Date: 20011010
Docket: A-260-00
Neutral citation: 2001 FCA 295
CORAM: RICHARD C.J.
DESJARDINS J.A.
DÉCARY J.A.
BETWEEN:
MULAKH SINGH LEALH
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Hearing held at Montréal, Quebec, on October 10, 2001.
Judgment delivered from the bench at Montréal, Quebec, on October 10, 2001.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
[1] This is an appeal from a decision of Mr. Justice Pinard of April 20, 2000, (Lealh v. Canada (2000), 188 F.T.R. 102 (F.C.T.D.), in which he dismissed the application for judicial review brought by the appellant. The application related to a decision by a reviewing officer holding that the appellant cannot be considered a member of the Post-Determination Refugee Claimants in Canada ("PDRCC") class on the ground that he failed to submit his application within the time prescribed by paragraph 11.4(2)(b) of the Immigration Regulations, 1978 (the "Regulations").
[2] Pinard J. certified the following question:
Is paragraph 11.4(2)(b) of the Immigration Regulations, 1978, beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Immigration Act (the Act) confers on the Governor in Council, in that it prescribes the time for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class for the purposes of subsection 6(5) of the Act?
[3] Mr. Justice Pinard dismissed the application for judicial review relying mainly on the reasons he gave in Bensalah v. Minister of Citizenship and Immigration, Ottawa IMM-4907-98 (T.D.) and Gill (N.P.) v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 183 (T.D.). In those decisions, Pinard J. had concluded that paragraph 114(1)(e) of the Act did in fact give the Governor in Council authority to prescribe the time allowed under paragraph 11.4(2)(b) of the Regulations, and that the regulatory provision was therefore intra vires (the decisions in Bensalah and Gill were appealed to the Court of Appeal (A-522-99 and A-523-99) but were dismissed on March 10, 2000, for undue delay in continuing the proceeding.).
[4] He then analyzed the general principles stated by this Court in Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595 (C.A.) in order to determine whether the authority to make the regulation in question is granted by the enabling legislation. His conclusion was that "the Regulations in question are a departure from the norm by operation of subsection 6(5) of the Act" and that the power to establish the procedure for considering applications for a determination of membership of a class therefore includes the power to prescribe the time limit within which to submit such an application.
[5] He also concluded that it is necessary to prescribe a time limit in order to ensure the proper administration of the Act and that this time limit is reasonable.
[6] We are in agreement with the conclusion of Pinard J.
[7] The Court notes that counsel for the appellant acknowledged at the hearing that the decision of Pinard J. was correct.
[8] The question certified will be answered in the negative and the appeal will be dismissed.
" J. Richard"
Chief Justice
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF APPEAL
Date: 20011010
Docket: A-260-00
Between:
MULAKH SINGH LEALH
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-260-00
Appeal from a judgment of the Trial Division dated on April 20, 2000. Court File No.: IMM-2023-99
CORAM: RICHARD C.J.
DESJARDINS J.A.
DÉCARY J.A.
STYLE OF CAUSE:
MULAKH SINGH LEALH
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 10, 2001
REASONS FOR JUDGMENT OF
THE COURT BY: THE HONOURABLE CHIEF JUSTICE RICHARD
DATED: October 10, 2001
APPEARANCES:
|
Jean-François Bertrand
|
For the Appellant
|
|
Claude Provencher
|
For the Respondent
|
SOLICITORS OF RECORD:
|
Bertrand, Deslauriers
Montréal, Quebec
|
For the Appellant
|
|
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec
|
For the Respondent
|
Date: 20011010
Docket: A-260-00
Montréal, Quebec, October 10, 2001
CORAM: RICHARD C.J.
DESJARDINS J.A.
DÉCARY J.A.
BETWEEN:
MULAKH SINGH LEALH
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT
The following question is answered in the negative
Is paragraph 11.4(2)(b) of the Immigration Regulations, 1978, beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Immigration Act confers on the Governor in Council, in that it prescribes the time for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class for the purposes of subsection 6(5) of the Act?
and the appeal is dismissed.
" J. Richard"
Chief Justice
Certified true translation
Sophie Debbané, LL.B.
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