IMM-3655-96
B E T W E E N:
IOAN MELINTE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review of a decision of an immigration officer 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. The decision is dated the 19th of September, 1996.
It was not argued before me that the decision was wrong. Rather, it was argued that the Applicant was entitled to relief because the late filing of his DROC application arose directly out of advice provided by an official in the Respondent's Ministry to a Member of Parliament who had been approached by the Applicant for assistance in determining when he should file his application. The Member of Parliament provided that assistance and the Applicant relied to his detriment on the advice provided throught the Member of Parliament.
The relevant portion of section 11.401 of the Immigration Regulations, 19781 reads as follows:
| 11.401 A member of the deferred removal orders class and the member's dependants, if any, are subject to the following landing requirements: |
| (a) the member must submit an application for landing to an immigration officer within 120 days after becoming a member of the deferred removal orders class; |
| ... |
Counsel for the Applicant conceded before me that she is aware of no provision in the Immigration Act2 or Regulations that confers jurisdiction on an immigration officer to extend the time provided by paragraph 11.401 (a). Rather, counsel urged that this matter was essentially on all fours with Mumin v. Canada (Minister of Citizenship and Immigration)3 where Associate Chief Justice Jerome wrote:
| The respondent's only answer to Mr. Mumin's argument is that the Immigration Officer was within his right to rely on the strict provisions of the Immigration Act and the regulations. However, it is now recognized that in cases of this nature, a public authority abuses its discretionary power when it exercises it in a manner which causes an injustice to the individual while at the same time providing no benefit to the public. The courts are entitled, under circumstances such as these, to weigh the harm to the applicant against the public interest. There is nothing to be gained here and no benefit to the public is to be served by compelling the applicant to bear the consequences of the erroneous and incomplete information given to him by the respondent and upon which he honestly relied to his detriment. |
With regret, I conclude that I must distinguish this matter from Mumin. The key words in the foregoing quotation are, in my view, "discretionary power". Here, the immigration officer did not use or abuse a discretionary power. Rather, she or he 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.
By contrast, I am satisfied that what the Applicant is here seeking is application of the doctrine of legitimate expectation to relieve the Applicant from the burden arising from erroneous information provided by an official in the Respondent's Ministry on which he honestly relied to his detriment.
The doctrine of legitimate expectation cannot create a substantive right, only a procedural one, and the right sought here, relief from a statutory provision, is substantive, not procedural.4
In the result, this application for judicial review will be dismissed.
Counsel for the Applicant urged that I certify a question in the following terms:
| "Does the immigration officer processing an application made pursuant to the DROC regulations have the discretion to extend the time for filing the application, either pursuant to the principles of natural justice or fundamental justice, if an applicant files an application after the 120 day period prescribed by the regulations in reliance on erroneous advice provided to the applicant through a Member of Parliament by an official in the Ministry of Citizenship of Immigration? |
A very similar question, absent the element of reliance on officially provided advice, was certified in Ponnampalam v. Canada (Minister of Citizenship and Immigration)5. Counsel for the Respondent advised me that that decision is under appeal and in the circumstances she did not take exception in principle to certification of the question proposed. I will certify the question proposed.
"Frederick E. Gibson"
Judge
Toronto, Ontario
July 17, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3655-96
STYLE OF CAUSE: IOAN MELINTE
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JULY 16, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: JULY 17, 1997
APPEARANCES:
Ms. Helen Turner
For the Applicant
Ms. Leena Jaakkimainen
For the Respondent
SOLICITORS OF RECORD:
Helen Turner
Barrister and Solicitor
80 Richmond Street West
Suite 1505
Toronto, Ontario
M5H 2A4
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-3655-96
Between:
IOAN MELINTE
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 S.O.R./78-172
2 R.S.C., 1985, c. I-2
3 (1996), 35 Imm. L.R. (2d) 217 (F.C.T.D.)
4 See Lidder v. Canada (Minister of Employment and Immigration) [1992] 2 F.C. 621 (F.C.A.); Demitras v. Canada (Minister of Employment and Immigration) [1993] 1 F.C. 602 (F.C.A.); Gonsalves v. Canada (Minister of Citizenship and Immigration), May 9, 1997, Court File IMM-1992-96 (unreported), (F.C.T.D.); and Parmar v. The Minister of Citizenship and Immigration, June 26, 1997, Court File IMM-1133-96 (unreported) (F.C.T.D.).
5 (1996), 34 Imm. L.R. (2d) 166 (F.C.T.D.)