NOTE FROM TRANSLATOR
There appears to be an inconsistency between paragraph [28] which states that the applicant"s letter was dated the same day the senior immigration officer decided that the applicant was eligible to have her claim heard, while paragraphs [7] to [9] seem to indicate that the officer"s decision was on December 11, 1996 and the withdrawal of the applicant"s claim for refugee status was on December 19, 1996.
Date: 19981113
Docket: IMM-5448-97
BETWEEN:
AMINA NKUMBI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision dated December 4, 1997, in file number 3207-1919, by immigration counsellor Chantal Duval, in accordance with section 82.1 of the Immigration Act.
[2] The applicant arrived in Canada on September 1, 1995 with a student authorization valid until November 30, 1996.
[3] In October 1996, the applicant filled out an application for an extension of her student authorization.
[4] On November 14, 1996, the Quebec government sent the applicant a certificat d"acceptation du Québec (CAQ) to continue her studies, but indicated that this was not a student authorization and that she had to apply for one directly from the Canadian government.
[5] On January 6, 1997, she obtained the required student authorization, which had a date of expiration of December 30, 1997.
[6] On November 21, 1996, the applicant claimed refugee status in Canada for the first time, alleging there were serious political problems in Zaire which put her family in danger.
[7] On December 11, 1996, a senior immigration officer concluded that the applicant was eligible to have her claim determined and referred the file to the Convention Refugee Determination Division.
[8] On the same day, December 11, 1996, the senior immigration officer made a departure order against the applicant because her student authorization had expired; in fact, by the operation of sections 27(2)(a), 19(2)(d) and 9(1) of the Act, the applicant was in Canada without a visa. It appears from the face of the document that the applicant was not notified of this order, which was not signed.
[9] On December 19, 1996, the applicant withdrew her claim for refugee status after hearing from her father that the situation in Zaire was improving. When she did so, the departure order made on December 11, 1996, became effective pursuant to paragraph 28(2)(a) of the Act:
28. (1) Where a senior immigration officer is of the opinion that a person who aims to be a Convention refugee is eligible to have their claim referred to
the Refugee Division and is a person in respect of whom the senior immigration officer would, but for this section, have made an exclusion order under subsection 23(4) or (4.01) or a departure order under subsection 27(4), the senior immigration officer shall make a conditional departure order against the person.
(2) No conditional departure order made pursuant to subsection (1) against a person who claims to be a Convention refugee is effective unless and until
| (a) the person withdraws the claim to be a Convention refugee . . . . |
28. (1) S'il conclut à la recevabilité de la revendication du statut de réfugié au sens de la Convention de la personne à l'encontre de laquelle il prendrait une mesure d'exclusion au titre des paragraphes 23(4) ou (4.01) ou une mesure d'interdiction de séjour au titre du paragraphe 27(4), l'agent principal prend contre elle une mesure d'interdiction de séjour conditionnelle.
(2) La mesure d'interdiction de séjour conditionnelle ne devient exécutoire que si se réalise l'une des conditions suivantes:
| a) la personne retire sa revendication du statut de réfugié au sens de la Convention . . . . |
[10] On May 22, 1997, the applicant was informed by an immigration officer that she no longer had any status in Canada and that she had to return home, but that a stay of removals was in effect for Zaire.
[11] On May 23, 1997, the applicant telephoned the immigration office because she had not understood what the immigration officer had said, and was informed that as her student authorization had been issued at the same time as her claim for refugee status in November 1996, she had to file a new application for a student authorization.
[12] On July 17, 1997, receipt of her application was acknowledged; this indicated that consideration of her file had been transferred to Montréal.
[13] On November 17, 1997, the applicant was told that the renewal of her student status was denied; her passport and her student authorization which was valid until December 1997 were seized and she was presented with a deportation order to sign.
[14] The applicant claims that she never knew a departure order had been made against her, even after she received a copy of her immigration file in September 1997.
[15] On November 26, 1997, the applicant made a new claim for refugee status after learning that her father"s house had been ransacked and that death threats and violence had forced all of her family to flee after Mobutu was overthrown by Laurent Désiré Kabila in Zaire in May 1997.
[16] After the claim for refugee status was filed on November 26, 1997, an immigration counsellor, Ms. C. Duval, sent a letter dated December 4, 1997, to the applicant, explaining that the latter could not make a claim for refugee status under subsection 44(1) of the Immigration Act because a removal order had been made against her, but not executed.
[17] The letter in fact states that a departure order was made on December 11, 1996 and that it was not executed.
[18] After receiving this letter, the applicant decided to file an application for judicial review of this letter.
[19] The applicant argued that Ms. Duval"s letter dated December 4, 1997, constitutes a decision made by an immigration officer.
[20] The applicant argued that the departure order mentioned in Ms. Duval"s letter was not signed by the person authorized to do so and that it was accordingly not made; also, that she did not receive service of such an order, and if so, that such an order could not have been issued on the date in question and that the impugned decision should be quashed and the appellant"s notification of claim dealt with in accordance with the Act.
[21] It is important to note at this point that the applicant did not seek to have the departure order quashed, as in my view she could have done, but to have the decision by immigration officer Ms. C. Duval, who wrote the letter dated December 4, 1997, overturned.
[22] Counsel for the applicant explained in great detail that the invalidity of the departure order, as it appears in the file, makes the decision by Ms. Duval invalid and that the whole issue should be returned to the Convention Refugee Determination Division for an evaluation of the applicant"s refugee claim based on the non-existence of the departure order.
[23] In fact, counsel for the applicant stated that the various irregularities on the face of the departure order render it of no force and effect and in counsel"s own words, "non-existent".
[24] Counsel for the applicant further alleged that the applicant [TRANSLATION] "implicitly had the status of a student because she made an application for an extension of her student status prior to the end of her student authorization, and the student status was confirmed by issuance of the CAQ and the student authorization valid until 31-12-97".
[25] In the alternative, counsel for the applicant alleged that if an "unconditional" departure order was validly made, respect for the rules of procedural fairness required a meeting with the applicant before such an order was issued, as she was eligible for a new authorization of the conditions of her stay, inter alia , under subsection 27(2.1), as confirmed by immigration officials who issued a new authorization for the period from January 1997 to December 1997.
[26] On the other hand, counsel for the respondent properly reminded us that the departure order, whether or not there was any irregularity or error, was an entirely normal order in the circumstances, as the senior immigration officer made a departure order against the applicant in accordance with subsection 27(4) of the Act.
[27] In accordance with subsection 28(1) of the Act, the departure order was conditional and was not effective unless one of the conditions set out in subsection 28(2) of the Act was satisfied:
28. (1) Where a senior immigration officer is of the opinion that a person who aims to be a Convention refugee is eligible to have their claim referred to
the Refugee Division and is a person in respect of whom the senior immigration officer would, but for this section, have made an exclusion order under subsection 23(4) or (4.01) or a departure order under subsection 27(4), the senior immigration officer shall make a conditional departure order against the person.
(2) No conditional departure order made pursuant to subsection (1) against a person who claims to be a Convention refugee is effective unless and until
| (a) the person withdraws the claim to be a Convention refugee . . . . |
28. (1) S'il conclut à la recevabilité de la revendication du statut de réfugié au sens de la Convention de la personne à l'encontre de laquelle il prendrait une mesure d'exclusion au titre des paragraphes 23(4) ou (4.01) ou une mesure d'interdiction de séjour au titre du paragraphe 27(4), l'agent principal prend contre elle une mesure d'interdiction de séjour conditionnelle.
(2) La mesure d'interdiction de séjour conditionnelle ne devient exécutoire que si se réalise l'une des conditions suivantes:
| a) la personne retire sa revendication du statut de réfugié au sens de la Convention . . . . |
[28] It cannot be denied that the applicant withdrew her claim for refugee status in a letter dated the same day the senior immigration officer decided that the applicant was eligible to have her claim determined.
[29] After it received this letter, the Convention Refugee Determination Division confirmed the withdrawal of the applicant"s claim on December 19, 1996.
[30] It was therefore in accordance with paragraph 28(2)(a) of the Act that the departure order made on December 11, 1996, became effective as a result of the withdrawal of the claim for refugee status.
[31] Counsel for the respondent argued that the applicant should have challenged the departure order made by the senior officer on December 11, 1996, rather than the counsellor"s letter of December 4, 1997, which, in the respondent"s view, is not a decision but simply an explanation of the applicable provisions of the Act.
[32] Counsellor Ms. Duval"s letter dated December 4, 1997, simply explains that because of the legislative provisions of subsection 44(1) of the Act, the applicant could not make a claim for refugee status.
[33] It is clearly not the counsellor"s responsibility to evaluate, vary or quash the departure order which appears in the file.
[34] It is equally clear that the departure order made on December 11, 1996, was not made by Ms. Duval, who signed the letter dated December 4, 1997.
[35] Counsel for the respondent alleged that Ms. Duval"s letter dated December 4, 1997, is not a decision reviewable by way of a leave application.
[36] Counsel for the respondent cited the decision of Mr. Justice McKeown in the Carvajal1 case, in which it is written:
| The applicants seek judicial review of a decision of Ms. Perreault and other unknown immigration officers dated December 2, 1992 denying the applicants permanent resident status. In the event the applicants are successful on the first judicial review, they seek a stay of the Board hearing scheduled as a result of the credible basis decision as they do not wish to proceed with the second judicial review. The respondent seeks dismissal of the second judicial review in any event. |
| I agree with the respondent that there is no decision on December 2, 1992. The document in question is an informational letter from Ms. Perreault, an immigration officer. Permanent residence status had been denied the applicant on June 26, 1987 because of the ineligibility of Mrs. Carvajal pursuant to paragraph 19(2)(d) of the Immigration Act. No judicial review of the June 26, 1987 decision has ever been requested. |
| In her letter of December 2, 1992, Ms. Perreault was just reminding the applicants of the June 26, 1987 decision wherein permanent residency status was not granted. She also was not a person authorized to refer a credible basis hearing to the Refugee Tribunal. Under the Immigration Act only the adjudicator or a member of the Refugee Board or both could refer the matter to the Refugee Tribunal. See Russo v. M.E.I., [1977] 1 F.C. 325 and subsection 43(4) of the transitional provisions in the Immigration Act. Furthermore an informational letter cannot be reviewed by way of certiorari. See Demirtas v. Canada (Minister of Employment and Immigration (C.A.)), [1993] 1 F.C. 602. There is no decision on December 2, 1992 to be reviewed. |
| (Respondent"s emphasis) |
[37] Counsel for the respondent also cited the Federal Court of Appeal in Demirtas,2 in which Mr. Justice Létourneau stated:
The appellant contended that the Trial Judge erred in law by describing the letter of July 11, 1990, from the Director of the C.I.C. to counsel for the respondents as a "decision" reviewable by certiorari, and I believe that he is correct. Even if I were to take a very open-minded approach, I am unable to see how we could describe a mere informational letter from an administrative official in which, in reply to a request made to him, he draws his correspondent's attention to the existence of transitional legislative provisions and to the fact that a new quasi-judicial body was already seized of the cases which the correspondent wished to have transferred, as a "decision", and moreover a decision which granted or denied rights. In addition, in the days preceding the exchange of correspondence between the Director and counsel for the respondents, the new Immigration and Refugee Board had already informed the respondents that it was seized of their claims and that it was preparing to set a date for hearing. If counsel for the respondents intended to challenge the Board's jurisdiction over his clients' claims, he should have done so by making an objection before the Board and not by making a request to an official to transfer
the files to another section.
(Respondent"s emphasis)
[38] After reviewing the file in detail and analysing the arguments of both parties, the Court must determine whether Ms. Duval"s letter of December 4, 1997 is a decision reviewable by way of an application for judicial review.
[39] In my view, it would be useful at this point to cite an article of doctrine which illustrates that the sending of a letter by an immigration officer is similar to the exercise of a limited power:
[TRANSLATION]
The person having the limited power makes a decision as soon as the citizen meets the objective conditions set in the Act or Regulations. The former has no choice as to the substance of the decision to be made when the objective conditions set by the legislator are met. The application of these conditions does not pose problems of either assessment or interpretation. The decision requires (little or) no judgment on the part of the decision-maker. Her or she does not make a decision which requires choices to be made In this regard, there is no real decision-making authority.
Licensing generally involves the exercise of a limited power. In the municipal context, for example, a renovation permit is issued as soon as the applicant meets the objective conditions set by the municipality. The agency seized of the application in such a situation has no freedom of choice in the decision to be made.3
[40] The Court accordingly finds that the letter from immigration officer Ms. Duval dated December 4, 1997, is not a decision reviewable by way of an application for judicial review.
[41] It is clear that the decision which could have been challenged in the circumstances is the departure order, on which the Court cannot rule as this was not the document which was challenged in the case at bar.
[42] For these reasons, the application for judicial review is dismissed.
[43] As neither counsel suggested a serious question of general importance, no question will accordingly be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
November 13, 1998
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5448-97
| STYLE OF CAUSE: AMINA NKUMBI V. MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 22, 1998
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATED: NOVEMBER 13, 1998
APPEARANCES:
JOHANNE DOYON FOR THE APPLICANT
DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS OF RECORD:
DOYON, GUERTIN, MONTBRIAND FOR THE APPLICANT
& PLAMONDON
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________1 Carvajal v. M.E.I. (1994), 82 F.T.R. 241 (F.C.).
2 M.E.I. v. Demirtas, [1993] 1 F.C. 602 (F.C.A.).
3 Collection de droit 1997-1998, Droit public et administratif, Volume 7, by Jean-Pierre Villagi, Cowansville, les Éditions Yvon Blais Inc., 1997, p. 24.