Date: 20100629
Docket: IMM-6202-09
Citation:
2010 FC 705
Ottawa, Ontario, June 29,
2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
NORA
MARINA GUEVARA VILLATORO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
This is an application for judicial review of a decision by
the Immigration Appeal Division of the Immigration and Refugee Board, bearing
the number MA8-01194, and dated June 15, 2009; the application was filed
under sections 72 and following of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), by Nora Marina Guevara Villatoro (the
applicant). This judgment is issued by the undersigned as ex officio
judge of the Federal Court as provided for in subsection 5.1(4) of the Federal
Courts Act, R.S.C. (1985), c. F-7.
[2]
The application for judicial review will be dismissed for
non-observance of time limits.
Facts
and proceedings
[3]
The applicant, a citizen of Honduras, was born on April 24, 1964. She has several children from three
different relationships. From her first relationship, she has an adult son who
lives in Montréal. From her second relationship, she has seven children who
live with their paternal grandmother in Honduras. And from her third relationship, she has three minor children, all of
whom were born in Canada and
are Canadian citizens.
[4]
The applicant arrived in Canada in 1995 with her third spouse. Her spouse’s claim for refugee protection
was accepted, and as a result of this she was able to obtain permanent resident
status in Canada.
[5]
However, she left Canada in 2001 in order to stay in the United States for a few years so that, according to her, she could undergo treatment
for cancer and join her spouse, who had found work there. However, the
conjugal relationship with her third spouse began to deteriorate and, in 2003,
the applicant decided to return to Honduras via Mexico.
[6]
In 2006, the applicant applied for travel documents from
the Canadian embassy in Guatemala, which also served Honduras at the time. This application was refused and the refusal was not
contested.
[7]
The applicant then resided in Mexico from September 2006
until June 2007 and tried unsuccessfully to get into the United States. She returned to Honduras in June 2007.
[8]
On December 19, 2007, she went to the Canadian embassy in Honduras in order to submit a new application for travel documents
as a permanent resident of Canada. This application was again refused in a letter dated January 14, 2008,
chiefly on the ground that the applicant had not met the residency obligation
set out in section 28 of the Act; more specifically, she had not been
physically present in Canada for at least 730 days during the five-year period
immediately before the examination. She was therefore refused travel documents
once again pursuant to subsection 31(3) of the Act.
[9]
On January 25, 2008, the applicant brought an appeal before
the Immigration Appeal Division of the Immigration and Refugee Board, as she
was entitled to do under subsection 64(4) of the Act. This appeal was dismissed
in a decision dated June 15, 2009, the reasons for which were sent on July 13,
2009. On December 7, 2009 the applicant filed an application for leave and judicial
review of that decision.
[10]
It should be noted that the applicant entered Canada in December 2009 and has been living here ever since. The
circumstances under which she was able to enter Canada have not been made clear to the Court. It should also be noted that a
proceeding to revoke status as a refugee or a person in need of protection has
recently been undertaken against her, although no formal decision has been made
in that regard.
The Immigration Appeal Division’s decision
[11]
The hearing of the appeal brought by the applicant was held
before the Immigration Appeal Division on June 15, 2009. The applicant was
represented by counsel and participated via teleconference with the help of an
interpreter.
[12]
The applicant is not challenging the legality of the
decision that found she had not met the residency obligation imposed under
section 28 of the Act. Humanitarian and compassionate considerations
constitute the sole ground in her appeal; thus, she is exercising the recourse
available to her under paragraph 67(1)(c) of the Act.
[13]
The Immigration Appeal Division found the applicant’s
testimony to be ‘‘more or less credible’’ (at paragraph 4 of the decision). It
found that the applicant’s degree of establishment in Canada was low, that she
had left Canada many years ago, and that the
best interests of the children called for the presence of their parents and
their extended family in Honduras. It gave little weight to the applicant’s allegations about a recent
attempted kidnapping of her children.
The request for an extension of time and the objection with regard to the
late filing of the application
[14]
On December 7, 2009, the applicant filed an application for
leave and judicial review of that decision on several grounds, including the
failure to adhere to the rules of natural justice and procedural fairness, and errors
in fact and law.
[15]
In that application, the applicant requested for an
extension of time under paragraph 72(2)(c) of the Act. The grounds she
raised with regard to this in her application are as follows:
[translation]
The applicant received
the administrative tribunal’s written reasons on or about December 5, 2009,
upon her arrival in Canada.
Given the
circumstances, the applicant is also requesting that the Court grant an
extension of time, under paragraph 72(2)(c) of the Immigration and
Refugee Protection Act, for the following reason:
‘‘Reason… ‘‘The
applicant was heard by the Immigration Appeal Division via teleconference on
June 15, 2009. When the decision was rendered later that day, the applicant was
no longer in contact by telephone and did not hear the issuing of the decision.
The written decision was sent to a relative who forwarded it to Honduras shortly
thereafter. However, when it arrived in Honduras, the applicant and her 3
children had already left Honduras for Canada, so it was only on or about December 5, 2009,
after she arrived in Canada, that the applicant became aware of the terms of the
negative decision refusing to grant her permanent residence.
It was only when she
became aware of these terms that the applicant consulted counsel on December 6,
2009, and filed this application that very same day considering that it was at
that time that the applicant became aware that the panel had not refuted the
alleged attempted kidnapping of her daughter, born in Canada, nor had it
denied that there may be some risk in Honduras, but had nevertheless found that
‘‘the best interests of the children dictate that they have the benefit of the
presence of both of their parents, of which they can be assured in Honduras’’.
[16]
During the arguments on the issue of the application for
leave, the respondent argued that the applicant had failed to file her
application for leave and judicial review within the prescribed time limits,
and in this regard, cited paragraphs 72(2)(b) and 169(f) of the
Act as well as sections 13 and 36 of the Immigration Appeal Division Rules,
SOR/2002-230. According to the respondent, the applicant failed to show that
the reason for her delay was beyond her control as she was required to do and
that, in this case, her request for an extension of time should be dismissed.
[17]
As part of the arguments with regard to the issue of the
application for leave, the applicant responded to these arguments and requested
that the issue of the extension of time, which, according to her, raises
several issues of law, be examined at the judicial review stage rather than at
the stage of the application for leave and judicial review.
[18]
On March 24, 2010, Justice
Shore granted leave for the
application for judicial review, and, as requested by the applicant, did not
address the issue of the extension of time.
Relevant statutory
provisions with regard to the extension of time and the objection to the late
filing of the application
[19]
The relevant excerpts from the Act are sections 72 and 169,
which read 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.
(2) The following
provisions govern an application under subsection (1):
(a) the
application may not be made until any right of appeal that may be provided by
this Act is exhausted;
(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;
(c) a judge
of the Court may, for special reasons, allow an extended time for filing and
serving the application or notice;
(d) a judge
of the Court shall dispose of the application without delay and in a summary
way and, unless a judge of the Court directs otherwise, without personal
appearance; and
(e) no appeal
lies from the decision of the Court with respect to the application or with
respect to an interlocutory judgment.
169. In the
case of a decision of a Division, other than an interlocutory decision:
(a) the
decision takes effect in accordance with the rules;
(b) reasons
for the decision must be given;
(c) the
decision may be rendered orally or in writing, except a decision of the
Refugee Appeal Division, which must be rendered in writing;
(d) if the
Refugee Protection Division rejects a claim, written reasons must be provided
to the claimant and the Minister;
(e) if the
person who is the subject of proceedings before the Board or the Minister
requests reasons for a decision within 10 days of notification of the
decision, or in circumstances set out in the rules of the Board, the Division
must provide written reasons; and
(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
|
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 subordonné
au dépôt d’une demande d’autorisation.
(2) Les dispositions
suivantes s’appliquent à la demande d’autorisation :
a) elle ne
peut être présentée tant que les voies d’appel ne sont pas épuisées;
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;
c) le
délai peut toutefois être prorogé, pour motifs valables, par un juge de la
Cour;
d) il est
statué sur la demande à bref délai et selon la procédure sommaire et, sauf
autorisation d’un juge de la Cour, sans comparution en personne;
e) le
jugement sur la demande et toute décision interlocutoire ne sont pas
susceptibles d’appel.
169. Les
dispositions qui suivent s’appliquent aux décisions, autres
qu’interlocutoires, des
sections :
a) elles
prennent effet conformément aux règles;
b) elles
sont motivées;
c) elles
sont rendues oralement ou par écrit, celles de la Section d’appel des
réfugiés devant toutefois être rendues par écrit;
d) le
rejet de la demande d’asile par la Section de la protection des réfugiés est
motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e) les
motifs écrits sont transmis à la personne en cause et au ministre sur demande
faite dans les dix jours suivant la notification ou dans les cas prévus par
les règles de la Commission;
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.
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[20]
The relevant excerpts from the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22 are found in section 6:
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6. (1) A
request for an extension of time referred to in paragraph 72(2)(c) of
the Act shall be made in the application for leave in accordance with Form
IR-1 set out in the schedule.
(2) A request for an
extension of time shall be determined at the same time, and on the same
materials, as the application for leave.
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6. (1) Toute
demande visant la prorogation du délai au titre de l’alinéa 72(2)c) de
la Loi, se fait dans la demande d’autorisation même, selon la
formule IR-1 figurant à l’annexe.
(2) Il est statué
sur la demande de prorogation de délai en même temps que la demande
d’autorisation et à la lumière des mêmes documents versés au dossier.
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[21]
Finally, the relevant excerpts from the Immigration
Appeal Division Rules are sections 13 and 53, subsection 54(1) and section
55:
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13. (1) A
person who is the subject of an appeal must provide their contact information
in writing to the Division and the Minister.
(2) The contact information
must be received by the Division and the Minister
(a) with the
notice of appeal, if the person is the appellant; and
(b) no later
than 20 days after the person received a notice of appeal, if the Minister is
the appellant.
(3) A person who is
represented by counsel must, on obtaining counsel, provide without delay the
counsel’s contact information in writing to the Division and the Minister.
(4) If the contact
information of the person or their counsel changes, the person must without
delay provide the changes in writing to the Division and the Minister.
53. When the
Division makes a decision, other than an interlocutory decision, it must
provide a notice of decision to the parties.
54. (1) The
Division must provide to the parties, together with the notice of decision,
written reasons for a decision on an appeal by a sponsor or for a decision
that stays a removal order.
55. A
decision of the Division made orally by one Division member at a proceeding
takes effect when the member states the decision. A decision made in writing
takes effect when the member signs and dates the decision.
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13. (1) La
personne en cause transmet ses coordonnées par écrit à la Section et au
ministre.
(2) Les coordonnées
doivent être reçues par la Section et le ministre :
a) avec
l’avis d’appel, dans le cas où c’est la personne en cause qui interjette
appel;
b) au plus
tard vingt jours suivant la date à laquelle la personne reçoit l’avis d’appel
du ministre, dans le cas où c’est le ministre qui interjette appel.
(3) Dès qu’elle
retient les services d’un conseil, la personne en cause transmet les
coordonnées de celui-ci par écrit à la Section et au ministre.
(4) Dès que les
coordonnées de la personne en cause ou celles de son conseil, le cas échéant,
changent, la personne en cause transmet les nouvelles coordonnées par écrit à
la Section et au ministre.
53. Lorsqu’elle
rend une décision autre qu’interlocutoire, la Section transmet par écrit un
avis de décision aux parties.
54. (1) La
Section transmet aux parties, avec l’avis de décision, les motifs écrits de
la décision portant sur un appel interjeté par un répondant ou prononçant le
sursis d’une mesure de renvoi.
55. La
décision de la Section rendue de vive voix à l’audience par un tribunal
constitué d’un commissaire unique prend effet au moment où le commissaire
prononce la décision. Celle rendue par écrit prend effet au moment où le commissaire
signe et date la décision.
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Analysis of the issue
of the request for an extension of time and the objection with regard to the
late filing of the application
[22]
Subsection 6(2) of the Federal Courts Immigration and
Refugee Protection 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. The first issue in the case at bar is therefore jurisdictional,
i.e. whether the judge hearing the application for judicial review has the
jurisdiction to decide whether or not to grant an extension of time when the
issue was not decided at the application for leave stage.
[23]
The Federal Court of Appeal recently issued a favourable
response with regard to this matter in Deng Estate v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 59, [2009] F.C.J. No.
243 (QL), at paragraphs 17 and 18 (application for leave to appeal to the
Supreme Court of Canada dismissed on July 9, 2009, Number 33142). According to
this precedent, I therefore do have the jurisdiction to decide the issue of
whether to grant an extension of time.
[24]
Paragraph 169(f) of the Act, reproduced above,
specifically provides that the period in which to apply for judicial review with
respect to a decision of one of the divisions of the Immigration and Refugee
Board is calculated from the sending of written reasons. Moreover, under
paragraph 72(2)(b) of the Act, the period of 15 or 60 days in which to
file an application for leave is not calculated from the date the applicant is
notified of or otherwise becomes aware of the decision in the case of a
decision of a division of the Immigration and Refugee Board; in fact, it
specifically provides that the manner in which the period should be calculated
is ‘‘subject to paragraph 169(f)’’.
[25]
In the case at bar, with regard to the decision at issue,
under paragraph 169(f) of the Act, the period for serving and filing the
application for leave and judicial review began as of the sending of the
reasons for the decision, namely, as of July 13, 2009.
[26]
For the purposes of this proceeding, the Court is not
called upon to determine whether the applicable period in this case is 15 days,
given that the decision was issued in Canada, or 60 days, given that the matter that gave rise to the appeal before
the Immigration Appeal Division arose in Honduras. The fact remains that, in either case, the applicant has long been out
of time.
[27]
Several factors may justify allowing an extension of time,
but the party seeking the extension must first be able to justify the delay
incurred for the entire period in question.
[28]
Therefore, I have to determine whether the applicant has
justified her failure to observe the time limits or whether she has
demonstrated valid reasons that would justify granting an extension of time.
The principal ground invoked by the applicant in support of her request for an
extension of time is that she was not aware of the content of the decision
before her arrival in Canada and was therefore unable to act sooner.
[29]
It is clear from the transcript of the hearing before the Immigration
Appeal Division on June 15, 2009, that the decision regarding the applicant was
rendered that same day with the reasons issued at the hearing in the presence
of her counsel, who participated in the proceeding in person, and the applicant
herself, who participated via teleconference. While an interpreter was present
at the hearing, the reasons given by the panel were not simultaneously
translated into Spanish. Rather, it was the applicant’s counsel who undertook
to explain the reasons to his client over the telephone.
[30]
The written decision was sent by the Immigration Appeal
Division on July 13, 2009, by prepaid regular mail in three copies.
[31]
The first copy was sent to the applicant at the address in Honduras she had indicated in the form provided for this purpose by
the Immigration Appeal Division, which she had completed and signed.
[32]
The second copy was sent to the applicant, but was sent ‘‘care
of’’ Thomas Armando Guevara Villatoro in Montréal. This was the person in Canada who had been specifically designated by the applicant in
writing in her notice of appeal form as being the person through whom she could
be reached.
[33]
The third copy was sent to the lawyer who had also been
specifically designated by the applicant, in writing, to receive a copy.
[34]
Despite these mailings, the applicant states in her affidavit
that she left Honduras on July 30, 2009, without having received the
written decision, and that it was only upon her arrival in Canada on December
5, 2009, that she was able to learn about the decision and to take note of the
reviewable errors made by the Immigration Appeal Division with regard to her
file. There were no details provided in her affidavit regarding her comings and
goings during the period of nearly five months between July and December 2009,
or about her correspondence with her lawyer or with the person she had
designated in Canada. Furthermore, the applicant
does not deny having been informed of the decision at issue, but is instead
simply claiming that she did not personally receive the written reasons during
that five-month period.
[35]
It is completely implausible that the applicant was not
aware of the content of the Immigration Appeal Division’s decision prior to
December 6, 2009, for many reasons.
[36]
First, the applicant was in contact with the panel by
telephone when the decision was made. Second, she was represented by counsel,
and he took it upon himself to relay the reasons for the decision to her by
telephone. Third, the written decision was sent both to her lawyer and to the
person in Canada who had been designated by
the applicant as someone through whom she could be reached. Finally, the
applicant was able to argue her appeal before the Immigration Appeal Division
from Honduras without suffering undue
hardship. She even retained the services of a lawyer for this purpose and received
the notices from that Appeal Division; thus, she was able to have her appeal
heard and participate in the hearing.
[37]
In light of these facts, one can only conclude that the
applicant could have filed an application for leave and judicial review of that
decision in the days following the date on which it was rendered, or in the
days following the sending of the reasons. The applicant had been able conduct
her appeal from Honduras, and there is no serious reason to believe that she
could not have done the same with regard to the judicial review of the decision
resulting from that appeal.
[38]
The extension of time is therefore not granted.
Consequently, the application for judicial review is dismissed.
[39]
The respondent did not raise any question for certification
pursuant to paragraph 74(d) of the Act. The applicant asked the Court to
provide her with the opportunity to prepare questions on the substance of the
proceedings. However, given that in this case I have not examined any
substantive questions, and given that no serious question of general importance
arises from the request for an extension of time, no question will be certified
pursuant to paragraph 74(d) of the Act.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
The request for an extension
of time within which to serve and file the application
for leave and judicial review is dismissed; accordingly, the application for
judicial review is dismissed.
‘‘Robert
M. Mainville’’
Certified true
translation
Sebastian Desbarats,
Translator
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