[2001] 1 F.C. 373
A-21-99
Nasteha Mohamed Adam (Appellant) (Applicant in the Trial Division)
v.
The Minister of Citizenship and Immigration (Respondent) (Respondent in the Trial Division)
Indexed as: Adam v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Rothstein, McDonald and Sharlow JJ.A.—Toronto, August 22 and 25, 2000.
Citizenship and Immigration — Exclusion and Removal — Immigration Inquiry Process — Certified question: whether inherent jurisdiction to extend statutory time limitation when justice requiring it, and when strict adherence to time limitation resulting in frustration of legislative purpose — Immigration Regulations, 1978, s. 11.4(2)(b) imposing 15-day time limitation for application by failed refugee claimant for membership in post-determination refugee claimants in Canada (PDRCC) class — Immigration officer rejecting claim as made out of time — Not having jurisdiction to extend statutory time limit under PDRCC regulations — Time limit integral part of determination procedure for PDRCC class, statutory limitation on immigration officer’s authority to deal with applications under PDRCC regulations — Language of time limitation clear, unambiguous.
Constitutional law — Charter of Rights — Life, liberty and security — Certified question: whether failure to provide in post-determination refugee claimants in Canada (PDRCC) class regulations for discretionary power to extend time limit breach of Charter, s. 7 as not in accord with principles of fundamental justice — Failed refugee claimants entitled to procedure in accord with fundamental justice in determination of potential risk of removal — Issue not whether strict time limitation with no provision for discretionary extension accords with fundamental justice principles, but whether scheme of Act affords sufficient procedural protection against removal to country where personal security at risk — Act providing such protection by giving (i) right to seek judicial review of negative refugee determination; (ii) right under s. 114(2) to apply for permanent residence in Canada on humanitarian, compassionate grounds (possibly including risk assessment), coupled with right to seek stay of removal pending determination of application; (iii) right to make PDRCC application which must include risk assessment — Time limitation imposing reasonable obligation of diligence on potential applicant, but neither vitiating safeguards available to person at risk of being deprived of personal security through removal to another country, nor compelling immigration authorities to read mandatory time limitation as though subject to discretionary extension.
These were the answers to questions certified by a Motions Judge in dismissing an application for judicial review of an immigration officer’s refusal of the applicant’s post-determination refugee claimants in Canada (PDRCC) class application. Immigration Regulations, 1978, paragraph 11.4(2)(b) imposes a 15-day time limitation for an application by a failed refugee claimant for membership in the PDRCC class but, pursuant to an administrative guideline, PDRCC applications postmarked within 22 days of the decision date are accepted as on time. Along with the notification of its decision that her refugee claim had been rejected, the CRDD sent the appellant information on making a PDRCC application and an application form. That information explained that a PDRCC application must be made within 15 days of the date on the notice of decision. The appellant mailed a PDRCC application well outside the 15-day limit. The immigration officer rejected the application summarily on the ground that he did not have authority to deal with an application post-marked more than 22 days after the negative refugee determination. The Motions Judge certified the following questions: (1) whether an immigration officer has an inherent jurisdiction to extend the statutory time limit for filing an application under the PDRCC regulations; and (2) whether the failure to provide in the PDRCC regulations for a discretionary power to extend the time limit is a breach of Charter, section 7 as not in accordance with the principles of fundamental justice. Section 7 provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Held, the appeal should be dismissed and both questions answered in the negative.
(1) The time limit is an integral part of the determination procedure for the PDRCC class and thus is a statutory limitation on the authority of immigration officers to deal with applications under the PDRCC regulations. The time limitation is clear and unambiguous.
(2) Failed refugee claimants are entitled to a procedure that accords with the principles of fundamental justice in the determination of the potential risk faced by them in the event of removal. However, the issue was not whether the existence of a strict time limitation for PDRCC applications, with no provision for discretionary extension, accords with the principles of fundamental justice, but whether the scheme of the Immigration Act as a whole affords failed refugee claimants sufficient procedural protection against removal to a country where their personal security is at risk. That test was met. The Immigration Act provides several procedural safeguards to a failed refugee claimant who faces a risk of removal to such a country. There is a right to seek judicial review of the negative refugee determination; second, there is a right under subsection 114(2) to apply for permanent residence in Canada on humanitarian and compassionate grounds (which may include a risk assessment), coupled with the right to seek a stay of removal pending the determination of such an application; and third, there is a right to make a PDRCC application which must include a risk assessment. The time limitation attached to the right to make a PDRCC application imposes on an intended applicant a reasonable obligation of diligence. That requirement does not vitiate the safeguards that are available to a person at risk of being deprived of personal security through removal to another country. Nor does it compel the immigration authorities to read the time limitation, which by its terms is mandatory, as though it is subject to a discretionary extension.
A person who does not file a PDRCC application, or whose PDRCC application fails, retains the option of an independent application for humanitarian and compassionate relief and a stay of removal, which in an appropriate case would include a risk assessment.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7.
Immigration Act, R.S.C., 1985, c. I-2, ss. 53(1)(b) (as am. by S.C. 1992, c. 49, s. 43), 114(2) (as am. idem, s. 102).
Immigration Regulations, 1978, SOR/78-172, ss. 2(1) “member of the post-determination refugee claimants in Canada class” (as am. by SOR/93-44, s. 1), 11.4(2)(b) (as enacted idem, s. 10; 97-182, s. 5).
CASES JUDICIALLY CONSIDERED
APPLIED:
Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (2000), 18 Admin. L.R. (3d) 159; 5 Imm. L.R. (3d) 1; 252 N.R. 1 (C.A.); leave to appeal to S.C.C. granted [2000] S.C.C.A. No. 106 (QL); Farhadi v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 80 (F.C.A.); leave to appeal to S.C.C. submitted [2000] S.C.C.A. No. 251 (QL).
DISTINGUISHED:
Bains v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 487 (1989), 61 D.L.R. (4th) 573; 47 C.R.R. 361; 8 Imm. L.R. (2d) 165 (C.A.).
APPEAL, authorized by certification of questions, from the decision of a Motions Judge that there is neither authority nor obligation to extend the time limit within which to claim membership in the PDRCC class. The questions certified were: (1) whether an immigration officer has an inherent jurisdiction to extend the statutory time limit for filing an application under the PDRCC regulations; and (2) whether the failure to provide in the PDRCC regulations for a discretionary power to extend the time limit is a breach of Charter, section 7 because it does not accord with the principles of fundamental justice (Adam v. Canada (Minister of Citizenship and Immigration) (1998), 161 F.T.R. 42 (F.C.T.D.)). Both questions were answered in the negative and the appeal was dismissed.
APPEARANCES:
Geraldine Sadoway for appellant (applicant in the Trial Division).
Susan Nucci for respondent (respondent in the Trial Division).
SOLICITORS OF RECORD:
Parkdale Community Legal Services, Toronto, for appellant (applicant in the Trial Division).
Deputy Attorney General of Canada for respondent (respondent in the Trial Division).
The following are the reasons for judgment of the Court delivered orally in English by
[1] Sharlow J.A.: The issue in this case is whether an immigration officer has the authority or the obligation to consider a request for an extension of the time limitation in paragraph 11.4(2)(b) of the Immigration Regulations, 1978, SOR/78-172 [as enacted by SOR/93-44, s. 10; 97-182, s. 5]. That Regulation imposes a 15-day time limitation for an application by a failed refugee claimant for membership in the “post-determination refugee claimants in Canada” (PDRCC) class.
[2] The Motions Judge decided that there was no authority or obligation to extend the time limitation: (1998), 161 F.T.R. 42 (F.C.T.D.). However, he certified the following questions to permit his decision to be appealed to this Court [at page 50]:
Whether there is an inherent jurisdiction to extend a statutory time limitation when justice requires it and when the strict adherence to the time limitation results in the frustration of the legislative purpose.
Whether, the strict 15 day time limitation set out in section 11.4(2)(b) of the Immigration Regulations, for an application to seek a risk assessment under the PDRCC programme, after receiving notice of refusal of a refugee claim, violates s. 7 of the Charter of Rights and Freedoms, as such a limitation, with no opportunity for an extension of time, is not in accordance with the principles of fundamental justice.
[3] For the reasons that follow, I respectfully agree with the decision of the Motions Judge, and would answer both of these questions in the negative.
[4] The facts are as follows. The appellant, Ms. Adam, is a citizen of Somalia. In 1991, when she was 18 years old, she fled that country to escape a civil war, going first to Kenya and then in 1996 to Canada, where she claimed refugee status. In a decision dated July 7, 1997, her refugee claim was rejected by the Convention Refugee Determination Division (CRDD).
[5] Ms. Adam, as a failed refugee claimant, became subject to removal from Canada. However, she could have filed an application under subsection 11.4(2) of the Regulations for a determination that she was a member of the PDRCC class. That claim should have been made within 15 days of receiving notification of the decision rejecting her refugee claim. A successful PDRCC application would have precluded removal proceedings and entitled her to apply within Canada for landed immigrant status.
[6] In order to succeed in a PDRCC application, Ms. Adam would have had to satisfy an immigration officer that a number of conditions were met. For present purposes, it is necessary to point only to the condition set out in paragraph (c) of the definition of “member of the post-determination refugee claimants in Canada class” found in subsection 2(1) [as am. by SOR/93-44, s. 1] of the Immigration Regulations, 1978. That condition is that Ms. Adam is a person:
2. (1) …
“member of the post-determination refugee claimants in Canada class”
…
(c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country,
(i) to the immigrant’s life, other than a risk to the immigrant’s life that is caused by the inability of that country to provide adequate health or medical care,
(ii) of extreme sanctions against the immigrant, or
(iii) of inhumane treatment of the immigrant.
[7] It was the position of Ms. Adam’s counsel, which was undisputed by counsel for the Crown, that in Ms. Adam’s case, the country in question would have been Somalia.
[8] The CRDD sent Ms. Adam information about the opportunity to make a PDRCC application, as well as the required application form, with the notification of its decision that her refugee claim had been rejected. The first paragraph of the document describing the PDRCC application reads as follows:
Individuals who have been refused Convention refugee status in Canada have the option of applying for consideration under the post-determination refugee claimants in Canada (PDRCC) class. The PDRCC class is for people who, if they are not Convention refugees, would nevertheless be at risk if removed from Canada.
[9] This description of the PDRCC class is reasonably accurate. The PDRCC application form itself is a relatively simple one-page document, requiring only information that identifies the applicant and the country in respect of which the PDRCC application is being made. The form may be submitted by ordinary mail. No fee is payable under the Immigration Regulations, 1978 for a PDRCC application.
[10] The information sent to Ms. Adam with her negative refugee decision says that a PDRCC application must be made “within 15 days of the date on the notice of the decision”. It also explains what appears to be an administrative guideline to the effect that PDRCC applications postmarked within 22 days of the decision date are accepted as being on time. That guideline has apparently been adopted to allow a reasonable time between the date on which the written notification of the decision is signed, and the date on which that notice can reasonably expect to be received by the refugee claimant through the mail. It is undisputed that the regulation itself stipulates that it is receipt of the notification that marks the commencement of the 15-day limitation period.
[11] There is no evidence that Ms. Adam would have been unable to understand the information that was sent to her, if she had read it. Nor does she deny having received it.
[12] Ms. Adam made a PDRCC application, but it was not mailed until October 3, 1997, well outside the 15-day time limit. Her application was rejected summarily by an immigration officer on the basis that he did not have the authority to deal with a PDRCC application postmarked more than 22 days after the negative refugee determination. It is that decision that is the subject of the judicial review from which this appeal has been taken.
[13] The explanation for the late filing is as follows. During the refugee claim process, Ms. Adam was represented by a lawyer. Ms. Adam says in her affidavit that when she received the negative decision with respect to her refugee claim, she attempted to contact her lawyer, but he did not return her calls for approximately one week. When he finally contacted her, he explained that he had moved offices and as a result had not learned of the negative decision. She later met with him, and he explained the procedure for seeking judicial review of the decision. She paid him $50 to cover the filing fee, which she had received from relatives in Canada.
[14] With respect to the possibility of a PDRCC application, Ms. Adam deposes as follows:
We did not discuss his assisting me in submitting a PDRCC, since this was too expensive. He did not advise me that there was a time limit for submitting the PDRCC and that I could sign the form and send it in on my own to ensure that the PDRCC application would be considered.
[15] This suggests that a PDRCC application was discussed with Ms. Adam, but rejected because of the cost of the lawyer’s services. In a letter dated October 2, 1997, Ms. Adam’s present lawyer represented to the Manager of the Post Determination Review section in Toronto that Ms. Adam’s former lawyer did not inform Ms. Adam of the opportunity to complete a PDRCC application “as he believed the success rate to be too low to apply”.
[16] It is not possible to determine from the record whether or not Ms. Adam’s former lawyer gave her appropriate advice with respect to the PDRCC procedure. But whatever his advice to Ms. Adam may have been, it is clear that the documents sent to her by the CRDD contained the information and the form she required.
[17] In due course, Ms. Adam’s application for leave to commence an application for judicial review of the negative refugee determination failed for failure to perfect the application record. The suggested reason for that is that Ms. Adam was unable to afford to pay her former lawyer, and no financial assistance was available to her through her family, legal aid or her present counsel, who works for Parkdale Community Legal Services.
[18] Ms. Adam was also entitled to make an application under subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of the Immigration Act, R.S.C., 1985, c. I-2, for relief on humanitarian and compassionate grounds. She did not do so. It was suggested in argument that this was due to her inability to pay the $500 fee. However, the Motions Judge noted that the evidence on this point was insufficient. Ms. Adam did not give direct evidence as to the reasons for her failure to file a subsection 114(2) application.
[19] The first question is whether an immigration officer has the inherent jurisdiction to extend the statutory time limit for filing an application under the PDRCC regulations. In my view, the answer must be no. The time limit is an integral part of the determination procedure for the PDRCC class and thus is a statutory limitation on the authority of immigration officers to deal with applications under the PDRCC regulations. The language of the time limitation is clear and unambiguous.
[20] The second certified question is whether the failure of the Governor in Council to provide in the PDRCC regulations for a discretionary power to extend the time limit is a breach of section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] because it does not accord with the principles of fundamental justice. Section 7 reads:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[21] In Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.), this Court accepted without debate that the issuance of a “danger opinion” under paragraph 53(1)(b) [as am. by S.C. 1992, c. 49, s. 43] of the Immigration Act engages section 7 of the Charter, if the result of the opinion is that the person may be removed to a country where he might be subject to torture. Subsequently, this Court held in Farhadi v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 80 (F.C.A.), that a person who is found to have a credible basis for a Convention refugee claim against a particular country is entitled to a risk assessment and determination conducted in accordance with the principles of fundamental justice before a valid determination can be made to remove that person to that country.
[22] In both cases, the risk assessment was an aspect of the danger opinion procedure, which is a step in the removal process even though it is not by itself a decision to make a removal order or deportation order. In both cases, the Court found the legislative provision in issue to be an infringement of section 7 but valid because of section 1. (Leave to appeal to the Supreme Court of Canada has been granted in Suresh [[2000] S.C.C.A. No. 106 (QL)] and sought in Farhadi [[2000] S.C.C.A. No. 251 (QL)].)
[23] In the case of a failed refugee claimant, the process of removal starts with the rejection of the refugee claim. The PDRCC procedure permits a failed refugee claimant to obtain the same kind of risk assessment that is automatically made available to refugees or refugee claimants who are the subject of a danger opinion. Having accepted that the risk of harm upon removal of such persons engages section 7 of the Charter, it would be incongruous to find that a person who is a failed refugee claimant cannot invoke section 7 of the Charter to assert a right to a risk assessment procedure conducted in accordance with the principles of fundamental justice.
[24] I conclude, therefore, that failed refugee claimants are entitled to a procedure that accords with the principles of fundamental justice in the determination of the potential risk of removal. However, the issue is not whether the existence of a strict time limitation for PDRCC applications, with no provision for discretionary extension, accords with the principles of fundamental justice. The issue is whether the scheme of the Immigration Act, considered as a whole, affords failed refugee claimants sufficient procedural protection against removal to a country where their personal security is at risk.
[25] In my view, that test is met. The Immigration Act provides several procedural protections available to a failed refugee claimant who faces a risk of removal to such a country. First, there is a right to seek judicial review of the negative refugee determination. Second, there is a right under subsection 114(2) to apply for permanent residence in Canada on humanitarian and compassionate grounds (which may include a risk assessment), coupled with the right to seek a stay of removal pending the determination of such an application. Third, there is a right to make a PDRCC application, which must include a risk assessment.
[26] The time limitation attached to the right to make a PDRCC application imposes on an intended applicant a reasonable obligation of diligence. That requirement does not vitiate the safeguards that are available to a person at risk of being deprived of personal security through removal to another country. Nor does it compel the immigration authorities to read the time limitation, which by its terms is mandatory, as though it is subject to a discretionary extension.
[27] The strongest authority in favour of Ms. Adam’s position is the decision of this Court in Bains v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 487 (C.A.). In that case, this Court said that the Immigration Appeal Board had an obligation to consider an application for redetermination of a refugee claim, despite the fact that the application was filed outside the statutory time limits, because it had an overriding obligation to determine whether or not the applicant stands to be deprived of a Charter-protected right. That case was decided in the context of a previous version of the Immigration Act, and dealt with a refugee determination scheme that has since been replaced by the current one. It may be that under the former scheme, a time limitation as a bar to the determination of the appellant’s refugee claim was a breach of a Charter right because it led inexorably to removal to a country where there was a risk of deprivation of personal security. However, that is not the situation under the current legislation. A person who does not file a PDRCC application, or whose PDRCC application fails, retains the option of an independent application for humanitarian and compassionate relief and a stay of removal, which in an appropriate case would include a risk assessment.
[28] For these reasons, this appeal is dismissed.