from the PCDO advising her that the Applicant"s PDRCC application had been refused as it had not been submitted within the required time, that is15 days after the day the person is notified of the determination by the Refugee Division.³ After receiving the negative PDRCC decision, the Applicant"s counsel at PCLS advised her to submit a "humanitarian and compassionate" ("H & C") application pursuant to section 114(2) of the Act. According to Ms. Zelmanovits, a law student at PCLS, the Applicant could not afford the $500 processing fee for this.⁴

[6]      The Applicant received a notice from Niagara Falls Immigration to report for removal from Canada on January 15, 1998. The Applicant reported for removal on January 15, 1998 and is now residing in the United States awaiting the possibility of returning to Canada.

[7]      There are two main issues in this application for judicial review: (i) whether a PCDO has the implied inherent discretion to extend the time for filing a PDRCC application; and (ii) whether the refusal of the PCDO to extend the time limit for the Applicant"s PDRCC application in the circumstances of this case constitutes a denial of fundamental justice to the Applicant and a breach of the Canadian Charter of Rights and Freedoms⁵ (the "Charter").

    

(i) Inherent jurisdiction to extend time to file PDRCC application

[8]      Section 11.4(2)(b) of the Immigration Regulations⁶ reads as follows:

For the purposes of subsection 6(5) of the Act, a person whom the Refugee Division

(b) on or after May 1, 1997, has determined is not a Convention Refugee and who intends to apply for landing as a member of the post-determination refugee claimants in Canada class shall submit an application for determination of whether the person is a member of that class to an immigration officer not later than 15 days after the day the person is notified of the determination by the Refugee Division.

[9]      It is clear, in my view, that a PCDO has no discretion, inherent or otherwise, to extend the time limits for a PDRCC application.

[10]      In Wilbur-Ellis Co. of Canada v. Canada (M.N.R.)⁷, the issue was whether a judge of the Federal Court, Trial Division, had jurisdiction to grant leave to appeal a decision of the Canadian International Trade Tribunal where the delay to appeal had expired. Chief Justice Isaac of the Federal Court of Appeal observed at page 586 that, without a statutory warrant, a judge had no authority to extend the 90 day time limit to file a notice of appeal:

[T]he Trial Division had no authority to make an order that a notice of appeal may be filed nunc pro tunc within the prescribed 90 days since there is no statutory warrant either expressed or implied in the Federal Court Act or in the Customs Act for it to do so.

[11]      This same point was made by Mr. Justice Gibson in Melinte v. Canada (M.C.I.)⁸. This was a judicial review of an immigration officer"s decision that the applicant did not meet the eligibility criteria for the deferred removal orders class ("DROC") because he did not apply within 120 days of becoming eligible. Gibson J. said the following at page 294 of his decision:

Rather, [the immigration officer] fulfilled a statutory obligation to reject a DROC application filed late. If the drafters of the DROC scheme had wished to confer on immigration officers a discretionary power to relieve from the 120 day limitation, in cases where relief was warranted, and I think this is such a case, that discretionary authority could easily have been provided for. It was not.

[12]      Madame Justice McGillis makes this same point in Razavi v. M.C.I.⁹ when she says the following at page 41:

In the circumstances, I have concluded that the PCDO had no jurisdiction to consider a request for an extension of time limits in ss. 11.4(3), (4) and (5) of the Regulations, in the absence of an express legislative provision permitting him to do so. Furthermore, I am of the opinion that the dictates of fundamental justice enshrined in s. 7 of the Charter did not require the PCDO to entertain the applicant"s request to extend the time limit prescribed in the Regulations prior to making his administrative decision on the deemed application.

[13]      The date of the notice of the Refugee Division decision was July 7, 1997. The Applicant"s PDRCC application was mailed on October 3, 1997, close to three months later. As such, the Applicant missed the time limit. Nowhere in the Immigration Act or Immigration Regulations does there exist any authority for a PCDO to extend the 15-day statutory time limit for a PDRCC application to be submitted. The foregoing cases make clear that, without statutory authority, PCDOs do not have the jurisdiction to extend the time limit. Consequently, in the present matter, the PCDO did not have the discretion to extend the time limit for the PDRCC application.

(ii) Section 7 Charter breach

[14]      The Applicant submits that sections 11.4(2)(b) and 11.4(3)(b) are in violation of section 7 of the Charter; that such a strict time limitation on a procedure intended to assess risk to life, risk of extreme sanctions, and risk of inhumane treatment, prior to removal from Canada to a place where such treatment could occur, does not accord with the principles of fundamental justice. And, as such, the provisions should be found to be unconstitutional or alternatively an extension of time should be read into the provisions.

[15]      In addition to applying for landing as a member of the PDRCC class, an unsuccessful refugee claimant may make an application to facilitate his admission to Canada under the H & C grounds in subsection 114(2) of the Immigration Act:

The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person"s admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

[16]      In Sinnappu v. M.C.I.,¹⁰ the applicants were Tamils and citizens of Sri Lanka. They were found not to be Convention refugees because they had an IFA in Colombo. Prior to Feburary 1, 1993, an immigration officer automatically reviewed any case involving a rejected refugee claim as a member of the PDRCC class in order to determine whether the unsuccessful refugee claimant would be subjected to "unduly harsh or inhumane treatment in the country to which he was to be removed".¹¹ The applicants were advised by a letter dated April 13, 1995 that they were not members of the PDRCC class. The applicants claimed not to have received this letter and that they only became aware of the PDRCC decision during a pre-removal interview in December 1995. They filed an application for leave and for judicial review of the decision to remove them to Sri Lanka. In October 1996, they made an application pursuant to ss. 114(2) of the Act based on H & C grounds which had not been decided by the time of their judicial review application.

[17]      In Sinnappu, Madame Justice McGillis concluded that where a claimant has not availed himself of a legislative option in a timely manner, he will be found to have failed to establish that he has suffered prejudice or unfairness by virtue of the delay. In addition, where he has not exhausted his legislative avenues of recourse by making an H & C application, he will not be able to establish a Charter breach. At page 49 of her decision, McGillis J. writes:

Indeed, the applicants, who have no right to remain in Canada, had an obligation to pursue actively and aggressively all legislative avenues available to them in an attempt to obtain status in this country. The applicants" failure to avail themselves, in a timely manner, of a legislative option cannot constitute the foundation for a subsequent argument that they have suffered prejudice or unfairness by virtue of delay. In the circumstances, given that the applicants had not exhausted their legislative avenues of recourse by making an application for humanitarian or compassionate relief prior to the scheduled date of removal, they have failed to establish that their rights under s. 7 of the Charter were breached.

[18]      Madame Justice McGillis makes this point again in Razavi, supra. In this case, the applicant, an unsuccessful refugee claimant, was deemed to have made a PDRCC application by virtue of the old Immigration Regulations¹² (the "Regulations"). Following the expiration of the time period prescribed in the Regulations , a lawyer twice requested an extension of time to permit the applicant to make written submissions. No response was ever given to these requests. A PCDO determined that the applicant was not a member of the PDRCC class and this decision was challenged by way of a judicial review on the basis that the failure of the PCDO to consider the request for an extension of time breached the applicant"s right to fundamental justice under section 7 of the Charter . Madame Justice McGillis states at page 41 that,

Not only did the applicant not pursue his application for leave and his deemed application for landing as a member of the PDRCC class in a timely manner, but he has also failed to launch an application for landing on humanitarian and compassionate grounds. Since the applicant had not exhausted his legislative avenues of recourse by making an application for humanitarian and compassionate relief, which may also be based on risk, he has failed to establish that any of his rights under s. 7 of the Charter have been breached.

     Madame Justice McGillis concludes by saying the following at page 41:

In the circumstances, I have concluded that the PCDO had no jurisdiction to consider a request for an extension of time limits in ss. 11.4(3), (4) and (5) of the Regulations, in the absence of an express legislative provision permitting him to do so. Furthermore, I am of the opinion that the dictates of fundamental justice enshrined in s. 7 of the Charter did not require the PCDO to entertain the applicant"s request to extend the time limit prescribed in the Regulations prior to making his administrative decision on the deemed application.

[19]      The Applicant submits that although technically she had the option of making an H & C application pursuant to section 114(2) of the Act, in fact, she could not do this because she could not come up with the $500 cost recovery fee required to submit the application. The only evidence with respect to lack of funds that the Applicant provides is the statement made by Jill Zelmanovits, a law student at PCLS, in which Ms. Zelmanovits says the following at paragraph 6 of her affidavit:

The applicant wanted to do this [apply for landing on H & C grounds] but as she is a 19 year old high school student and is not employed, she could not afford the $500 processing fee for the "humanitarian and compassionate " application. She spoke to friends and relatives in Canada but they were unable to assist her in raising this amount of money.13

[20]      This statement is obviously hearsay evidence. It is significant that the Applicant does not mention in her own affidavit that she was unable to bear the financial burden of the $500 H & C processing fee. I give no weight to the statement made by Ms. Zelmanovits concerning the Applicant"s ability to come up with the $500 for her H & C application. In any event, even if I had been prepared to accept Ms. Zelmanovits" evidence on this point, I would not have found such evidence sufficient. In view of this finding, I need not address the Applicant"s argument that the H & C remedy was not available to her.

[21]      In Razavi, supra, Madam Justice McGillis characterizes the legislative scheme pertaining to refugee claimants at page 40 of her decision:

[B]oth quasi-judicial and administrative relief is available: the Board conducts a refugee hearing in the exercise of its quasi-judicial functions, while an immigration officer makes a purely administrative decision on an unsuccessful refugee claimant"s deemed application for landing as a member of the PDRCC class or on an application for admission on humanitarian and compassionate grounds. In other words, the decisions which are administrative in nature are only made after an unsuccessful refugee claimant has had a full, quasi-judicial hearing before the Board.

[22]      McGillis J. goes on to explain at page 41 that, unlike the Appeal Board which was the court of record exercising quasi-judicial functions on the substantive question of the redetermination of a refugee claim, a PCDO makes a purely administrative decision and the "dictates of fundamental justice enshrined in s. 7 of the Charter did not require the PCDO to entertain the applicant"s request to extend the time limit prescribed in the Regulations prior to making his administrative decision on the deemed application. ((See also Ponnampalam v. Canada (Minister of Citizenship and Immigration) (1996), 117 F.T.R. 294 (T.D.))".

[23]      I agree entirely with the reasons given by Madame Justice McGillis in both Sunnappu and Razavi. Consequently, as the Applicant has not exhausted all her legislative avenues, she has failed to establish that her rights under s. 7 of the Charter have been breached. Further, the impugned decision is administrative in nature and, as such, not subject to Charter scrutiny.

[24]      Lastly, I wish to address the Applicant"s argument of the inadequacy of her counsel. The Applicant claimed that her lawyer, Mr. Gertler, did not inform her of either her ability to file her own PDRCC application or her time limitations for submitting a PDRCC application. In Huynh v. M.E.I.,¹⁴ among other complaints, the applicant submitted that counsel did not advise him of his right to seek judicial review. Mr. Justice Rothstein said the following, in response to this submission, at page 15:

It seems to me that in many cases unsuccessful litigants may wish to blame the result on the inadequacy of counsel. Where there is merit to such a claim, a client may be able to proceed against counsel and secure recovery. However in my opinion, the failure of counsel, freely chosen by a client, cannot, in any but the most extraordinary case, result in an overturning of a decision on appeal or judicial review.

[25]      In my view, the circumstances of this case, the age of the Applicant, her particular vulnerability without parents to guide her, and her reliance on friends, relatives and her lawyer for advice, make her an unusual and particularly sympathetic case. However, I do not believe that this is what Rothstein J. meant by an "extraordinary case" that would necessitate overturning the PCDO"s decision. Rothstein J. seems to be discussing inadequacy of counsel and the various levels of inadequacy and not the sympathetic attributes of the client. In my opinion, this is not an extraordinary case so as to justify the setting aside of the impugned decision.

[26]      The application for judicial review shall be dismissed. The parties have proposed that I certify the following questions. Firstly, the applicant submits that two questions should be certified:

Whether there is an inherent jurisdiction to extend a statutory time limitation when justice requires it and when the strict adherence to the time limitation results in the frustration of the legislative purpose.

Whether, the strict 15-day time limitation set out in section 11.4(2)(b) of the Immigration Regulations, for an application to seek a "risk assessment" under the PDRCC programme, after receiving notice of refusal of a refugee claim, violates section 7 of the Charter of Rights and Freedoms , as such a limitation, with no opportunity for an extension of time, is not in accordance with the principles of fundamental justice.

[27]      On the other hand, the respondent proposes the following questions:

Does the immigration officer processing an application made pursuant to the PDRCC regulations have the discretion to extend the time for filing the application if an applicant files an application after the 15 day period prescribed by section 11.4(2)(b) of the Immigration Regulations?

And if the answer to the first question is yes:

Does the refusal by the immigration officer processing the application made pursuant to the PDRCC regulations to extend the time for filing an application in accordance with the 15 day period prescribed by section 11.4(2)(b) of the Immigration Regulations violate the applicant"s rights under section 7 of the Charter of Rights and Freedoms ?

[28]      Since both Sunnappi and Razavi have been appealed but not yet decided, I will certify the two questions proposed by the applicant.

Ottawa, Ontario      "MARC NADON"

December 23, 1998      JUDGE

__________________

¹ Immigration Act, R.S.C. 1985, c. I-2.

² Applicant"s record page 208.

³ Immigration Regulations, 1978, SOR/78-172 s. 11.4(2)(b).

⁴ Affidavit of Ms. Jill Zelmanovits, page 17, paragraph 6 of Applicant"s Record.

⁵ Canadian Charter of Rights and Freedoms, 1982, s.7.

⁶ Immigration Regulations, 1978, SOR/78-172.

⁷ Wilbur-Ellis Co. of Canada Ltd. v. Deputy M.N.R., Customs and Excise (1995), 129 D.L.R. (4^th) 579, (1995), 189 N.R. 277.

⁸ Melinte v. Canada (M.C.I.) (1997), 134 F.T.R. 292.

⁹ Razavi v. M.C.I. (1998), 144 F.T.R. 36.

¹⁰ Sinnappu v. M.C.I. (1997), 126 F.T.R. 29.

¹¹ Regulatory Impact Analysis Statement, SOR/93-44, Canada Gazette, Part II, vol. 127, no. 3, p.655.

¹² Immigration Regulations 1978, SOR/78-172 subsection11.4(2).

¹³ Applicant"s Record page 17.

¹⁴ Huynh v. M.E.I., (1993), 65 F.T.R. 11.