Date: 20010425
Docket: IMM-308-00
Neutral Citation: 2001 FCT 386
Between:
Natasha Veliaj, Arber Veliaj, Stela Veliaj,
Arben Aleksi, Gentiana Aleksi,
Applicants
- and -
The Minister of Citizenship and Immigration,
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 a Post Claim Determination Officer ("PCDO") dated January 17, 2000, in which the officer refused the applicant's PDRCC application because of late filing.
2. Statement of Facts
[2] The applicants are members of the same family and are citizens of Albania. The principal applicant, Natasha Veliaj, was born on August 7, 1950 and is the mother of two daughters, Gentiana Aleksi (née Veliaj), born February 26, 1973, and Stela Veliaj, born March 14, 1978, and of one son, Arber Veliaj, born May 25, 1984. The applicant Gentiana Aleksi is married to the applicant Arben Aleksi, born October 22, 1966.
[3] In 1996, the principal applicant, Natasha Veliaj, her son, Arber Veliaj, her daughter, Grentiana Aleski, and Gentiana's husband, Arben Aleksi, came to Canada and claimed Convention refugee status. Stela Veliaj also came to Canada to initiate a refugee claim in 1997. The applicants' refugee claim was based on their fear of persecution resulting from their perceived political opinion and membership in a particular social group, the extended family of Axhem Veliaj, who was formerly a police officer and a member of the Communist Party in Albania.
[4] The refugee claims were heard together on August 28 and September 15, 1998. Negative decisions were rendered on November 13, 1998, based on a change in circumstances in Albania. The negative decision was mailed to the applicants by Notice of Decision dated November 20, 1998. The applicants claim to have received the decision on December 1, 1998, however, the evidence on this point is not clear and the date has changed since the start of this action.
[5] The applicants met with a new solicitor, Mr. Thomas Zweibel, on or about Sunday December 6, 1998. In addition to informing them about their right to seek judicial review of the CRDD's decision, Mr. Zweibel informed them of their right to seek a risk assessment under the PDRCC class. The applicants paid Mr. Zweibel to undertake their appeal and their PDRCC application. They were concerned about the deadlines for filing, but Mr. Zweibel assured them that he would file the necessary documents on time.
[6] Mr. Zweibel advised the applicants that the completed PDRCC application forms had to be sent within 22 days after December 1, 1998, and he had the applicants sign the forms on December 16, 1998 and submitted the forms on December 18, 1998.
[7] Under paragraph 11.4(2)(b) of the Immigration Regulations, 1978, an application to seek a risk assessment under the PDRCC program must be submitted "not later than 15 days after the day the person is notified of the determination by the Refugee Division." In the PDRCC form prepared by the Immigration Commission, the following notice provision is set out:
To obtain a review of your case you are required by immigration regulations to apply within 15 days of the date on the notice of decision of the refugee division. As we allow 7 days for mailing of the Refugee Division decision, you have in effect 22 days from the date indicated on the notice of decision by the Refugee Division. Fill out and send the enclosed application from within the 22 days. The post mark of your application will determine if you complied with this prescribed time frame...
[8] Based on what he told the applicants, it is apparent that Mr. Zweibel relied upon the wording of the Immigration Regulations. Based on his understanding that the applicants had received notification of the negative CRDD decision on December 1, 1998, he understood that 15 days started on December 2, 1998 and went to December 16, 1998. However, it is also apparent from what he told the applicants that he concluded that the applicants had 22 days from the time of notification. He told the applicants that having received notification of the CRDD decision on December 1, 1998, they had until December 23, 1998 to submit the PDRCC applications.
[9] When the applicants completed and signed the PDRCC application forms on December 16, 1998, they believed that counsel had correctly interpreted the PDRCC regulation and that the forms would be sent within the prescribed time period. Moreover, after the PDRCC applications were submitted, there was no indication from the PCDO that the applications had been submitted late until the negative decisions were received in January, 2000.
[10] Section 11.4(3)(b) of the Immigration Regulations, 1978 states:
11.4(3) A person, other than a person referred to in any of subparagraphs (a)(i) to (vii) of the definition "member of the post-determination refugee claimants in Canada class" in subsection 2(1), may make written submissions to an immigration officer respecting any of the matters referred to in paragraph (c) of that definition. The submissions must be received by an immigration officer before
(b) in the case of a person who submits an application for a determination referred to in paragraph (2)(b), the later of the end of a period of 30 days after the day the person submits the application and the day the immigration officer makes the determination.
[11] On January 19, 1999, Mr. Zweibel sent written submissions to support the applications. The submissions consisted primarily of handwritten statements by the applicants, supplemented by several articles from the Albanian Daily News.
[12] In September, 1999, the applicants retained another lawyer, Raoul Boulakia, to assist them because they had not yet received an answer to the PDRCC applications. On November 11, 1999, Mr. Boulakia filed submissions on behalf of the applicants which included a specially-commissioned report by an academic authority on post-Communist Eastern Europe which substantiated the applicants' claim of a personalized risk of persecution despite the change in country conditions.
[13] On January 20, 2000, all five applicants received letters dated January 17, 2000, from PCDO, J. Graham, informing them that their PDRCC applications had been refused because their applications had not been post-marked in time. Specifically, that their Notice of Decision of failed refugee claims was dated November 20, 1998, whereas the PDRCC applications were postmarked December 18, 1998, more that 22 days after the date on the Notice of Decision by the CRDD.
3. Issues
a. Did the applicants comply with the requirements of paragraph 11.4(3)(b) of the Immigration Regulations by having signed their PDRCC application forms within 15 days of having been notified of the CRDD's decision, and by having submitted their PDRCC application forms to the PCDO within 22 days of having been notified of the CRDD's decision; and
b. Alternatively, did the applicants' solicitor's reliance on the incorrect and misleading information provided by the respondent on the PDRCC form, combined with the PDCO's failure to notify the applicants immediately that their application had been received late, and the PDCO's tacit agreement to accept submissions eleven months after the 15 day limitation had passed, create legitimate expectations that the applications for a PDRCC risk assessment would be duly processed and considered on the merits, and not be deemed a nullity ab initio due to late filing.
4. Applicant's Submissions
a. Application Filed Within the Prescribed Time
[14] The Federal Court of Appeal recently discussed the time limits of paragraph 11.4(2)(b) in Adam v. M.C.I.[1] The Court noted that "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."
[15] The applicants submit that the date of notification, not the date of the notice of decision, is the correct date for starting the 15 day limitation period, and that Mr. Zweibel's understanding of the instructions on the PDRCC form is correct. He understood that the applicants were granted an additional seven days to allow for mailing the PDRCC application, so that from the date of notification they had 22 days to send in the PDRCC application. The applicants received notification of the decision on December 1, 1998 (???), they signed the forms within 15 days, on December 16, 1998, and the forms were submitted on December 18, 1998, and marked received on December 22, 1998.
[16] The applicants submit that this is a logical interpretation of the Regulation and of the PDRCC form because of the uncertainty of mail service. If the intention were to allow a maximum of seven days for receipt by mail, the instruction form would violate the notice provisions of the legislation. In this case the applicants received notification of the decision on December 1, 1998 (???), more than seven days after November 20, 1998, so if the PDRCC instruction form were correct, they would have less time to submit their PDRCC application than the time permitted by the legislation. Furthermore, because the PDRCC form contemplates submitting the application by mail rather than by personal services or by courier, the additional seven days seems to allow for the lack of mail delivery and post-marking on weekends and holidays.
[17] If Mr. Zweibel's interpretation be incorrect, and if the applicants are deemed to have received the notice on or before November 27, 1998, then according to the PDRCC form, they ought to have submitted their PDRCC application forms by mail on or before December 12, 1998. Because December 12, 1998 was a Saturday, they would have had to have submitted the forms on or before Friday December 11, 1998, to ensure that they would be post-marked within 22 days of the date of the CRDD's decision. By operation of the PDRCC instruction form, the applicants would have lost five days from the legislated notice provision because they would have had only from December 1, 1998, the date they received the decision, until December 11, 1998 to mail the PDRCC applications. The applicants submit that the PDRCC instruction form must be consistent with the notice provisions of the Regulations which are fair because they account for the problems of mail service.
[18] The applicants also submit that by signing the PDRCC applications within 15 days of notification of the CRDD's decision as specified in the Regulations, and by submitting their applications within 22 days after the notification of the decision, they complied with the time limits and the PDRCC applications should have been deemed eligible and considered on the merits by the PCDO.
b. Legitimate Expectations
[19] Alternatively, the applicants submit that the error by Mr. Zweibel can be attributed to the confusing and erroneous information provided in the PDRCC instruction form. The applicants submit that because the respondent provided the confusing information, the applicants had a legitimate expectation that their applications would be considered on the merits. If there had been no instruction on the form, Mr. Zweibel would have relied solely upon the legislation, as he did in the case for the filing of the application for leave and for judicial review. If there had been no special mailing instructions, it may be presumed that he would have arranged to serve the PDRCC applications within 15 days of the notification of the CRDD's decision, on or before December 16, 1998.
[20] The applicants also submit that by not advising them until January 17, 2000 that their PDRCC applications would not be considered because of late filing, the PCDO raised legitimate expectations that the applications would be processed and considered. If the applicants had known that their applications would have been rejected simply because of late submissions, they would not have instructed their new lawyer to make further submissions on November 11, 1999.
[21] It is well established that the doctrine of legitimate expectation cannot create substantive rights, rather it creates procedural rights. Mr. Justice Gibson, in rejecting an application for leave and for judicial review of a decision made by an immigration officer in Perez v. M.C.I.[2], held that no evidence of an express promise given on behalf of the respondent, a public authority, was before the Court. The applicants submit that the respondent Minister made an express promise in the form of erroneous and confusing instructions that accompanied the PDRCC application. The respondent also made positive representation to the applicants new counsel by accepting the written submissions and documents.
[22] In Arias v. M.C.I.[3], Mr. Justice Nadon was asked to decide whether an alleged promise by an immigration officer to recommend a Minister's permit constituted a legitimate expectation that a claimant could remain in Canada. He stated:
There is no support in Canadian or English cases for the position that the doctrine of legitimate expectation can create substantive rights. It is a part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can create a right to make representations or to be consulted. It does no fetter the decision following the representation or consultation.
[23] The applicants submit that their counsel followed the instructions in a manner which was consistent with the legislation. The submissions were accepted by the respondent after the 15 day deadline had passed. There was no indication that the submissions were unwelcome or would never be considered. The PCDO did not fetter any decision following the representations or consultation, rather, the PCDO retroactively cancelled the applicants' right to make representations or to be consulted after accepting submissions.
[24] In Owusu-Baidov v. Canada[4], Mr. Justice Cullen, citing Dermitas v. M.E.I., stated:
The Court of Appeal held that the doctrine of legitimate expectation did not operate because the Minister's announcement [in a press release] did not amount to a promise by an administrative authority. Further, the court held that the doctrine could not operate in the face of a statutory bar to actions or procedure promised to the applicant.
[25] The applicants submit that the confusing form, combined with the acceptance of the submissions eleven months after the limitation period, constituted a promise by an administrative authority to the applicants that the submissions would be considered. The PCDO therefore raised legitimate expectations that the application would be processed and considered on the merits.
[26] In Melinte v. M.C.I.[5], Mr. Justice Gibson dismissed an application for judicial review of a decision by an immigration officer refusing to extend a 120-day limitation period. Gibson J. reviewed the case law and cited the reasons of Associate Chief Justice Jerome in Mumin v. M.C.I., a case where an applicant had been given erroneous information by an immigration officer and had relied on this incorrect information to his detriment. Jerome A.C.J. stated:
The respondent's only answer to Mr. Mumin's argument is that the Immigration Officer was within his right to rely on the strict provisions of the Immigration Act and the regulations. However, it is now recognized that in cases of this nature, a public authority abuses its discretionary power when it exercises it in a manner which causes an injustice to the individual while at the same time providing no benefit to the public. The courts are entitled, under circumstances such as these, to weigh the harm to the applicant against the public interest. There is nothing to be gained here and no benefit to the public is to be served by compelling the applicant to bear the consequences of the erroneous and incomplete information given to him by the respondent and upon which he honestly relied to his detriment.
[27] The applicants submit that this passage is applicable to the case at bar. There is no compelling public policy reason to force the applicants to bear the consequences of erroneous information from the respondent upon which they relied to their detriment. Furthermore, no public policy reason exists to weigh the harm to the applicants against the public interest. The applicants submit that they have a substantive right to a risk assessment before being removed from Canada.
5. Respondent's Submissions
[28] The respondent notes that four of the five applicants have sworn affidavits in support of this application, but that none of them has said exactly when they received the CRDD's negative decision in this case. The evidence of the applicant Natasha Veliaj is that the applicants were notified of the CRDD's decision about a week after November 20, 1998. However, in the application for leave to review the CRDD's decision, the applicants indicated that they were notified of the negative decision on December 1, 1998. The applicants were required under the PDRCC Regulations to file a PDRCC application within 15 days after having been notified of the negative decision. The application for consideration under the PDRCC program was filed on December 18, 1998. The respondent submits that the applicants did not have a legitimate expectation that the PDRCC application would be considered even though it was submitted late. (Paragraphs [4] and [8] ante are noted.)
a. No Jurisdiction to Extend the PDRCC Deadline
[29] The respondent submits that the Adam decision cannot be distinguished from the case at bar and that the Federal Court of Appeal concluded that no discretion exists for a PCDO to extend time limits. Following the reasoning in Adam, this application should be dismissed. (Paragraph [14] ante is noted.)
b. Legitimate Expectations
[30] The respondent submits that no basis exists in the record to support that the applicants had a legitimate expectation that their application would proceed. The respondent submits that it is impossible, using the record before the Court, to conclude that anyone on behalf of the respondent has by words or conduct made a clear and unequivocal representation of fact that a certain representation was intended to be acted on.
[31] The applicants argue that because of the time lapse between the late filing and the refusal, and because their solicitors filed supplementary materials in the interim, that there has been a representation that the 15-day deadline would not
apply. The respondent submits that this proposition is neither supported in law or on the facts of this case. It is an absurd result to assume that by receiving the submissions, the respondent promised to waive the deadline imposed by regulation. This suggests that any deadline can be extended by sending submissions to the respondent.
[32] In Adam, the Federal Court of Appeal held that no legal basis exists to extend a PDRCC deadline. The doctrine of legitimate expectations cannot empower an immigration official to do what would otherwise be illegal.
6. Remedies
[33] The applicants request that the decision of the PCDO be set aside and that the matter be referred back for determination on the merits.
[34] The respondent requests that this application be dismissed The applicants would be pleased if this judge were invested with all the powers of that ancient judge, King Solomon, but such is not the fact. As noted in paragraph [32] supra no legal basis exists to extend the deadline as it is fixed. This is not a case for costs.
O R D E R
This application for judicial review of a Post Claim Determination Officer's decision, dated January 17, 2000, declining to accept the applicants' PDRCC application because of late filing, be and it is hereby dismissed without costs.
Judge