Date: 19990518
Docket: IMM-771-98
OTTAWA, ONTARIO, MAY 18, 1999
PRESENT: MR. JUSTICE TEITELBAUM
BETWEEN:
PAVEL PIDASHEV
RUSLAN PIDASHEV
Applicants
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
O R D E R
For the reasons set out in the Reasons for Order, the application for judicial review is dismissed.
Max M. Teitelbaum
J.F.C.C.
Certified true translation
Peter Douglas
Date: 19990518
Docket: IMM-771-98
BETWEEN:
PAVEL PIDASHEV
RUSLAN PIDASHEV
Applicants
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
INTRODUCTION
[1] This is an application for judicial review of the Citizenship and Immigration Canada decision of January 31, 1998, by which an officer informed Maria Pidasheva that her application for permanent residence as a "member of the deferred removal orders class" was refused on the ground that she did not satisfy paragraph 11.401(f ) of the Immigration Regulations, 1978 because her husband, Pavel Pidashev, had been convicted of an offence referred to in paragraph 27(2)(d) of the Immigration Act.
[2] That decision gave rise to two applications for judicial review: one by applicants Pavel and Ruslan Pidashev, father and son, in this matter, docket IMM-771-98; the other by applicant Maria Pidasheva, wife and mother of applicants Pavel and Ruslan, in docket IMM-637-98. The Court heard these matters one after the other. However, this decision deals only with the applicants" arguments in docket IMM-771-98.
FACTS
[3] Applicant Pavel Pidashev, born in 1950 in the Ukraine, came to Canada on October 18, 1992, and claimed refugee status. He later applied for permanent residence as a "member of the deferred removal orders class" (the DROC program) but was turned down on March 24, 1997, because three years had not elapsed since the Refugee Division determination. He became eligible on April 18, 1999.
[4] On May 1, 1997, the DROC program came to an end. On December 1, 1997, Mr. Pidashev was convicted of an offence under paragraph 253(b) of the Criminal Code.
[5] Ruslan Pidashev was born on August 13, 1976, in the Ukraine. By letter dated September 25, 1996, Citizenship and Immigration Canada informed him that his application for permanent residence under the DROC program would be processed but that he would have to satisfy all the requirements of the Immigration Act. The letter specified inter alia that he did not satisfy the employment criteria, as he had not been employed for a period of six months.
[6] On January 31, 1998, Citizenship and Immigration Canada notified Maria Pidasheva that her application for permanent residence was refused on the ground that her dependant husband had been convicted of an offence under the Criminal Code.
REPRESENTATIONS
Applicants"representations
[7] Applicant Pavel Pidashev submitted that he had a vested right to landing before December 1, 1997, when he was convicted of an offence under the Criminal Code, and that the Deputy Minister was therefore required to cause an inquiry to be held under the Immigration Act.
[8] Applicant Ruslan submitted, for his part, that despite Pavel Pidashev"s conviction dated December 1, 1997, he and his mother should have been granted landing automatically since they satisfied all the conditions of the DROC program. In addition, he submitted that he could not be refused landing solely on the ground that his father had been convicted of a criminal offence.
[9] The applicants also submitted that paragraph 253(b) of the Criminal Code, section 2 of the Criminal Code (which defines the municipal court of Montreal as a court of criminal jurisdiction) and the Federal Court Act were invalid because of their unconstitutional origins, having allegedly been enacted by an unconstitutionally formed Parliament. Counsel for the applicants dropped this submission.
Respondent"s representations
[10] The respondent submitted that the applicants" arguments were unsound and without merit. I agree with the respondent"s arguments, which are for the most part repeated in the following analysis.
ANALYSIS
[11] The applicants" main argument is largely based on the premise that they had a vested right to landing before the DROC program was terminated and before applicant Pavel Pidashev was convicted.
[12] As the respondent pointed out, that argument is unsound. The affidavit of Peter Chiu and the attached exhibits show that the applicant was accused on May 2, 1996, of committing the offence described in paragraph 253(b) of the Criminal Code, of which he was convicted on December 1, 1997. Maria Pidasheva signed her application for residence under the DROC program on June 20, 1996, over a month after charges had been brought against her husband.
[13] As the respondent said, Citizenship and Immigration Canada is not required to decide an application for landing before judgment is given on counts against a dependant or spouse. In addition, the Federal Court has had occasion to examine the scope of the DROC program and to determine that the DROC program does not create legitimate expectations regarding permanent residence: Singh v. Canada (M.C.I.) (IMM-1083-96, October 23, 1997); Huseyinov v. Canada (M.E.I.), (1994) 174 N.R. 233 (F.C.A.); Alexander v. M.C.I., (1996) 115 F.T.R. 258 (F.C.A.).
[14] In Singh, supra, Mr. Justice Jerome summarized the established principles at paragraphs 6 et seq.:
| These attacks assume that the DROC regulation creates a substantive right. However, in two recent decisions, our Court has addressed that very question and reached the opposite conclusion. In Darmantchev v. Canada (Minister of Citizenship and Immigration), (1995) 32 Imm. L.R. 65, Mr. Justice Wetston determined that individuals are not entitled to become members of the DROC but that they must be accepted as such following a selection process: |
| It is my opinion that, in this case, there is no duty, express or implied, that arises from the scheme of the Immigration Act and its regulations. Section 48 of the Immigration Act requires that a removal order be executed as soon as reasonably practicable. The purpose of the DROC regulations is not to confer a substantive right or benefit on certain failed refugee claimants, rather, it is to provide the Minister with an improved and more effective method of resolving cases of certain failed refugee claimants who have not been removed over several years. By virtue of section 48 of the Immigration Act, the Minister is under a legal obligation to remove. (supra at 68) |
| Mr. Justice MacKay in Alexander v. Canada (Minister of Citizenship and Immigration), (1996) 115 F.T.R. 218, dismissed a similar motion where the applicants had three months to go before becoming eligible for consideration under the DROC regulation. He cited Darmantchev and continued: |
| The applicants here do not have a right to remain in Canada simply because they are close to qualifying under the DROC regulations. Those regulations provide that a person is eligible to be a member of the DROC only where he or she meets certain criteria, including the requirement that an applicant reside in Canada for three years following refusal of his or her refugee claim. The applicants here do not comply with that criterion and cannot, therefore, be said to have any right to remain in Canada through the application of those regulations, or any others. Nor, as noted above, have the applicants here demonstrated any unfairness in the process here followed. Although the applicants argue it is unfair to remove them at a time when they are close to becoming eligible for the DROC, I am bound by the requirements of the DROC regulations adopted in accord with the statute as enacted by Parliament. The determination of the length of time necessary to reside in Canada to qualify as a member of the DROC class is a matter established by the legislative process and not one for this Court. Thus, since the applicants admittedly have not met the requirement of the DROC regulations, there is no basis on which this Court could intervene in regard to the decision not to cancel or to defer their removal. (supra at 262) |
| In the case at bar, the applicants have not met the threshold test at paragraph (d)(i)(C) since their last stay expired less than three years ago. As a result, they were never eligible for consideration as members of the DROC, as stated in the March 5, 1996 decision under review. |
This application for judicial review is therefore dismissed.
[15] It is therefore incorrect to claim that the applicants had a vested right to landing simply because they had applied for residence under the DROC program. On the contrary, in fact, the facts in the case at bar show that applicant Pavel Pidashev was ineligible for the program when it ended on May 1, 1997, as he did not become eligible until April 18, 1999. With respect to applicant Ruslan Pidashev, the documents he submitted"a letter dated September 25, 1996, attached to his affidavit"also show that he too did not satisfy all the requirements, as he had not been employed for a period of six months.
[16] Nor can it be claimed, in my view, that the officer erred in the application of the Immigration Act or Regulations, since the power in question was non-discretionary, as the respondent suggested. Thus, the officer who issued the impugned decision had no discretion in evaluating Maria Pidasheva"s application for residence. The officer was required to ascertain whether the person applying for landing met the conditions listed in the regulations: Bermanesh v. Canada (M.C.I.) , (1997) 40 Imm. L.R. (2d) 301; Melinte v. Canada (M.C.I.), (1997) 134 F.T.R. 292; Ponnampalam v. Canada (M.C.I.), (1996) 117 F.T.R. 294.
[17] With respect to the alleged unconstitutionality of the laws enacted by the Parliament of Canada, including the Criminal Code and the Federal Court Act, as I already said, counsel for the applicants dropped that submission.
CONCLUSION
[18] This application for judicial review is dismissed.
QUESTION FOR CERTIFICATION
[19] Counsel for the respondent requested certification of some questions under subsection 83(1) of the Immigration Act.
[20] Given that I have dismissed the application for judicial review and that the applicants have not requested certification of a question but merely agreed to the certification of some of the questions the respondent put forward, there is no need to certify any questions for the Federal Court of Appeal.
Max M. Teitelbaum
| J.F.C.C. |
Ottawa, Ontario
May 18, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-771-98
STYLE OF CAUSE: PAVEL PIDASHEV, RUSLAN PIDASHEV v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 28, 1999
REASONS FOR ORDER OF TEITELBAUM J.
DATED MAY 18, 1999
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANTS
MICHÈLE JOUBERT FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA