Date: 20000420
Docket: IMM-2023-99
Between :
MULAKH SINGH LEALH, domiciled and residing at
8615 Stuart, apartment 1, Montreal, Quebec, H3N 2S4,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, c/o Justice Department,
Guy Favreau Complex, 200 West René-Lévesque, East Tower,
5th Floor, Montreal, Quebec, H2Z 1X4,
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the March 31, 1999 decision of Claire Chabot, Post Claim Determination Officer, Citizenship and Immigration Canada, in which she found the applicant not to be eligible for membership in the Post-Determination Refugee Claimants in Canada (the PDRCC) class because he did not submit his application for consideration under the PDRCC class within the prescribed time.
[2] I dealt with the issues raised in this case in two decisions released on August 13, 1999: Bensalah v. The Minister of Citizenship and Immigration, IMM-4907-98 and Gill v. The Minister of Citizenship and Immigration, IMM-5202-98. In Bensalah and Gill, I concluded that the Immigration Regulations, 1978 (the Regulations) are within the scope of paragraph 114(1)(e) of the Immigration Act (the Act), that it is acceptable and reasonable for the Governor in Council to prescribe the time limit in paragraph 11.4(2)(b) of the Regulations, and that an immigration officer does not have the power to extend the prescribed time. The following passage appears in both Bensalah and Gill:
| In Adam v. M.C.I. (December 23, 1998), IMM-5090-97, my colleague Mr. Justice Nadon held that an immigration officer does not have the power to extend the prescribed time. Like him, based on Ponnampalam v. Canada (M.C.I.) (1996), 117 F.T.R. 294, Melinte v. Canada (M.C.I.) (1997), 134 F.T.R. 292 and Razavi v. Canada (M.C.I.) (1998), 144 F.T.R. 36, I also find that there is no discretion to extend the 15-day period prescribed by paragraph 11.4(2)(b) of the Regulations (see also Caron v. M.N.R. et al. (1996), 108 F.T.R. 137 and Miucci c. M.R.N. (1991), 52 F.T.R. 216). |
| Like Mr. Justice Nadon in Adam, supra, I certify the following question: |
| Does an immigration officer have the power to extend the time prescribed by paragraph 11.4(2)(b) of the Immigration Regulations for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class? |
| In the case at bar, given that the applicant has abandoned the constitutional questions, there is no need to certify additional questions regarding the application of the Canadian Charter of Rights and Freedoms as Nadon J. did in Adam, supra. |
| As to whether paragraph 11.4(2)(b) of the Regulations is beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Act confers on the Governor in Council, counsel for the applicant " unable to refer to any authorities or decisions confirming that the provision at issue is ultra vires " simply argued that there is no specific period under paragraph 114(1)(e ) of the Act in which an application may be submitted and that paragraph 11.4(2)(b) of the Regulations is inconsistent with the humanitarian objectives of the Act. |
| First, it is important to recall that there is a presumption that regulations are consistent with the limits set by the enabling legislation (see P.-A. Côté, The Interpretation of Legislation in Canada, 2d ed., Cowansville, Les Éditions Yvon Blais Inc., 1990, at pages 309-310). Second, as the Supreme Court of Canada noted in Chiarelli v. Canada, [1992] 1 S.C.R. 711, at pages 733 and 734: |
| . . . The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. . . . |
| Thus Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. . . . |
| Last, in Jafari v. Canada (M.E.I.), [1995] 2 F.C. 595, the Federal Court of Appeal set out the general principles governing a determination as to whether delegated legislation such as a regulation is within the authority granted by the enabling legislation. Those principles can be summed up as follows: |
| - It is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court's policy preferences; |
| - The essential question is: does the statutory grant of authority permit this particular delegated legislation? |
| - In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation; |
| - Any limitations, express or implied, on the exercise of that power must be taken into account; |
| - One must look to the regulation itself to see whether it conforms; |
| - Where it is argued that the regulation was not made for the purposes authorized by the statute, one must try to identify one or more of those purposes for which the regulation was adopted; |
| - A broad discretionary power, including a regulation-making power, may not be used for a completely irrelevant purpose; |
| - It is up to the party attacking the regulation to demonstrate what that illicit purpose might be; |
| - One must look to the statutory basis for the regulation in question; |
| - The regulations must be seen as in some way related to the purpose of the Act; |
| - One must verify whether the paragraph was made for purposes of the administration of the Immigration Act; |
| - The main purpose of the regulations cannot be to achieve some improper and unauthorized purpose; |
| - Assuming that the regulations are prima facie authorized by the statute, one must consider whether they are contrary to some condition imposed on the exercise of the regulation-making power. |
| Taking into account all of the above principles, and considering that Parliament's objectives are to be assessed based on the Act and Regulations as a whole, and that the Regulations in question are a departure from the norm by operation of subsection 6(5) of the Act, I am of the view that the power to establish the procedure for considering applications for a determination of whether the applicant is a member of a class includes the power to prescribe the time within which to submit an application, and that in the case at bar, it is a procedural matter. The Regulations are within the scope of the enabling provisions, i.e., subsection 6(5) and paragraph 114(1)(e) of the Act. In addition, the prescribing of time has proved essential to the proper administration of the Immigration Act, particularly with respect to the Minister's duty to enforce removal orders as soon as circumstances allow. Given the nature of these applications and the fact that applicants are under an effective removal order and wish to be recognized as members of the PDRCC class, in the context of this departure from the norm where applicants are requesting an exceptional privilege, not a right, in my opinion it is entirely acceptable and reasonable for the Governor in Council, there being nothing forbidding it, to have prescribed the time under paragraph 11.4(2)(b) of the Regulations. |
| With respect to this question regarding the ultra vires character of paragraph 11.4(2)(b) of the Regulations, I agree to certify the following question, the text of which counsel for both parties accept: |
| Is paragraph 11.4(2)(b) of the Immigration Regulations beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Immigration Act confers on the Governor in Council, in that it prescribes the time for submitting an application for a determination of whether the applicant is a member of the post-determination refugee claimants in Canada class for the purposes of subsection 6(5) of the Act? |
| Therefore, subject to the above certification of two questions, the application for judicial review is dismissed. |
[3] Accordingly, subject to the certification of the following question, the application for judicial review in the case at bar is dismissed. As there was no request to extend the time limit prescribed in paragraph 11.4(2)(b) of the Regulations for submitting an application for a determination of whether the applicant is a member of the Post-Determination Refugee Claimants in Canada class, only the following question deserves to be certified:
| Is paragraph 11.4(2)(b) of the Immigration Regulations, 1978 beyond the scope of the regulation-making powers that paragraph 114(1)(e) of the Immigration Act (the Act) confers on the Governor in Council, in that it prescribes the time for submitting an application for a determination of whether the applicant is a member of the Post-Determination Refugee Claimants in Canada class for the purposes of subsection 6(5) of the Act? |
Given the circumstances, the applicant's additional argument based on section 7 of the Canadian Charter of Rights and Freedoms, absent a notice pursuant to section 57 of the Federal Court Act, is purely academic.
JUDGE
OTTAWA, ONTARIO
April 20, 2000