Date: 19980406
Docket: IMM-2463-97
BETWEEN:
NASSER HIRBOD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks an order setting aside a decision of May 27, 1997, which found him not to be a member of the Post-Determination Refugee Claimants in Canada Class ("PDRCC"). It is argued that in making that decision the post-claim determination officer ("immigration officer") applied the wrong eligibility criteria. She applied the definition found in SOR/97-182, which had been adopted on May 1, 1997, rather than the definition that applied at the time the applicant's application was commenced as well as at the time that his submissions thereon were filed.
[2] There are numerous cases that have held, in other areas of immigration law, that in the absence of valid retroactive legislation, applications for membership in a relevant class are to be determined by reference to the eligibility requirements as they exist at the date the application is filed or, at least, at the date when the applicant has done everything he needs to do in order to perfect his application. This finding is based on two grounds: (1) legislative provisions are presumed not to operate retroactively unless expressly stated to do so; and (2) the principle of fairness requires that a person's application should be assessed by reference to the law in existence at the time the submissions are made, since it is on the basis of that law that the submissions will have been framed.
[3] The jurisprudence that was cited in support of the above principles is: Choi v. Canada (Minister of Employment and Immigration) (1991), 15 Imm.L.R. (2d) 265 (F.C.A.); Henry v. Canada (Minister of Employment and Immigration) (1988), 6 Imm.LR. (2d) 161 (F.C.T.D.); Lidder v. Canada (Minister of Employment and Immigration) (1992), 16 Imm.L.R. (2d) 241 (F.C.A.); Canada (Minister of Citizenship and Immigration) v. Nikolova (1995), 31 Imm.L.R. (2d) 104; Wong v. Canada (Minister of Employment and Immigration) (1986), 64 N.R. 309 (F.C.A.); McDoom v. Minister of Manpower and Immigration, [1978] 1 F.C. 323 (T.D.).
[4] I will first set out the facts of the applicant's case, and then describe the relevant legislative provisions.
[5] The applicant applied for a determination that he was a Convention refugee. A hearing was held by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") on July 5, 1996. His claim was joined with that of his wife and two children. The CRDD determined that his wife and two children were convention refugees. The CRDD concluded that the applicant, also, had a well-founded fear of persecution in Iran but excluded him from convention refugee status because he had been convicted of two related offences: trafficking in narcotics and conspiracy to traffic in heroin. The CRDD determined that he was excluded from convention refugee status pursuant to Article 1F(c) of the United Nations Convention Relating to the Status of Refugees. Leave to commence a judicial review proceeding of that decision was filed; it was dismissed on February 21, 1997.
[6] The Immigration Regulations as they existed prior to May 1, 1997, provided that a person who had made a claim for refugee status and who was determined by the CRDD not to be a convention refugee, would be deemed to have submitted an application for landing as a member of PDRCC on the day on which the CRDD decision was given. An applicant had, under the Regulations, 15 days thereafter within which to make submissions with respect to the risk he or she would face if returned to the country of origin. As a matter of practice, this time limit was usually extended so that submissions were not made until after the individual had had an opportunity to seek leave to commence a judicial review application of the CRDD decision and a final determination thereon had been made. Final determination means dismissal of a leave application or, if leave is granted, a decision on the judicial review application by the Federal Court - Trial Division, Appeal Division, or the Supreme Court of Canada, whichever is the last decision to be made.
[7] The pre-May 1, 1997 Regulations also provided that further submissions on the risk an applicant would face if returned to his or her country of origin could be filed within 15 days after the final determination of any judicial review application, as described above. As a matter of practice, an extension of at least 30 days and sometimes longer was allowed. The Regulations also stated that an immigration officer was not required to make a decision on a PDRCC application until there had been a final determination of any judicial review application.
[8] In the applicant's case, his application for landing as a member of PDRCC was deemed to have been commenced on October 25, 1996 because this was the date of the negative CRDD decision. His application for leave to commence judicial review proceedings with respect to that decision was dismissed on February 21, 1997. Risk submissions with respect to the PDRCC landing application were filed on April 2, 1997. At that time, the definition of a member of PDRCC contained no automatic exclusion from the class as a result of having been found to fall with Article 1F(c) of the Convention.1 Also the procedure was a one step process in that the deemed application was an application for landing as a result of being a member of the PDRCC class. Thus, while there might be three consecutive decision-making steps (determination of class membership, assessment of risk, decision with respect to landing), the process was within the context of one initial application.
[9] On May 1, 1997, the Regulations were amended. The definition of a member of PDRCC was changed so as to exclude therefrom individuals who had been determined to fall under Article 1F(c) of the Convention.2 In addition, the process would now be a two step process, and applications for landing as a member of PDRCC would no longer be deemed to occur on the date of a negative CRDD decision. An applicant would now have to first make an application for a determination as to whether he or she fell into the PDRCC category and, if successful, could thereafter apply for landing.
[10] In addition to the incorporation of a new PDRCC class definition, and a new two step process, the Regulations essentially provide that risk submissions can only be filed if the person falls within the new PDRCC class definition.The Regulations describe two categories of applicants: (1) those who have made applications before May 1, 1997 (deemed applications); (2) those who would make applications on or after May 1, 1997. Paragraph 11.4(3)(a) of the Regulations describes the timing of submissions by applicants who fall into the deemed application category. Paragraph 11.4(3)(b) describes the timing of submissions by applicants who fall into the post-May 1, 1997, category. Subsection 11.4(4) directs immigration officers not to make any decision on applications that have been filed pursuant to subsection 11.4(3) until certain time periods have elapsed (at least 30 days). Despite these time constraints, subsection 11.4(5) authorizes an immigration officer to make a determination without reference to the time constraints set out in subsection 11.4(3), i.e., without waiting for submissions to be filed, if the person is an excluded person described in any of paragraphs (a)(i) to (vii) of the new definition. These provisions are not relevant to this applicant's situation because his submissions had been filed before May 1, 1997. The full text of the relevant Regulations is appended to these reasons.
[11] The Regulations, then, do not expressly apply the new PDRCC class definition to the applicant's application. It is argued that they do so by necessary implication. I am not persuaded that this is so.
[12] 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?
[13] 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.
[14] I was referred to a decision by Mr. Justice Rothstein in Chea Say v. Minister of Citizenship and Immigration (IMM-3085-97, decision dated October 29, 1997). He framed his decision in very broad terms, stating that:
| . . . . |
| It is clear the intention is that the amended regulations [the new class definition] apply to all PDRCC applicants, whether their application is deemed to have been made up to April 30, 1997 or whether they make applications subsequently. |
| . . . . |
[15] Counsel for the applicant notes that Mr. Justice Rothstein was dealing with a situation that clearly came within the amended Regulations: no risk submissions had yet been filed. Indeed, the judicial review application had not yet been heard. I am persuaded that that decision is distinguishable from the present case.
[16] As noted, in the present case the applicant's risk submissions had been filed before the coming into force of the amended Regulations and none of subsections 11.4(3) and following expressly apply to his situation. The new Regulations are expressly framed to apply the new class definition only to those applications for which submissions have yet to be made. Had it been intended to subject all pre-May 1, 1997 applicants to the new class definition, I think this would have been expressly provided for and directions given to the immigration officers to apply the new definition regardless of the stage the application had reached.
[17] I must admit I have some difficulty, understanding why at the 3end of the day3, to speak colloquially, the application of the old instead of the new definition really matters. It is not seriously contested that even if this applicant is found to be a member of PDRCC, pursuant to the old definition, he would not be eligible for landing. Also, I do not understand what benefit the applicant would obtain from a determination that he is a member of PDRCC, that is, that he will face a significant risk of harm if returned to Iran. The CRDD has already found him to be at risk, so exactly what benefit he would obtain from an additional assessment to the same effect is not clear. In any event, despite these concerns, since I have found counsel for the applicant's arguments convincing, I will set aside the decision under review.
[18] Counsel have asked that they be given an opportunity to address the question of certification after reasons are issued. Counsel for the respondent shall have seven days from the date of issuance of these reasons to make such application if she wishes to do so, either by way of telephone conference or in writing.
Judge
OTTAWA, ONTARIO
April 6, 1998
A P P E N D I X
Prescribed Classes of Immigrants for the Purposes of Subsect S. 11.4(2)(b)
11.4(1) A member of the post-determination refugee claimants in Canada class and the member's dependants, if any, are subject to the following landing requirements:
| (a) the member must not be, and no dependant of the member is, a person described in any of paragraphs 19(1)(c) to (g) to (1) and (2)(a) or subparagraph 19(2)(a.1)(i) of the Act, as determined by an immigration officer pursuant to subsection 6(8) of the Act; |
| (b) the member must not have been, and no dependant of the member has been, convicted of an offence referred to in paragraph 27(2)(d) of the Act for which a term of imprisonment of more than six months has been imposed or a maximum term of imprisonment of five years or more may be imposed; |
| (c) the member must have been in Canada on the day on which the member became a member of the post-determination refugee claimants in Canada class and must have remained in Canada since that day; and |
| (d) the member must be in possession of a valid and subsisting passport or travel document or satisfactory identity documents. |
(2) For the purposes of subsection 6(5) of the Act, a person whom the Refugee Division
| (a) during the period beginning on February 1, 1993 and ending on April 30, 1997, has determined is not a Convention Refugee is deemed to have submitted an application for landing as a member of the post-determination refugee claimants in Canada class to an immigration officer on the day that the determination is made; and |
| (b) on or after May 1, 1997, has determined is not a Convention Refugee and who intends to apply for landing as a member of the post-determination refugee claimants in Canada class shall submit an application for a determination of whether the person is a member of that class to an immigration officer not later than 15 days after the day the person is notified of the determination by the Refugee Division. |
(3) A person, other than a person referred to in any of subparagraphs (a)(i) to (vii) of the definition "member of the post-determination refugee claimants in Canada class" in subsection 2(1), may make written submissions to an immigration officer respecting any of the matters referred to in paragraph (c) of that definition. The submissions must be received by an immigration officer before
| (a) in the case of a person referred to in paragraph (2)(a) whose application for landing is still pending, the later of June 1, 1997 and the day the immigration officer makes a determination respecting that application; and |
| (b) in the case of a person who submits an application for a determination referred to in paragraph (2)(b), the later of the end of a period of 30 days after the day the person submits the application and the day the immigration officer makes the determination. |
(4) The immigration officer shall take into account
| (a) all submissions made by a person in accordance with paragraph (3)(a) before making a determination respecting the person's application for landing and shall not make that determination before June 1, 1997; and |
| (b) all submissions made by a person in accordance with paragraph (3)(b) before determining whether the person is a member of the post-determination refugee claimants in Canada class and shall not make that determination before the end of the 30 day period referred to in that paragraph. |
(5) Notwithstanding subsection (4), an immigration officer may make a determination respecting an application for landing before the date referred to in paragraph (4)(a) or make a determination referred to in paragraph (2)(b) before the end of the 30 day period referred to in paragraph (4)(b), if the person making the application for landing or the person making the application for the determination is a person referred to in any of subparagraphs (a)(i) to (vii) of the definition "member of the post-determination refugee claimants in Canada class" in subsection 2(1).
(6) If the immigration officer determines that a person who has submitted an application for a determination referred to in paragraph (2)(b) is a member of the post-determination refugee claimants in Canada class, the person may submit an application for landing as a member of that class. The application for landing must be submitted to an immigration officer not later than 180 days after the day the person is notified of the determination by the immigration officer.
__________________ 1 Section 2 of the Immigration Regulations , at that time, read:
an immigrant in Canada
(a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant (i) who has withdrawn the immigrant's claim to be a Convention refugee, (ii) whom the Refugee Division has declared to have abandoned a claim to be a Convention refugee, pursuant to subsection 69.1(6) of the Act, (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, or (iv) who has left Canada at any time after it was determined that the immigrant is not a Convention refugee,
(b) who has not previously been refused landing by an immigration officer pursuant to section 11.4, and
(c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country,
(i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant;
2 The definition in subsection 2(1) of the Immigration Regulations now read:
"member of the post-determination refugee claimants in Canada class" means an immigrant in Canada
(a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant
(i) who has withdrawn the immigrant's claim to be a Convention refugee, (ii) whom the Refugee Division has declared to have abandoned a claim to be a Convention refugee, pursuant to subsection 69.1(6) of the Act, (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, or (iv) who has left Canada at any time after it was determined that the immigrant is not a Convention refugee, (v) who, as a result of a determination by the Refugee Division, is considered to be a person referred to in section F of Article 1 of the United Nations Convention Relating to the Status of Refugees, set out in the schedule to the Act, (vi) who is a person described in paragraph 19(1)(c), subparagraph 19(1)(c.1)(i), paragraph 19(1)(e), (f), (g), (j), (k) or (l) or subparagraph 27(1)(a.1)(i) of the Act, or (vii) who has been the subject of a removal order, has left Canada and has, since the date of execution of the removal order, stayed in the United States or St. Pierre and Miquelon for a period of not more than six months, and
(b) [Repealed SOR/97-182].
contd ...
... contd
(c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country,
(i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant;