Date: 19990518
Docket: IMM-637-98
OTTAWA, ONTARIO, MAY 18, 1999
PRESENT: MR. JUSTICE TEITELBAUM
BETWEEN:
MARIA PIDASHEVA
Applicant
- 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-637-98
BETWEEN:
MARIA PIDASHEVA
Applicant
- 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 another application for judicial review by applicants Pavel and Ruslan Pidasheva, husband and son of applicant Maria Pidasheva, in docket IMM-771-98. However, this decision deals only with docket IMM-637-98, which was heard following docket IMM-771-98.
FACTS
[3] Applicant Maria Pidasheva, born in 1947 in the Ukraine, claimed refugee status on arrival in Canada, but her claim was rejected. She later applied for permanent residence as a "member of the deferred removal orders class" (DROC) and was allegedly accepted on August 30, 1996.
Decision of January 31, 1998
[4] The applicant received a letter dated January 31, 1998, rejecting her application for permanent residence on the ground that she did not satisfy paragraph 11.401(f) of the Immigration Regulations, 1978, which provides that dependants of a member of the deferred removal orders class must not have been convicted of an offence referred to in paragraph 27(2)(d) of the Immigration Act.
[5] The letter specified that on December 1, 1997, the applicant"s husband had been convicted of an offence under paragraph 253(b ) of the Criminal Code, and that she and her dependants would therefore have to leave Canada.
REPRESENTATIONS
[6] The applicant submitted the following arguments in support of her application for judicial review. She argued that she could not be compelled to include her husband"s name in her application for permanent residence because they were separated and he had made his own application; that she should have been heard regarding her husband"s admissibility; that an inquiry should have been held to determine whether her husband was described in paragraph 27(2)(d ) of the Immigration Act; and that the provisions of the Regulations infringed section 7 of the Canadian Charter of Rights and Freedoms and were discriminatory.
[7] At the hearing, no argument was made with respect to section 7 of the Charter. Instead, it was argued that it was unfair to refuse the applicant permanent residence on account of her ex-husband"s criminal offence. It was asserted that she and her husband were now divorced, but no document was filed in the record to attest that the divorce had been decreed.
[8] The respondent maintained that the Immigration Regulations, 1978 defined "spouse" as a dependant, and that in exercising a non-discretionary power, the officer had no choice but to make the decision dated January 31, 1998; no discretion was involved in the exercise of the officer"s duties.
[9] The respondent also submitted that the application of paragraph 11.401(f) of the Immigration Regulations, 1978 was consistent with the family unity policy and was not discriminatory. According to the respondent, it was simply the result of a situation of fact. In addition, the respondent submitted that section 7 of the Canadian Charter of Rights and Freedoms did not apply in the case at bar.
ISSUE
[10] In its decision dated January 31, 1998, did Citizenship and Immigration Canada make any error warranting this Court"s intervention?
ANALYSIS
[11] The applicant argued that she should not have been required to put her husband"s name in her application for permanent residence and that she should have been heard regarding his inadmissibility.
[12] The applicant"s arguments do not appear to have taken into account the operative immigration regulations of general application. Under section 11.401 of the Regulations, members of the deferred removal orders class and their dependants are required to comply with the landing requirements and must not have been convicted of an offence referred to in section 27 of the Act. Under subsection 2(1) of the Immigration Regulations, 1978 , "dependant" includes a spouse, which means the party of the opposite sex to whom the applicant is joined in marriage.
[13] In the case at bar, it is irrelevant whether or not the applicant was compelled to include her husband"s name in her application for permanent residence; her spouse is automatically considered a "dependant" by operation of law whether or not he is listed in her application for residence. The legal effect would have been the same.
[14] With respect to the right to be heard regarding her husband"s inadmissibility, the applicant made no argument that supported her claims. In fact, she provided the Court with not one relevant argument that she had apparently hoped to make regarding the decision affecting her. It appears in fact that the application of the regulations to the facts in the case at bar required the officer to make a negative decision. The officer had no discretion and any submission would have been futile. Furthermore, the applicant made no argument to show that the officer"s decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material.
[15] In her written submissions, the applicant apparently also maintained that the DROC immigration regulations on which the decision of January 31, 1997, was based infringed section 7 of the Charter and were discriminatory. That argument is unsound. As the respondent pointed out, a decision rejecting a DROC application for residence does not engage section 7 of the Charter: Ponnampalam v. Canada (M.C.I.), (F.C.T.D.) (IMM-3644-95, June 27, 1996), reported in English in (1996), 117 F.T.R. 294. Mr. Justice Rothstein made the following comments in that regard, at paragraphs 7-11:
| Section 11.401 sets out a number of landing requirements. Landing requirements include the person having certain travel or identity documents, passing medical examinations, having been engaged in employment, not being convicted of an offence referred in the Immigration Act and, of course, submitting an application within 120 days after becoming a member of the DROC. |
| None of these qualifications or requirements pertain to the life, liberty, or security of the person. For example, there is no assessment as to whether the applicant might be persecuted if removed from Canada. That being the case I have difficulty seeing how regulations providing for a fixed time limit to make a landing application, with no discretion conferred on an immigration officer to extend that time, engage Charter protection and are not in accordance with the principles of fundamental justice. In short, while an applicant loses the opportunity to make an application for landing if no application is filed within 120 days, the loss of that opportunity does not go to the applicant's right to life, liberty or security of the person. |
| Counsel for the applicant argues that if the applicant cannot apply for landing, the applicant will be deported and that deportation involves the applicant's right to liberty. Assuming deportation does engage the applicant's liberty interest, I do not think that the inability to apply for landing under the DROC regulations is one and the same as deportation. While the applicant can fully expect to be deported as a failed Convention refugee claimant subject to removal, deportation is a separate procedure. The process leading to a deportation order or the execution of that order may engage section 7 of the Charter , but not the DROC decision, standing alone. |
| . . . |
| I conclude that the landing process under the DROC regulations does not engage the applicant's Charter rights and there is therefore no overriding principle of fundamental justice that confers discretion on an immigration officer to override the 120 day limitation period in paragraph 11.401(a) of the Immigration Regulations for making application for landing. |
[16] With respect to the allegation that the regulatory provisions regarding the deferred removal orders class are discriminatory, counsel for the applicant made no argument to support that proposition. Moreover, as the respondent submitted, those provisions repeat the general principles of the Immigration Act and Immigration Regulations, 1978 regarding applications for landing and the principle of family unity.
CONCLUSION
[17] The application for judicial review is dismissed.
QUESTION FOR CERTIFICATION
[18] The applicant requested certification of the following question under subsection 83(1) of the Immigration Act, which provides:
| 83. (1) A judgment of the Federal Court-Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court-Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
83. (1) Le jugement de la Section de première instance de la Cour fédérale rendu sur une demande de contrôle judiciaire relative à une décision ou ordonnance rendue, une mesure prise ou toute question soulevée dans le cadre de la présente loi ou de ses textes d'application " règlements ou règles " ne peut être porté en appel devant la Cour d'appel fédérale que si la Section de première instance certifie dans son jugement que l'affaire soulève une question grave de portée générale et énonce celle-ci. |
[19] On the face of this subsection, a question must not be certified unless a serious question of general importance is involved.
[20] The questions the applicant requested to have certified are:
[TRANSLATION]
| Does the respondent have a duty to act fairly and consistently with the principles of fundamental justice when dealing with applications under the DROC regulatory provisions? |
| Does the respondent"s general duty of fairness toward refugee claimants continue when their case is the subject of an application for judicial review? |
[21] In my opinion, these questions have been settled in the affirmative, in that the respondent always has a duty to act fairly and consistently with the principles of fundamental justice.
[22] In this matter, there is no evidence to suggest that the applicant was at any time deprived of the application of the principles of fundamental justice.
[23] I see no serious question of general importance warranting certification.
[24] The respondent requested certification of some questions. Given that I have decided to dismiss this application for judicial review, in my opinion there is no need to certify those questions.
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-637-98
STYLE OF CAUSE: MARIA PIDASHEVA
- AND - 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:
William Sloan
FOR THE APPLICANT
Michèle Joubert
FOR THE RESPONDENT
SOLICITORS OF RECORD:
William Sloan
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada