Date: 20010302
Docket:IMM-641-00
Neutral Citation: 2001 FCT 140
Between:
Ayodeji Akanmu Alabi,
Applicant
- and -
The Minister of Citizenship and Immigration,
Respondent.
REASONS FOR ORDER AND ORDER
Muldoon, J:
1. Introduction
[1] This is an application pursuant to section 82.1 of the Immigration Act for judicial review of the decision of the Post Claim Determination Officer (PCDO) dated January 20, 2000 which determined that the applicant was not eligible to apply to the PDRCC program because of the lateness of his application. This application was heard in Toronto, on January 9, 2001.
2. Statement of Facts
[2] The applicant is a citizen of Nigeria. On April 13, 1999, a panel of the Convention Refugee Determination Division (CRDD) rendered a negative oral decision from the bench; and it issued a negative written decision on May 25, 1999. On June 9, 1999, the registrar signed the notice of determination and mailed it to the applicant. The applicant received this notice on July 22, 1999. On July 7, 1999, the applicant applied by facsimile communication (fax) for eligibility under the Post-Determination refugee Claimants in Canada class (PDRCC). On January 29, 2000, the applicant received a letter from the PCDO stating that the application would not be considered because the applicant did not apply within 15 days of the CRDD decision. The letter stated:
| The decision of the Refugee Division was sent on 09 June 1999. With seven days allowed for mailing, the deadline for submitting your application was 01 July 1999. Your application was Faxed on 07 July 1999 and is therefore refused on the basis that it was not submitted within the time period specified in the regulations. |
[3] The applicant applied for Convention refugee status because he had been persecuted in Nigeria for his political views and beliefs. The applicant adhered to several political organizations and actively campaigned for a presidential candidate. He has been arrested several times, and has been beaten and tortured while in detention. In 1997, after being arrested, detained and beaten, he was informed by sympathetic members of the state security service that his name had been forwarded to the military government as a troublemaker, and they advised him to leave Nigeria.
[4] Notwithstanding the CRDD's negative decision, the applicant still faces a risk in Nigeria despite the change of Government, because the civilian government is not in control of the entire country. The military still persecutes people based on political, religious and tribal allegiances. The individuals against whom the applicant campaigned are still in power and persecute civil activists.
3. Issue
[5] Did the PDRCC officer err by refusing to review the PDRCC application?
4. Applicant's Submissions
Subsection 11.4(2) of the Immigration Regulations states:
| 11.4(2) For the purposes of subsection 6(5) of the Act, a person whom the Refugee Division |
| (b) on or after May 1, 1997, has determined is not a Convention Refugee and who intends to apply for landing as a member of the post-determination refugee claimants in Canada class shall submit an application for a determination of whether the person is a member of that class to an immigration officer not later than 15 days after the day the person is notified of the determination by the Refugee Division. |
[6] The applicant states that he received the written decision on June 22, 1999, and faxed the PDRCC application on July 7, 1999, within the 15 day time period after he received the decision by the mail.
Subsection 2(4) of the Immigration Act states:
| Deemed notification |
| (4) For the purposes of this Act, a person, including the Minister, shall, in the absence of proof to the contrary, be deemed to have been notified of a decision under this Act, other than a decision of a visa officer, |
...
| (b) where the person was entitled to written reasons, or was entitled to request, and requested within the time normally provided therefor, written reasons, on the day that is seven days after the day on which the written reasons were sent to the person, which notice or written reasons may be sent by mail. |
[7] The applicant submits that this seven day time period for the postage and delivery of the decision to the applicant is rebuttable and that the following statement by Lorne Waldman in Immigration Law and Practice, Vol. 2, (Toronto: Butterworths, 1999) at 15.24 is applicable here:
| [I]f, however, the claimant did not receive it [the decision] in a timely fashion and could show that, through no fault of his or her own, the notification was not received within the 7 day time period, and he did apply within 15 days of receiving the notification, it is arguable that the application would have complied with the requirement of section 11.4(2)(b) of the Immigration Regulation, 1978. |
[8] The applicant complied with the time period and submitted the application within 15 days from the date on which he received the written decision. It is unjust to hold him responsible for a delay in the mail. Moreover, the PCDO does not have evidence about when the applicant received the decision, and the seven day time period is final only in absence of proof to the contrary.
[9] In Filipovic v. M.C.I.1, Mr. Justice Dube stated at page 4:
| [12] The application for membership in the PDRCC class is an important part of the legislative scheme of the Act in that it provides a risk assessment of success for refugee claimants who, while having failed to definitively establish the criteria of a convention refugee, are nonetheless at risk upon return to their country of origin. ... |
[10] It would be an unlawful exercise of a statutory duty and is inconsistent with the duty of fairness owed to the applicant to send him back to Nigeria based upon a postal delay and not upon the merits of this case.
[11] The applicant submits that the appropriate date from which the 15-day time period starts to run is the date of the written decision because it is mandatory for the CRDD to give written reasons in the event of a negative decision. Moreover, failed refugee claimants obtain the PDRCC application forms with the written notice of the decision.
5. Respondent's Submissions
[12] The respondent submits that the PCDO did not err in determining that the applicant was not in compliance with paragraph 11.4(2)(b) of the Immigration Regulations, 1978 and was therefore out of time to apply for the PDRCC program. The respondent's posture is simply incorrect.
[13] The determination whether a person is entitled to H & C consideration under the PDRCC class is within the discretion of the immigration officer who made the negative determination. The eligibility of an individual for H & C consideration as a member of the PDRCC class is a special and additional consideration for an exemption from Canadian immigration law which normally requires that an individual apply for landing from outside of Canada. The decision of an immigration official to refuse to recommend an individual for eligibility for special consideration does not take away rights from the individual who remains free to apply for landing from outside of Canada.
[14] This Court has held that discretionary decisions of PCDOs are subject to judicial review if their discretion is exercised pursuant to improper purposes or irrelevant considerations with bad faith or in a patently unreasonable manner.
[15] Regulation 11.4(2)(b) requires that the applicant be notified of the decision of the determination of the CRDD. The CRDD notified the applicant of the negative decision orally on April 13, 1999. The applicant acknowledges this fact, but it is irrelevant. The regulation contemplates notifying an immigration officer by application for a determination of class membership no later than 15 days after the applicant is notified of the determination by the CRDD. The PCDO indicated that the application was refused because it was not submitted during the 15-day time period established by the Regulations. The Regulations do not allow the PCDO to extend the application period. Therefore, he was required to refuse the application. Furthermore, subsection 2(4) of the Immigration Act provides that the applicant is deemed to have been notified on the day that is seven days after the day on which the written reasons were sent to the person. Again, the PCDO
was obligated under the statute to refuse the application, quoth the respondent, incorrectly in the circumstances.
6. Remedies
[16] The applicant requests that the decision of the PDRCC officer be set aside and the matter referred back for determination on the merits; and, the respondent requests that this application be dismissed.
Ottawa, Ontario
March 2, 2001
O R D E R
THIS COURT ORDERS that the application for judicial review of the PCDO's decision dated January 20, 2000 be, and it is hereby, allowed; and that decision is quashed and set aside; and
the application for Post Claim Determination status is referred to a different PCDO officer for determination on its merits, as if it had never been refused, and in accord with the principles of this decision.
Judge
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