Date: 20001220
Docket: IMM-5879-98
BETWEEN:
QUING BING LI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The Applicant in the present case brings this judicial review to challenge the decision of a Post-Determination Claims Officer who found the Applicant was out of time to obtain a review of his immigration status under the PDRCC class.
[2] The application concerns the following two statutory provisions:
Immigration Regulation 11.4(2)(b) states as follows:
| For the purposes of subsection 6(5) of the [Immigration Act], a person whom the Refugee Division |
| ... |
| (b) on or after May, 1, 1997, has determined is not a Convention Refugee and who intends to apply for landing as a member of the post-determination refugee claimants in Canada class shall submit an application for a determination of whether the person is a member of that class to an immigration officer not later than 15 days after the person is notified of the determination by the Refugee Division. [Emphasis added] |
Section 2(4)(b) of the Immigration Act states as follows:
| 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)... 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. |
[3] In the present case, I find as a fact that the Applicant received his notice on September 23, 1998, and as he filed his application to obtain a review on October 8, 1998, I find he filed within the time limit set out in Regulations 11.4(2)(b).
ORDER
[4] Accordingly, I set aside the Post-Determination Claims Officer's decision.
[5] In the course of oral argument, counsel for the Applicant, Mr. Doug Cannon, asked that I make special note in these reasons that the form notice which was sent in the present case, and is still being used, does not conform with the provisions set out above.
[6] Paragraph 3 of the standard form notice entitled "Application for Consideration Under the Post-Determination Refugee Claimants in Canada (PDRCC) Class - Important Notice" states as follows:
| 3. How do I apply? |
| 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 form within these 22 days. The post mark of your application will determine if you complied with this prescribed time frame. As an example, if the date of the notice of decision of the Refugee Division is September 1st, you have the next 22 days to mail your application. The last day to mail your application will be the 23rd of September. |
| Please ensure that a copy of the notice of decision of the Refugee Division accompanies your application. You should also, if possible, provide proof of your identity such as a copy of birth certificate, passport, travel document, etc. |
| If you wish to make submissions in support of your application, you have 30 days from the date of this application to do so. After this 30 day period, the immigration officer can make a decision on your case. |
[7] I agree that the notice does not conform with the provisions, and I also agree that efforts should be made to correct the defects.
[8] As a member of the Canadian Bar Association, Immigration Law Subsection, Mr. Cannon agreed that a re-draft of the notice might be the subject matter of a consultation with members of the Immigration Law Subsection, and offered to assist in facilitating this result if so requested. I believe that taking up the offer would be a most useful exercise.
(Sgd.) "Douglas Campbell"
Judge
Vancouver, B.C.
December 20, 2000