Ottawa, Ontario, February 1, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
HUSNAH MOHAMMED AL MASHTOULI, AHMAD MAHMOUD JABALLAH AND ASH-SHAYMAA ES-SAYJID JABALLAH, AL-MUNZIR ES-SAYJID JABALLAH AND AFNAN MAHMOUD ES-SAYJID JABALLAH, by their Litigation Guardian HUSNAH MOHAMMED AL MASHTOULI
and
ANDIMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] A panel of the Immigration and Refugee Board declared the applicants to be refugees in 2003. They then applied for permanent residence. In 2005, an immigration officer rejected their application because it had not been received within the 180-day period set out in the Immigration and Refugee Protection Regulations, SOR/2002-227, s. 175(1).
[2] The applicants argue that the officer made errors of both fact and law, and treated them unfairly. They ask me to order the respondent to process their application for permanent residence within a specific time frame, instead of simply remitting it to another officer. I agree that this application for judicial review must be allowed, but I would not go so far as to grant the full relief that the applicants seek.
I. Issue
[3] The applicants raised numerous arguments in their favour. However, because I have concluded that the applicants should succeed on a single issue, I will confine myself to it:
Did the officer err in finding that the applicants' application for permanent residence should be rejected because it was received outside the 180-day period?
[4] This being a question of mixed fact and law, I can overturn the officer's decision only if I find that it was unreasonable.
II. Factual Background
[5] The Immigration and Refugee Board granted the applicants refugee status on April 10, 2003. On September 15, 2003, they submitted their application for permanent residence, a month before the 180-day deadline set out in s. 175(1) of the Immigration and Refugee Protection Regulations (relevant enactments are set out in an Annex). They heard nothing from Citizenship and Immigration Canada (CIC) until July 6, 2004 after their counsel had made inquiries about the status of the application. This July 2004 correspondence from CIC contained a letter dated November 20, 2003 informing the applicants that their application was missing a signature. The applicants were asked to re-submit the application before February 20, 2004, which was five months earlier and, obviously, an impossible deadline.
[6] It appears that, in addition to omitting a signature from one part of the application form (it was signed in an adjacent section of the form), the applicants had made an error in their address. Their unit number was off by one digit. So, when CIC attempted to send the application to be properly signed, Canada Post returned it to CIC because of the incorrect address. It was re-sent to the applicants, along with the November 20, 2003 letter, in July 2004.
[7] After they received the notice that their application had to be signed again, the applicants re-submitted it on August 6, 2004. The applicants' counsel made numerous subsequent inquiries to determine the status of the application but heard nothing until he received a letter dated February 10, 2005, which contained the decision here under review - a refusal to grant the applicants permanent residence because the application was received late.
III. Legal Parameters
[8] The Immigration and Refugee Protection Regulations set out the required contents of applications for permanent residence. For present purposes, the following are most relevant:
· an application must be signed (s. 10(1)(b));
· an application must contain the name, birth date, address, nationality and immigration status of the applicant and all family members of the applicant (s. 10(2)(a));
· an application must include a declaration that the information contained in it is complete and accurate (s. 10(2)(d));
· applications that do not comply with the regulatory requirements must be returned to the applicant (s. 12).
IV. Analysis
[9] The officer determined that the applicants failed to submit their application within the 180-day time limit under the Regulations. The respondent argues that the officer's decision was correct because the applicants' fully completed application was not submitted until August 2004, a full ten months after the deadline.
[10] By the respondent's reasoning, the document that the applicants submitted in September 2003 was not an "application" because it was missing a signature. Further, the section of the form the applicants failed to sign was the declaration as to completeness and accuracy. Accordingly, the application did not contain the required declaration. The respondent's position, therefore, is that the applicants did not actually submit an "application" until August 2004, well past the deadline, when they filed a fully completed document.
[11] In my view, the respondent's submission is not supported by the Regulations, CIC's own policies or the principles underlying the Act. The Regulations set out the 180-day deadline (s. 175(1)), but they do not stipulate that incomplete applications that are submitted on time should be rejected. On the contrary. Section 12 of the Regulations simply says that incomplete applications should be returned to the applicants. Had the Governor-in-Council intended that incomplete applications be rejected entirely, it would have said so. Indeed, it did say just that in relation to sponsorship applications. A deficient sponsorship application is "considered not to be an application filed in the prescribed manner" (s. 10(6)). There is no similar provision for applications for permanent residence.
[12] According to CIC's policies, incomplete applications, including those that are unsigned, should be returned to the applicant along with an instruction telling the applicant to re-submit it within 90 days (Policy 9.2 in P4 Processing Protected Persons' in-Canada Applications for Permanent Resident Status). As such, CIC does not interpret the Regulations in the manner suggested by the respondent.
[13] Among the objectives of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, are the following:
| Objectives - refugees 3.(2) The objectives of this Act with respect to refugees are (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; ...
(e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings; |
Objet relatif aux réfugiés 3.(2) S'agissant des réfugiés, la présente loi a pour objet : a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution;
[...]
e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d'une part, de l'intégrité du processus canadien d'asile et, d'autre part, des droits et des libertés fondamentales reconnus à tout être humain; |
[14] In my view, the respondent's interpretation of the Regulations would be at odds with these objectives.
[15] Accordingly, in my view, the officer made a reviewable error in concluding that the applicants' application for permanent residence should be rejected for having been filed late.
V. Disposition
[16] The applicants have asked me to issue an order of mandamus requiring the respondent to process their application within a particular time frame. I am not satisfied, at this point, that an order in that form is necessary. The respondent's position before me was that, if the point of law discussed above was settled in the applicants' favour, their application would be processed. On that assumption, I will not issue a mandamus order at this point in time. Rather, I will adjourn the applicants' request for one year. If their application has not been processed by that date, I will reconsider the need to set a deadline. I take the same position regarding the applicants' request for costs. The applicants' request is adjourned for one year and, if their application has not been processed by then, I will consider the issue of costs at that point.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed and the matter is remitted to a different officer for reconsideration.
2. The application for mandamus is adjourned for one year. Should the application for permanent residence status not be processed within that time frame, the Court will reconsider the need to set a deadline;
3. The applicants' request for costs is also adjourned for one year and will be considered only if the application has not been processed within that time frame.
Judge
Annex
| Immigration and Refugee Protection Regulations, SOR/2002-227
Form and content of application
10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall
... (b) be signed by the applicant
Required information (2) The application shall, unless otherwise provided by these Regulations, (a) contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not, and a statement whether the applicant or any of the family members is the spouse, common-law partner or conjugal partner of another person;
...
(d) include a declaration that the information provided is complete and accurate.
...
(6) A sponsorship application that is not made in accordance with subsection (1) is considered not to be an application filed in the prescribed manner for the purposes of subsection 63(1) of the Act.
12. If the requirements of sections 10 and 11 are not met, the application and all documents submitted in support of the application shall be returned to the applicant.
Application period
175. (1) For the purposes of subsection 21(2) of the Act, an application to remain in Canada as a permanent resident must be received by the Department within 180 days after the determination by the Board, or the decision of the Minister, referred to in that subsection. |
Règlements sur l'immigration et la protection des réfugiés, DORS/2002-227
Forme et contenu de la demande
10. (1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement :
[...] b) est signée par le demandeur;
Renseignements à fournir (2) La demande comporte, sauf disposition contraire du présent règlement, les éléments suivants : a) les nom, date de naissance, adresse, nationalité et statut d'immigration du demandeur et de chacun des membres de sa famille, que ceux-ci l'accompagnent ou non, ainsi que la mention du fait que le demandeur ou l'un ou l'autre des membres de sa famille est l'époux, le conjoint de fait ou le partenaire conjugal d'une autre personne;
[...]
d) une déclaration attestant que les renseignements fournis sont exacts et complets.
[...]
(6) Pour l'application du paragraphe 63(1) de la Loi, la demande de parrainage qui n'est pas faite en conformité avec le paragraphe (1) est réputée non déposée.
12. Si les exigences prévues aux articles 10 et 11 ne sont pas remplies, la demande et tous les documents fournis à l'appui de celle-ci sont retournés au demandeur.
Délai de demande
175. (1) Pour l'application du paragraphe 21(2) de la Loi, la demande de séjour au Canada à titre de résident permanent doit être reçue par le ministère dans les cent quatre-vingts jours suivant la décision de la Commission ou celle du ministre visées à ce paragraphe. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1433-05
STYLE OF CAUSE: HUSNAH MOHAMMED AL MASHTOULI, et al v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 15, 2005
APPEARANCES:
| Ms. Barbara Jackman
|
|
| Mr. Lorne McClenaghan |
SOLICITORS OF RECORD:
| Jackman & Associates Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario |