Date: 19980826
Docket: IMM-4411-97
BETWEEN:
MOHAMED ABDI HERSI
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of an Immigration Officer set out in a facsimile transmission to counsel for the applicant and apparently transmitted on the 6th of October, 1997 to the following effect:
| I have considered your request to count the date of the PDRCC application as the date of submission of the DROC application. This cannot be done because the applications were submitted for different purposes to different locations and are not interchangeable.1 |
[2] The facts giving rise to this application for judicial review are essentially not in dispute. They can be summarized as follows. The applicant is a failed Convention refugee claimant. At all relevant times, he was a member of the Deferred Removal Orders Class (DROC), as that class was, at all relevant times, defined in the Immigration Regulations, 19782.
[3] In November of 1996, the applicant applied for permanent residence from within Canada by submitting an application form entitled "In-Canada Application For Landing", Immigration form 5001. Form 5001 was apparently the standard generic form used for in-Canada applications for landing. At the top of the form under the heading "A-TYPE OF APPLICATION (Check 1)", the applicant indicated that he was applying as a "humanitarian and compassionate case" and as a "Post-Determination Refugee Claimant in Canada". Two points are worthy of note: first, despite the instruction to "Check 1", the applicant applied in two categories; second, there is no place on the face of this portion of the form to indicate that the application is as a member of the Deferred Removal Orders Class3.
[4] Section 11.401 of the Immigration Regulations, 1978 set out a number of landing requirements for persons, and their dependants, who were members of the Deferred Removal Orders Class. First among those requirements was that the member had to submit an application for landing to an Immigration Officer within 120 days after becoming a member of the Deferred Removal Orders Class. On the plain meaning of the words of the forgoing requirement, the applicant fulfilled the requirement. Within the relevant 120 day period, the applicant submitted an application for landing (from within Canada) to an Immigration Officer. The fact that the application for landing from within Canada was not as a member of the Deferred Removal Orders Class but rather as a humanitarian and compassionate case and a Post-Determination refugee claimant is irrelevant for the purposes of the requirement. The bureaucratic reasoning in support of the decision under review, and, for ease of reference, I quote again from that decision:
| This cannot be done because the applications were submitted for different purposes to different locations and are not interchangeable. |
is quite irrelevant.
[5] To reiterate, the applicant submitted to an Immigration Officer an application for landing within 120 days after becoming a member of the Deferred Removal Orders Class. It was not incumbent on the respondent, on receipt of that application, to process it under the Deferred Removal Orders Class. But once the applicant requested that his application for landing be processed as a member of that class, as the applicant did in March of 1997, it immediately became incumbent on the respondent to comply with that request.
[6] I am conscious of the fact that my conclusion in this matter is contrary to that of my colleague, Mr. Justice Dubé, in Singh (Gurmail) v. Canada (Minister of Citizenship and Immigration)4. With great respect, I feel compelled to differ from the decision of my colleague. Here, the applicant complied with the strict terms of the only requirement at issue, as reflected in the Immigration Regulations, 1978, as amended. In such circumstances, I am satisfied that the clear and unequivocal meaning of the Regulation should prevail over an interpretation that would alleviate an administrative burden on the respondent's officials but that is not consistent with the clear meaning of the words of the Regulation.
[7] For the forgoing reasons, this application for judicial review will be allowed. The decision under review will be set aside and the matter referred back to the respondent for redetermination in a manner not inconsistent with these reasons.
"Frederick E. Gibson"
Judge
Toronto, Ontario
August 26, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4411-97
| STYLE OF CAUSE: MOHAMED ABDI HERSI |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, AUGUST 25, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON, J.
DATED: WEDNESDAY, AUGUST 26, 1998
APPEARANCES:
Mr. Arthur Weinreb
For the Applicant
Ms. Sudabeh Mashkori
For the Respondent
SOLICITORS OF RECORD: Arthur Weinreb
| Barrister & Solicitor |
| 44 Woodrow Avenue |
| Toronto, Ontario |
| M4C 5S2 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980826
Docket: IMM-4411-97
Between:
| MOHAMED ABDI HERSI |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 PDRCC is a reference to Post-Determination Refugee Claimant in Canada; DROC is a reference to Deferred Removal Orders Class.
3 What appears to be a later version of form IMM5001 does include an option to indicate that the applicant is applying as a member of the Deferred Removal Orders Class. In March of 1997, the applicant filed a separate application for landing from within Canada as a member of the Deferred Removal Orders Class. In June of 1997, the later application was rejected because it was filed out of time. Counsel for the applicant requested a further review of the application for landing from within Canada as a member of the Deferred Removal Orders Class on the basis that the November, 1996 application for landing from within Canada was filed "in time", that is to say within 120 days after the applicant became a member of the Deferred Removal Orders Class. It is this last request that resulted in the decision here under review.