Date: 20000317
Docket: IMM-1259-99
Between :
ABDUL QAYUM,
NOOR JEHAN REGUN,
SAIQA QAYUM,
BABAR QAYUM
Plaintiffs
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD, J. :
[1] The plaintiffs seek judicial review of a decision of Citizenship and Immigration Canada dated February 12, 1999, refusing the application of Abdul Qayum for permanent residence in Canada as a member of the Deferred Removal Orders Class (the DROC).
[2] The relevant passages of the visa officer"s decision are the following:
| We have reviewed the Affidavit you provided in response to our letter informing you that your application may be refused under the DROC program. This affidavit does not change the fact that you do not meet the requirements under the DROC program; that is; your son, Babar Qayum, born 18 December 1979, has not presented evidence that he is not a person described in the Immigration Regulation 11.401(e). |
| The Immigration Regulation R11.401(e) states: |
| "A member of the deferred removal orders class and the member"s dependants, if any, are subject to the following landing requirements: |
| the member and the member"s dependants must not be persons described in any of paragraphs 19(1)(a), (c) to (g) and (i) to (l) and 2(a) to (b) of the Act;" |
| The references to paragraphs in Section 19 of the Immigration Act are shown in the attachment to this letter. |
| Since Babar Qayum has not presented evidence that he is able to comply with this requirement, and since he does not fall within Regulations 6(5)(ii), your application for permanent residence in Canada as a member of the Deferred Removal Orders Class is refused. |
However, no attachment accompanied this letter.
[3] Learned counsel for the plaintiffs essentially argued before me that the decision is vague and therefore unfair because it was difficult for the plaintiffs to present evidence that Babar Qayum was able to comply with paragraph 11.401(e) of the Immigration Regulations, 1978 (the Regulations). Furthermore, it was submitted that no one at the Case Processing Centre told the plaintiffs what evidence had to be produced.
[4] The Regulations relating to the DROC have now been repealed. Paragraph 11.401(e) of those Regulations, applicable to this case, specifically provided that for an application to be approved, the applicant"s dependants must not be persons described in paragraph 19(1)(a) of the Immigration Act (the Act):
| A member of the deferred removal orders class and the member"s dependants, if any, are subject to the following landing requirements: |
| [. . .] |
| (e) the member and the member"s dependants must not be persons described in any of paragraphs 19(1)(a), (c) to (g) and (i) to (l) and 2(a) to (b) of the Act; and |
[5] Upon reviewing the evidence, it appears that the plaintiffs were given several indications that Babar Qayum might be medically inadmissible. The plaintiffs"Record contains two letters addressed to Babar Qayum, dated June 18, 1997 and August 6, 1997, indicating that additional medical information was required to determine whether he met the medical requirements for admission to Canada. According to an entry in the CAIPS notes dated February 19, 1998, a letter was sent to Mrs. Noor Jehan Begum (sic) on November 24, 1997 informing her that her son was inadmissible under paragraph 19(1)(a)(ii) and giving her an opportunity to submit new medical information with regard to her son"s medical condition. At pages 45 and 46 of the Certified Record, there is a copy of a letter that was sent to the plaintiffs on March 16, 1998 indicating the possibility of refusal due to Babar Qayum"s medical inadmissibility under paragraph 19(1)(a). This letter also indicated that the plaintiffs had the opportunity to respond with new medical information before a decision was taken. In addition, the CAIPS notes mention that another letter was sent to Mrs. Begum (sic) on or about June 11, 1998, advising her to submit all additional new medical information related to Babar Qayum.
[6] By this point, the plaintiffs should have been fully aware of that there was a problem with regard to Babar Qayum"s medical admissibility under paragraph 19(1)(a). The plaintiffs were given several clear indications that medical information regarding Babar Qayum was required and, in fact, the CAIPS notes indicate that additional information was received from the plaintiffs. Even the plaintiffs"lawyer, in her letter to the Canadian High Commission dated March 4, 1999, noted that the plaintiffs were refused landing because Babar Qayum did not meet the requirements of paragraph 19(1)(a). Therefore, it seems unlikely that the plaintiffs did not, as they argue in paragraphs 10 to 17 of their Memorandum, understand the reason for the refusal of their permanent residence application or what evidence they were required to present to the Case Processing Centre.
[7] Moreover, the onus was on the plaintiffs to ensure that their application was complete. They were given several warnings that their application was lacking. In my opinion, these warnings satisfied the duty of fairness owed by the immigration officers to the plaintiffs at the application stage.
[8] In this context, although the visa officer failed to attach the references to section 19 of the Act which were mentioned in the decision, and although the decision does not specify which of "paragraphs 19(1)(a), (c) to (g) and (i) to (l) and 2(a) to (b)"apply to Babar Qayum, I do not see any basis to set aside the decision on the grounds of vagueness and unfairness.
[9] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
March 17, 2000