Federal Court Decisions

                                                                                                           

Date: 19980618

Docket: IMM-2363-97

BETWEEN:

                               BILLAL AHMAD YASSIN,

Applicant,

                                                - and -

    THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

                                REASONS FOR ORDER

TREMBLAY-LAMER J.:

[1] This is an application for judicial review of a decision of an immigration officer wherein it was determined that the Applicant was not a member of the post-determination refugee claimants in Canada (PDRCC), as defined in subsection 2(1) of the Immigration Regulations, 1978^[1] ("Regulations").

[2] The Applicant is a national of Afghanistan who applied for refugee status in Canada. His claim was denied by the Refugee Division on May 15, 1996, on the ground that he was excluded under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. The Applicant sought to have the Refugee Division's decision reviewed, but leave was refused by this Court.   

[3] At the time that the Applicant's refugee claim was rejected, the Regulations provided that a refused refugee claimant was deemed to have submitted an application for landing as a member of the PDRCC class on the day on which the Refugee Division's decision was rendered.^[2] Thus, pursuant to the Regulations, the Applicant filed risk submissions in support of his PDRCC application in a letter dated November 15, 1996. No decision was rendered on his application before May 30, 1997.

[4] However, by that time, the Regulations had been amended on May 1, 1997,^[3] to exclude from the class persons such as the Applicant who had been determined by the Refugee Division to be persons referred to in Article 1F(a) of the Convention. The Applicant was considered under these new rules and as a result, his application was automatically denied. The Applicant maintains that his application should have been determined under the old Regulations.

[5]         In recent months, this Court twice dealt with the issue of the application of the old Regulations versus the application of the new Regulations. In Say v. Canada (Minister of Citizenship and Immigration),^[4] Rothstein J. held that the new Regulations applied "to all PDRCC applicants, whether their application is deemed to have been made up to April 30, 1997 or whether they make applications subsequently". In his view, applicants have no vested right to the continuation of legislation as it existed when they were deemed to have made their applications.

[6]         Reed J. came to a different conclusion in the case of Nasser Hirbod v. Minister of Citizenship and Immigration.^[5] She was of the opinion that the new Regulations were drafted in such a way as to apply the new definition to those applications for which submissions have yet to be made. None of subsections 11.4(3) and following expressly apply to the situation were the risk submissions have been filed before the coming into force of the amended Regulations. She stated:

The Regulations are drafted in a very strange and awkward way if it was intended that the new PDRCC class definition should apply to all pre-May 1, 1997 applications, including those with respect to which the applicant had completed all the steps required of him, prior to the new law coming into effect, and was merely awaiting a decision by the relevant immigration officer. If the interpretation counsel for the respondent urges had been intended, why were the Regulations not expressly drafted to state that in all cases an immigration officer in making a determination with respect to an application for landing, or membership in PDRCC, as the case might be, should apply the new definition?

I am persuaded that the Regulations were not drafted in that fashion in order to avoid an argument that doing so would have interfered with the applicant's right to have his application determined in accordance with the law as it stood at the date his application had been made. It avoids the argument that a substantive right exists in that regard. It also avoids the anomaly of an applicant being found to be within or outside the PDRCC class depending upon the time, before or after May 1, 1997, when the responsible immigration official makes a decision on the applicant's file.

[7]         It is on this basis that Reed J. distinguished her case from that of Say. In Say, no risk submissions had yet been filed.

[8]         I agree with Reed J.'s decision. Legislation is not intended to have a retroactive application unless Parliament expressly intended it to be so. In the case of the new Regulations, the provisions as explained by Reed J. do not support the contention that Parliament intended to have the Regulations applied retroactively to applicants who had perfected their application and filed their risk submissions before the coming into force of the new Regulations.

[9]         This conclusion accords well with the decision of the Federal Court of Appeal in Choi v. Canada (Minister of Employment and Immigration).^[6] In the absence of valid retroactive legislation, applications for membership in a particular class are to be determined by reference to the eligibility requirements as they existed at the date the application was filed or at the date when the Applicant did everything he needed to do to perfect his application.

[10]       At first glance, this debate may seem academic. Indeed, there is a possibility that the Applicant would not be eligible for landing under the old Regulations as would be the case under the new Regulations. Paragraph 11.4(1)(a) excludes from landing any member of the PDRCC who is a person described in paragraph 19(1)(j) of the Immigration Act^[7] ("Act") which refers to persons who are inadmissible to Canada due to the fact that

[...] there are reasonable grounds to believe [they] have committed an act or omission outside Canada that constituted [...] a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.		[...] pour des motifs raisonnables, qu'elles ont commis, à l'étranger, un fait constituant [...] un crime contre l'humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l'époque de la perpétration.

[11]       The Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration)^[8] found that the provision is very similar to Article 1F(a). Both require less than the balance of probabilities^[9]. However, I recognize that since 19(1)(j) requires that the crime committed in the country of origin if it had been committed in this country "would have constituted an offence against the laws of Canada", an applicant may perhaps avail himself of certain defences provided in the Criminal Code^[10] (including the peace officer defence^[11]) to avoid a determination of inadmissibility.

[12]       Therefore, the application for judicial review is granted. The case is remitted back to an immigration officer for redetermination of the Applicant's eligibility according to the Regulations as they read before the amendments of May 1, 1997.

[13]       In light of this conclusion there is no need to deal with the Applicant's argument on the unreasonable delay.

[14]       The Applicant has requested that the following questions be certified:

Are the PDRCC amendments of May 1, 1997 retroactive and if so, would they apply to a person who made submissions before the amendments came into effect?

Is section 7 of the Charter of Rights and Freedoms engaged in a determination as to whether a person is a member of the PDRCC class? If so, were the principals of fundamental justice breached in the circumstances of this case?

[15]       The Respondent has submitted a third question which I believe to be a reformulation of the Applicant's first question:

Where a person described in section 5(2)(a) of the Immigration Regulations files submissions in support of an application for landing in the PDRCC class prior to May 1, 1997 should the officer considering the application apply the PDRCC criteria as they read before May 1, 1997?

[16]       With respect to the Applicant's first question, I am not convinced that certification is warranted. Because the answer does not affect a significant number of cases, no issue of national importance is raised.

[17]       The second question is also not worthy of certification given my previous conclusion regarding the issue of the delay.

                                                             "Danièle Tremblay-Lamer"   

JUDGE

OTTAWA, ONTARIO

June 18, 1998.

TRIAL DIVISON

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:               IMM-2363-97

STYLE OF CAUSE:           Billal Ahmad Yassin v. M.C.I.

PLACE OF HEARING:       Toronto, Ontario

DATE OF HEARING:         June 9, 1998

REASONS FOR ORDER BY:The Honourable Madame Justice Tremblay-Lamer

DATED:         June 18, 1998

APPEARANCES: ~

Mr. Micheal Crane                                                                                  for the Applicant

Mr. David Tyndale                                                                             for the Respondent

SOLICITORS OF RECORD:

Mr. Micheal Crane

Toronto, Ontario                                                                                     for the Applicant

Mr. George Thomson

Deputy Attorney General of Canada                                                   for the Respondent