and
AND IMMIGRATION
REASONS FOR ORDER
HARRINGTON J.
[1] Mr. Ishak has been declared ineligible to pursue a refugee claim in Canada on the grounds that he has already been recognized as a refugee within the meaning of the United Nations Convention by the United States, and can be returned to that country. That would be well and good if it were true. Not only has Mr. Ishak not been granted refugee status in the United States, but the Minister knows it! After having been turned down in 2001, Mr. Ishak tried again in 2004. This time
he was held to be ineligible, because he was already found ineligible, even though the immigration officer got it wrong the first time around. Talk about a Catch-22.
[2] A wise man once said "that which reposes on nothing is nothing". Nevertheless, I have come to the conclusion that this application for judicial review must be dismissed.
THE FACTS
[3] Mr. Ishak is from Lebanon. He went to the United States and there applied for asylum. While that application was pending he decided to apply in Canada. He has relatives here. He entered Canada from the United States at Lacolle, Quebec, the major road crossing south of Montreal. No certified Arabic interpreter was available. After a delay of some hours, his cousin, who had come down from Montreal to pick him up, was pressed into service as an English/Arabic interpreter and told the immigration officer that Mr. Ishak had already been granted refugee status in the United States. Mr. Ishak swears this is all a misunderstanding. All he ever said is that he had an application pending. Be that as it may, the immigration officer communicated with the United States Immigration and Naturalization Service in Champlain, New York, which confirmed that he had been granted asylum in the United States. Consequently, the Senior Immigration Officer, pursuant to Section 46.01(1) (a) of the former Immigration Act determined that Mr. Ishak was not eligible to claim refugee status as he had been recognized as a Convention refugee by the United States, a country to which he could be returned, and to which he was returned the same day. However, as the Minister admits in his memorandum of argument "it appears that the information given in 2001 was incorrect and the Applicant was never granted asylum by the United States."
[4] Mr. Ishak abandoned his refugee claim in the United States and came to Canada again in December 2004. After some review and consideration, the assigned immigration officer concluded that Mr. Ishak's claim was ineligible because a prior claim of his had already been determined to be ineligible. This is a judicial review of that decision.
THE LAW
[5] The general rule is that anyone who comes to Canada is entitled to assert a refugee claim, and to have that claim determined by the Immigration and Refugee Board. Some claimants are inadmissible for reasons as set out at Sections 33 and following of the current Act, The Immigration and Refugee Protection Act (IRPA).
[6] The first step in the process is an examination by an immigration officer to determine whether a claim is eligible to be referred to the Board. Section 101 of IRPA lists six reasons why a claim is ineligible:
| 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if (a) refugee protection has been conferred on the claimant under this Act; (b) a claim for refugee protection by the claimant has been rejected by the Board; (c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned; (d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country; (e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). |
101. (1) La demande est irrecevable dans les cas suivants : a) l'asile a été conféré au demandeur au titre de la présente loi; b) rejet antérieur de la demande d'asile par la Commission; c) décision prononçant l'irrecevabilité, le désistement ou le retrait d'une demande antérieure; d) reconnaissance de la qualité de réfugié par un pays vers lequel il peut être renvoyé; e) arrivée, directement ou indirectement, d'un pays désigné par règlement autre que celui dont il a la nationalité ou dans lequel il avait sa résidence habituelle; f) prononcé d'interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux -- exception faite des personnes interdites de territoire au seul titre de l'alinéa 35(1)c) --, grande criminalité ou criminalité organisée. |
[7] Even giving IRPA a purposeful interpretation and recognizing that in the first instance its objective is to save lives and offer protection to the displaced and persecuted (Section 3), try as I might I cannot escape the clear unequivocal language of Subsection (c). As stated by Elmer Driedger in Construction of Statues (2nd ed. 1983) at page 87: "Today there is only one principle or approach, namely the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". See Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and more recently, Bristol-Myers Squibb Co. v. Canada(Attorney General), [2005] 1 S.C.R. 533 at paragraphs 37 and following.
[8] Had Mr. Ishak not applied in Canada prior to 2004, then he clearly would have been entitled to pursue a claim because he has not been recognized as a Convention refugee by the United States, or by any other country, and is not otherwise ineligible.
[9] However, he did advance a prior claim, and that claim was determined to be ineligible; wrongly it turns out. Nevertheless, law and order requires that decisions, even if they are wrong, cannot simply be ignored. They have to be set aside. Consequently, the application must be dismissed. The Immigration Officer who made the decision in 2005 was right in law. Mr. Ishak prior claim "was determined to be ineligible". The Act does not require that the prior determination be correct.
OTHER RECOURSES
[10] The Minister recognized and submitted that there were other possible recourses available for Mr. Ishak. Indeed, Mr. Ishak's counsel recognized there were other recourses, but thought that this application would be a shortcut and noted that the obvious recourse, seeking judicial review of the 2001 decision, would require the Court to exercise discretion and to extend the normal delays, as such applications are normally to be brought within 15 days.
[11] Three recourses come to mind.
[12] Under Section 25 of IRPA, the Minister, on application or even on his own initiative, may examine the circumstances concerning a foreign national and grant him an exemption from any applicable criteria or obligation of this Act if of the opinion that such would be justified by humanitarian and compassionate (H & C) considerations or by public policy considerations. Natural justice requires a fair hearing. Mr. Ishak has had no hearing, in large measure due to miscommunication between American and Canadian immigration authorities.
[13] Mr. Ishak could ask for a rehearing of the 2001 decision on the grounds of new evidence, and the Minister's admission. He may be met with an argument that the officer is functus officio and that the decision cannot be revisited. However, Chandler v. AlbertaAssociation of Architects, [1989] 2 S.C.R. 848 may be of assistance. At page 863, Mr. Justice Sopinka referred to cases which "involve[d] a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect."
[14] As already mentioned, Mr. Ishak could also seek leave to have the 2001 decision judicially reviewed in accordance with Sections 72 and following of IRPA and Sections 18 and following of the Federal Courts' Act. Normally the application must be filed and served within 15 days. However, Section 72(2)(c) of IRPA provides "a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice."
[15] Since these matters are not directly before me, I must emphasize I mention them only as possibilities, without having thought the ramifications through.
[16] Another possibility is that my reading of Section 101 of IRPA is wrong. Perhaps to give equal meaning to subsections (c) and (d), the former has to be read down so as only to apply to prior determinations for reasons other than that the claimant has been recognized as a Convention refugee by another country.
[17] Mr. Ishak shall have until 6 February 2006 to propose a question of general importance which would support an appeal, and the Minister has until 9 February 2006 to reply.
[18] Questions, if any, are to be submitted via the Montreal Registry.
"Sean Harrington"
JUDGE
Ottawa, Ontario
February 1, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4136-05
STYLE OF CAUSE: ISHAK RAYMOND YOUSSEF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 26, 2006
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
| Styliani Markaki
|
|
| Daniel Latulippe
|
SOLICITORS OF RECORD:
| Styliani Markaki Montreal, Quebec
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|