Date: 20010223
Docket: IMM-91-00
Citation: 2001 FCT 109
BETWEEN:
Mehdi Rahat VARNOSFADERANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
| A. BACKGROUND |
[1] This judicial review application by Mehdi Rahat Varnosfaderani (the "applicant"), a citizen of Iran, challenges a June 23, 1999 decision of Citizenship and Immigration Canada ("CIC") refusing his application to be recognized as a member of the Post-determination Refugee Claimants in Canada Class ("PDRCC") because that application had not been received within the required time period.
[2] The following is the text of CIC's refusal letter:
| Under Immigration Regulations, failed refugee claimants have to apply to obtain a review of their case under the PDRCC class. The application must be postmarked no later than 22 days following the date of the notice of the Refugee Division decision. |
| The date of the Notice of Decision by the Refugee Division was May 5, 1999. The application for a PDRCC was due May 27, 1999. As no application for a PDRCC was received within the required time period the application under the PDRCC class is refused. |
[3] Paragraph 11.4(2)(b) of the Immigration Regulations provides that a PDRCC applicant "shall submit an application ... not later than 15 days after the day the person is notified of the determination by the Refugee Division" [my emphasis].
[4] Paragraph 2(4)(b) of the Immigration Act is a deemed notification provision. It reads, in part, as follows:
| 2. (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. [my emphasis] |
2. (4) Pour l'application de la présente loi, une personne, y compris le ministre, est présumée, en l'absence de preuve contraire, être avisée d'une décision rendue sous le régime de la présente loi, à l'exception de toute décision d'un agent des visas_: . . . b) le septième jour suivant l'envoi des motifs écrits, lorsqu'elle y a droit ou lorsqu'elle avait droit de les demander et les a effectivement demandés dans le délai imparti. |
[5] I should add that the Federal Court of Appeal in Adam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1375, ruled that an immigration officer had no authority to extend the 15-day limit under paragraph 11.4(2)(b) of the Immigration Regulations (the Regulations).
| B. THE AFFIDAVITS IN THESE PROCEEDINGS |
[6] The applicant filed an affidavit in these proceedings indicating:
| (1) In 1989, the German government recognized his claim to Convention Refugee status but he was forced to return to Iran where he was imprisoned. After his release, he escaped to Canada in 1996 where he made a refugee claim. |
| (2) On Monday, May 10, 1996, he received the Refugee Division's decision denying his claim. |
| (3) On Friday, May 21, 1999, he signed the PDRCC application and left it with his legal counsel. |
| (4) Exhibit B to his affidavit is a photocopy of his signed PDRCC application dated May 21, 1999. |
[7] Marnie Cole, legal assistant to the applicant's legal counsel, deposed:
| (a) on May 21, 1999, the applicant attended the offices of Anthony Norfolk, Barrister and Solicitor, to sign the PDRCC application; |
| (b) she sent on May 24, 1999, the application to CIC via courier as recorded in "our courier pick up book"; |
| (c) she believed the application form was properly delivered that date. |
[8] The respondent filed the affidavit of Marla Holloway, a mail service clerk employed with the mailroom of Public Works and Government Services Canada in Vancouver:
| (1) She described the system in place for the receipt, date stamping and delivery of incoming mail as well as courier deliveries of PDRCC applications. |
| (2) She noted it appeared the PDRCC application made by the applicant was delivered on June 30, 1999, and attaches as Exhibit "A" to her affidavit a copy of the original envelope in which the application was delivered to the Post Claim Determination Office (PCDO). |
[9] The respondent also filed the affidavit of Patricia Tailleur, employed with the PCDO in Vancouver as a junior officer and working there during May and June 1999. She deposed:
| (1) She has the responsibility of opening files and processing PDRCC applications. |
| (2) Each PDRCC application has to be submitted to the PCDO within 22 days from the date of the IRB's notice of decision, pursuant to paragraph 11.4(2)(b) of the Regulations, which requires the application to be delivered to the PCDO within 15 days after the claimant is notified of the determination by the CRDD and pursuant to subsection 2(4) of the Immigration Act which deems the claimant to have been notified of the PDRCC's written decision on the day that is seven days after the date of the IRB's notice of decision. |
| (3) She keeps the original of the envelopes containing each PDRCC application. If mailed, she checks the Canada Post postmark. If delivered by courier she notes most courier companies have their own waybill system to indicate time of pick-up. She notes she has not seen a courier waybill for the delivery of the applicant's PDRCC application. She deposes as Exhibit "A" the envelope in which the applicant's PDRCC's application was delivered to the PCDO. It bears a receipt stamp of June 30, 1999. |
| C. ANALYSIS |
[10] In my view, this judicial review application must be allowed because the CIC examined, from the wrong end of the telescope, the issue of whether the applicant's PDRCC application was out of time. The CIC's focus, as evidenced by the affidavits of the respondent, was when did the Department receive the application rather than asking or examining when did the applicant send his application.
[11] The governing provision is paragraph 11.4(2)(b) of the Immigration Regulations which provides that the applicant "shall submit an application not later than 15 days after the person is notified of the determination by the Refugee Division.
[12] The ordinary meaning of the word "submit" in paragraph 11.4(2)(b) taken in its context, means send or make an application. In its context, the word "submit" as used in this paragraph, does not mean "receive". When Parliament wanted to convey this connotation it did so in plain terms in the very same section. The example which comes to mind is paragraph 11.4(3) of the Regulations which provides that PDRCC submissions must be received by an immigration officer no later than a certain period.
[13] In my view, a PDRCC applicant must send the application no later than 15 days of being notified of the negative decision of the Refugee Division which, under subsection 4(2) of the Act, is deemed to have occurred seven (7) days after the date of mailing unless the contrary is shown.
[14] In this case, the applicant swore he received the Refugee Division's decision on May 10, 1999. He had to submit his application by May 26, 1999. I have the unchallenged evidence of Marnie Cole, who was not cross-examined, saying she sent the applicant's PDRCC application to CIC on May 24, 1999. On that day the applicant was not out of time.
C. DISPOSITION
[15] This judicial review application is allowed, the decision of CIC determining the applicant was out of time in making his PDRCC application is quashed. The result is that CIC must review that application and the applicant is entitled to make submissions to the PCDO which must be received within 30 days from the date of these reasons. No certified question arises.
(Sgd.) "F. Lemieux"
Judge
Vancouver, British Columbia
February 23, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-91-00 |
| STYLE OF CAUSE: Mehdi Rahat Varnosfaderani |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: February 15, 2001 |
| REASONS FOR ORDER OF LEMIEUX, J. |
| DATED: February 23, 2001 |
APPEARANCES:
| Mr. Anthony Norfolk For the Applicant |
| Ms. Emilia Pech For the Respondent |
SOLICITORS OF RECORD:
Anthony R. Norfolk
Barrister and Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |