Alexis v. Canada (Minister of Citizenship and Immigration), docket IMM-1963-96

IMM-1963-96

BETWEEN:

GLENA ALEXIS

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

JEROME, A.C.J.:

     This judicial review of the decision of an immigration officer to schedule the removal of the applicant from Canada came on for hearing before me at Toronto, Ontario, on June 10, 1997. At the close of oral argument I took the matter under reserve and indicated that written reasons would follow.

     The applicant entered Canada as a visitor in March, 1992, and soon thereafter made a claim for Convention Refugee status. The Convention Refugee Determination Division of the Immigration and Refugee Board heard her claim in August, 1993, and issued a decision on September 10, 1993, which found that the applicant was not a refugee and that there was no credible basis to her claim. By letter dated May 28, 1996, an immigration officer informed the applicant that her removal from Canada had been arranged for June 21, 1996. Following a failed attempt to stay her removal, her departure was rescheduled for June 28, 1996.

     Counsel for the applicant has brought this judicial review on the grounds that the removal order should not have been issued because the applicant was three months away from becoming eligible for the Deferred Removal Orders Class ("DROC") of immigrants, that the Ministry of Citizenship and Immigration created an expectation interest when it published a document describing eligibility for this class, and finally that the immigration officer's decision violated the principles of procedural fairness in that it was made without granting the applicant a pre-removal interview.

     The Immigration Regulations, 1978, as amended, describe eligibility for DROC as follows:

"member of the deferred removal orders class" means an immigrant

(a) who is subject to a removal order, or to a conditional departure notice, departure notice or conditional removal order within the meaning of subsection 2(1) of the Act as that subsection read immediately before February 1, 1993,

(b) who, on or after January 1, 1989, made a claim to be a Convention refugee and is not a person who was not eligible, under section 46.01 of the Act or under section 46.01 of the Act as that section read immediately before February 1, 1993, to have the claim determined by the Refugee Division,

(c) who has been determined by the Refugee Division not to be a Convention refugee or who has been determined not to have a credible basis for the claim by an adjudicator and a member of the Refugee Division at a hearing held pursuant to subsection 44(3) of the Act as that subsection read immediately before February 1, 1993,

(d) who, on or after July 7, 1994,

(i) has filed with the Federal Court"Trial Division an application for leave to commence an application for judicial review of, or has appealed to the Federal Court of Appeal, to the Supreme Court or to a provincial court, any decision or order made, any measure taken or any matter raised under the Act or any regulations or order made thereunder, where a period of not less than three years has elapsed since the latest of

(A) the making or issuance of any order or notice referred to in paragraph (a),

(B) the most recent determination referred to in paragraph (c),

(C) the cessation of any judicial stay of execution of the removal order referred to in paragraph (a) or any statutory stay of execution of that removal order, and

(D) the expiration or withdrawal of any undertaking given by the Minister or the Government of Canada not to remove the immigrant from Canada, or

(ii) has not filed any application or made any appeal referred to in subparagraph (i), where a period of not less than three years has elapsed since the latest of

(A) the making or issuance of any order or notice referred to in paragraph (a),

(B) the most recent determination referred to in paragraph (c),

(C) the expiration or withdrawal of any undertaking given by the Minister or the Government of Canada not to remove the immigrant from Canada,

(D) the cessation of a stay of execution of the removal order referred to in paragraph (a) under paragraph 49(1)(b) or section 73 of the Act, and

(E) the expiration of the period during which the removal order referred to in paragraph (a) could not be executed under section 50 of the Act,

(e) who, where the immigrant is the subject of a determination referred to in paragraph (c) made on or after July 7, 1994, has, for the purpose of establishing that the immigrant can be removed to the country of which the immigrant is a national or a citizen, the country of the immigrant's birth, the country in which the immigrant last permanently resided before coming to Canada, the country from which the immigrant came to Canada or any other country, provided documentation within ninety days following the latest of

(i) November 7, 1994,

(ii) the most recent determination referred to in paragraph (c),

(iii) the cessation of any judicial stay of execution of the removal order referred to in paragraph (a) or any statutory stay of execution of that removal order,

(iv) the expiration or withdrawal of any undertaking given by the Minister or the Government of Canada not to remove the immigrant from Canada,

(v) the cessation of a stay of execution of the removal order referred to in paragraph (a) under paragraph 49(1)(b) or section 73 of the Act, and

(vi) the expiration of the period during which the removal order referred to in paragraph (a) could not be executed under section 50 of the Act,

(f) who, where the immigrant is subject to an exclusion order or a deportation order, has not hindered or delayed its execution, including failing to present himself or herself for a pre-removal interview or for removal in accordance with removal arrangements made by an immigration officer,

(g) who, where the immigrant is the subject of a removal order or a conditional removal order made on or after July 7, 1994, has complied with a term or condition imposed under subsection 103(3) or (3.1) of the Act requiring the immigrant to notify an immigration officer of any change of the immigrant's address,

(h) who is not and whose dependants in Canada are not persons described in any of paragraphs 19(1)(c) to (g) and (i) to (l) and (2)(a) to (b) of the Act, and

(i) who has not, and whose dependants in Canada have not, been convicted of an offence referred to in subparagraph 27(1)(a.1)(i) or paragraph 27(1)(d) or (2)(d) of the Act;

The Ministry of Citizenship and Immigration has published a document (IMM-9999E (12-95)) to explain these regulations to prospective applicants. It explains that the regulations have been established,

on an exceptional basis, as a means of accepting as permanent residents certain failed refugee claimants who have not been removed from Canada over several years.

                                     [emphasis added]

The "exceptional" nature of the regulations has been commented on in a number of cases before this Court. In Darmantchev v. Canada (Minister of Citizenship and Immigration), (1995) 103 F.T.R. 24, Mr. Justice Wetston determined that individuals are not entitled to become members of the DROC but that they must be accepted as such following a selection process:

It is my opinion that, in this case, there is no duty, express or implied, that arises from the scheme of the Immigration Act and its regulations. Section 48 of the Immigration Act requires that a removal order be executed as soon as reasonably practicable. The purpose of the DROC regulations is not to confer a substantive right or benefit on certain failed refugee claimants, rather, it is to provide the Minister with an improved and more effective method of resolving cases of certain failed refugee claimants who have not been removed over several years. By virtue of section 48 of the Immigration Act, the Minister is under a legal obligation to remove.

Thus, it is clear that the regulations do not create an automatic right for failed refugee claimants to become members of the DROC.

     Mr. Justice MacKay in Alexander v. Canada (Minister of Citizenship and Immigration) (August 14, 1996), IMM-3127-95, dismissed a similar motion where the applicants had three months to go before becoming eligible for consideration under the DROC regulations. He cited Darmantchev and continued:

The applicants here do not have a right to remain in Canada simply because they are close to qualifying under the DROC regulations. Those regulations provide that a person is eligible to be a member of the DROC only where he or she meets certain criteria, including the requirement that an applicant reside in Canada for three years following refusal of his or her refugee claim. The applicants here do not comply with that criterion and cannot, therefore, be said to have any right to remain in Canada through the application of those regulations, or any others. Nor, as noted above, have the applicants here demonstrated any unfairness in the process here followed. Although the applicants argue it is unfair to remove them at a time when they are close to becoming eligible for the DROC, I am bound by the requirements of the DROC regulations adopted in accord with the statute as enacted by Parliament. The determination of the length of time necessary to reside in Canada to qualify as a member of the DROC class is a matter established by the legislative process and not one for this Court. Thus, since the applicants admittedly have not met the requirement of the DROC regulations, there is no basis on which this Court could intervene in regard to the decision not to cancel or to defer their removal.

Mr. Justice MacKay not only adopted the approach outlined in Darmantchev, but he applied it to a fact situation very similar to that which we find in the case at bar. I am confident that the above dispositions are accurate interpretations of the law and I see no reason to depart from that reasoning. The immigration officer did not commit a reviewable error when she issued the removal order three months before the applicant may have become eligible to apply for consideration as a member of the DROC.

     Counsel for the applicant further submitted that the Minister had created an expectation interest in the applicant by publishing the document referred to above which informs potential applicants of the existence and benefits associated with the DROC. I have already found that the regulations do not create a substantive right to be considered a member of the DROC and I cannot see how an expectation interest could be created either. Mr. Justice MacKay came to a similar conclusion in Alexander:

In my opinion, the applicants cannot rely on the doctrine of legitimate expectation. In Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, the Supreme Court stated that the doctrine of legitimate expectation cannot create substantive rights. Thus, there is no basis here on which the applicants could assert a substantive right not to be removed from Canada on the basis of the doctrine of legitimate expectation.

As a result, the applicant must fail on this ground as well.

     Finally, it was submitted that the immigration officer breached the principles of procedural fairness by not conducting a pre-removal interview with the applicant prior to issuing the removal order. Counsel for the applicant did not cite any authority to support this argument and I cannot find any reason to overturn the well-established principle that procedural fairness is not a guarantee of specific procedural entitlements.

     This motion for judicial review is dismissed for the reasons outlined above.

O T T A W A

September 17, 1997                      "James A. Jerome"

                             A.C.J.