Date: 19991122
Docket: IMM-6777-98
BETWEEN:
MONTHIR (MANDZAR) IBRAHIM BAGEH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of an immigration officer dated December 14, 1998 refusing the applicant's application to reopen his claim for Convention Refugee status.
[2] The applicant arrived in Canada on April 2, 1998 as a stonaway on a ship. On April 4, 1998, he eluded examination by escaping from the vessel prior to being examined by an immigration officer.
[3] On April 8, 1998, the applicant reported to Immigration Canada for the purpose of making a refugee claim.1 The applicant was then given by Immigration Officer Beaver a form to fill out called "notification of claim to be Convention refugee".2 On April 16, 1998, in a document entitled "subsection 27(2) Highlights", the same immigration officer recommended that ". . . the subject be referred to a S.I.O. so as to determine his eligibility to make a refugee claim in Canada" and stated that "[i]t appears the subject is eligible to make a refugee claim in Canada".
[4] Since his arrival in Canada, the applicant had been staying at a shelter in Vancouver called Welcome House. At the end of April, 1998, he was told he could no longer stay there and his belongings were put outside. Depressed, confused and not knowing of any other place where to go, on May 1, 1998, the applicant attended at the Immigration Enforcement Office in Vancouver and told Immigration Officer Beaver that he wanted to leave Canada and go back to Iraq. He signed a paper stating that he did "not want to continue [his] refugee claim due to general problems that [he was] facing".3 The immigration officer noted on the applicant's Notification of Claim Form: "Does not want to make claim. Not referred to S.I.O."4 However, on the same day, a senior immigration officer issued a departure order against the applicant, requiring him to leave Canada within 30 days.
[5] The applicant told his lawyer what he had done only after the fact. He soon changed his mind and on May 4, 1998, he told both his lawyer and a removals officer during an interview that he was afraid to go back to Iraq and that he wanted to continue with his refugee claim. Subsequently, the applicant changed lawyers.
[6] On December 10, 1998, having obtained the contents of the immigration file through the Privacy Act, counsel for the applicant applied to Immigration Canada5 to have his client's claim for Convention refugee status reopened. The material submitted to Immigration Canada in support of this application included a report dated October 1, 1998 from Dr. Wahin Wanis, a psychiatrist at the Vancouver Hospital.
[7] On December 14, 1998, Removals Officer Mendel denied the application stating that the applicant ". . . is not entitled to an S.I.O. review for reopening of the refugee case". After having summarized the chronological history of the case, she wrote:
| "Seeing as the subject was not yet found to be eligible to make a Refugee claim, he may not apply to have his claim reopened. A claim was never commenced, only an intention to make a claim was filed. |
| Subject was issued a Departure Order. Once issued, this order is irreversible. A subject under a Deemed Deportation Order may not re-apply to become eligible to make a Refugee claim." |
| (Decision maker's underlining) |
[8] In support of his application, the applicant first submits that because he sought a determination of his refugee claim by notifying an immigration officer of his claim to be a Convention refugee on April 8, 1998 (i.e. prior to any removal order having been made against him), he was entitled to have his claim referred to a senior immigration officer for a determination of eligibility.6 In so far as, on December 10, 1998, he was seeking the reopening of a claim that was commenced before the removal order was made (May 1/98), the applicant contends that he is in a different situation from a person who having failed or declined to make a claim in a timely manner, sought to have the removal order reopened so that a claim could be made.7
[9] The applicant also submits that the immigration officer's decision under review was a decision that should have been made by a senior immigration officer, and consequently, that it was made without jurisdiction. Alternatively, he contends that if the immigration officer acted within jurisdiction, she erred in two different ways: a) in finding that a refugee claim was never commenced and that only an intention to make a refugee claim was filed, and b) in characterizing the matter before her as an application to re-apply to become eligible to make a refugee claim rather than as an application to reopen the refugee claim which had already been made.
[10] The respondent submits that the applicant is in the same position as if no claim had been made prior to a removal order being issued. As the applications to reopen are the exception to the functus officio principle, the respondent submits that there is no decision here to which the functus officio principle could apply or to which the reopening exception could apply.8 Alternatively, if there was a decision which could be the subject of an application to reopen, the respondent submits that Section 44 of the Immigration Act contemplates that the issue of access to the refugee determination system is closed once a removal order is made.9
[11] Sections 44 and 45 of the Immigration Act read as follows:
| 44.(1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer. |
44.(1) Toute personne se trouvant au Canada peut revendiquer le statut de réfugié au sens de la Convention en avisant en ce sens un agent d'immigration, à condition de ne pas être frappée d'une mesure de renvoi qui n'a pas été exécutée, à moins que la mesure n'ait été annulée en appel. |
| (2) An immigration officer who is notified pursuant to subsection (1) shall forthwith refer the claim to a senior immigration officer. |
(2) Le cas échéant, l'agent d'immigration défère sans délai le cas à un agent principal. |
| ... ... ... |
... ... ... |
| 45.(1) Where a person's claim to be a Convention refugee is referred to a senior immigration officer, the senior immigration officer shall (a) subject to subsection (2), determine whether the person is eligible to have the claim determined by the Refugee Division; and (b) if the person is the subject of a report under subsection 20(1) or 27(1) or (2) or has been arrested pursuant to subsection 103(2), take the appropriate action referred to in any of subsections 23(4), (4.01) or (4.2) or 27(4) or (6) or section 28. |
45.(1) L'agent principal à qui le cas a été déféré décide, sous réserve du paragraphe (2), de la recevabilité de la revendication; il doit en outre, si l'intéressé fait l'objet d'un rapport en vertu des paragraphes 20(1) ou 27(1) ou (2) ou s'il a été arrêté en vertu du paragraphe 103(2), prendre à son encontre la mesure indiquée prévue aux paragraphes 23(4), (4.01) ou (4.2) ou 27(4) ou (6) ou à l'article 28. |
| ... ... ... |
... ... ... |
| (3) On making a determination under paragraph (1)(a), the senior immigration officer shall notify the person in writing of the determination and, where the person is determined not to be eligible to have a claim to be a Convention refugee referred to the Refugee Division, shall include in the notification the basis for the determination. |
(3) L'agent principal avise par écrit l'intéressé de sa décision et, lorsqu'elle lui est défavorable, doit la motiver également par écrit. |
| (4) The burden of proving that a person is eligible to have a claim to be a Convention refugee determined by the Refugee Division rests on the person. |
(4) Il appartient à l'intéressé de prouver que sa revendication est recevable. |
| (5) Every person who claims to be a Convention refugee shall truthfully provide such information as may be required by the senior immigration officer to whom the person's claim is referred for the purposes of determining whether the person is eligible to have the claim determined by the Refugee Division, R.S.C. 1985 (4th Supp.), c.28, s.14; S.C. 1992, c.49, s.35; S.C. 1995, c.15, s.8. |
(5) L'intéressé doit fournir à l'agent principal les renseignements que celui-ci exige pour être en mesure de décider de la recevabilité de sa revendication du statut de réfugié au sens de la Convention. L.R.C. 1985, ch.28 (4e Suppl.), art.14; L.C. 1992, ch.49, art.35; L.C. 1995, ch.15, art.8. |
[12] In the instant case, several facts are clear on the face of the record and are, for that matter, uncontested: (a) the applicant made a claim for refugee status on April 8, 1998; (b) the immigration officer wrote a report in accordance with subsection 27(2) of the Act10 on April 16, 1998, in which he recommended that the case be referred to a senior immigration officer so as to determine the applicant"s eligibility to make a refugee claim, adding that in his view ". . . the subject is eligible to make a refugee claim in Canada"; (c) as the applicant indicated on May 1, 1998, that he did not want to continue his refugee claim, the file was not referred to a senior immigration officer; (d) however, on the same day, a senior immigration officer issued a departure order;11 (e) because he regretted his decision not to continue his refugee claim, both the applicant and his then counsel indicated on May 4, 1998, that the applicant wanted to continue with his refugee claim.12
[13] It is important to recall that according to subsection 44(2) of the Act, as soon as the immigration officer established that the applicant was claiming refugee status and was not a person against whom a removal order had been made but not executed, he was required to forthwith refer the claim to a senior immigration officer. Pursuant to subsection 45(1), the senior immigration officer then had to ascertain whether the applicant was eligible to have the claim determined and, insofar as he was the subject of a report under subsection 27(2) of the Act, make a removal order against him.
[14] On December 10, 1998, the applicant applied to a senior immigration officer through his new counsel to have his claim for refugee status reopened.13 It is clear from this letter that the applicant wanted to have the decision not to refer his case to a senior immigration officer reconsidered and his initial claim for refugee status reopened so that it would eventually be determined by the Refugee Division. However, it was an immigration officer and more specifically a removals officer14 who replied. On the pretext that a senior immigration officer had not yet determined whether the applicant was eligible to make a refugee claim and that a departure order had been issued, the immigration officer denied the application to reopen his claim. This is the decision under review. In support of her decision, she stated that a claim for refugee status was never commenced, only an intention to make a claim was filed. She also stated that once a departure order is issued against a person, that person may not re-apply to become eligible to make a refugee claim.
[15] In my view, this decision must be set aside and the matter referred back to a senior immigration officer for determination.
[16] The immigration officer erred in considering the application dated December 10, 1998, a new claim for refugee status when it was clearly - the terms of the letter are unequivocal - an application to have his initial claim reopened.
[17] But what is more, I believe that the immigration officer erred in deciding that the applicant was not entitled to a review of his application to reopen his claim by a senior immigration officer. In the instant case, the applicant had in fact made a claim for refugee status and not simply expressed his intention to do so. At that point, Immigration Officer Beaver was required under the Act to forthwith refer the claim to a senior immigration officer, which he failed to do. In my view, under the terms of subsection 45(1) of the Act, only a senior immigration officer could determine whether the applicant was ". . . eligible to have the claim determined by the Refugee Division". I also believe that only a senior immigration officer could make a decision on the application to have the claim reopened. In acting as he did, the immigration officer assumed the jurisdiction of a senior immigration officer.
[18] Even if we were to assume that the immigration officer had jurisdiction to make a decision on the application to have the claim reopened, I believe he erred in making that decision. The applicant had in fact made a claim for refugee status and nowhere in the Immigration Act is there a reference to a matter that is less than an actual claim to refugee status which could be characterized as "only an intent to make a claim". These errors warrant the intervention of the Court.
[19] The applicant suggested that the two following questions be certified for the purposes of an appeal in accordance with subsection 83(1) of the Immigration Act:
| 1. Is an immigration officer required to refer an application to re-open a refugee claim to an S.I.O. where the claim was initiated prior to the issuance of a removal order but the claimant has withdrawn the claim, and where the claimant now seeks to re-open the claim based on new psychiatric evidence, after a removal order has been issued?; |
and
| 2. Does a Senior Immigration Officer have jurisdiction to consider the eligibility of a refugee claim pursuant to section 45 of the Act, if the refugee claim was initiated prior to the issuance of a removal order, but not referred to the S.I.O. until after the removal order was issued? |
It may appear inappropriate to certify these questions as the Court is setting aside the decision under review. However, as the legal issue is not yet settled and a serious question of general importance is involved, the questions should be certified.
_________________________
Judge
Ottawa, Ontario
November 22, 1999
__________________1 "Acknowledgement of Convention Refugee claim" dated April 9, 1998, at page 17 of the Applicant's Record ("AR").
2 AR, p. 18. I note that the Applicant, in his affidavit, stated that he was informed that his previous counsel submitted the completed form to Immigration Canada on or about April 23, 1998. (AR, p. 14, par. 7)
5 The letter was addressed: "Attention: Senior Immigration Officer", AR, p. 11.
6 Section 44(1) of the Immigration Act ; Chan v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 349; Tchassovnikov v. Canada (Minister of Citizenship and Immigration), (July 31, 1998) IMM-5335-97 (F.C.T.D.).
7 See Raman v. Canada (Minister of Citizenship and Immigration) , (1996), F.T.R. 50 (F.C.T.D.); Daher v. Canada (Minister of Citizenship and Immigration), (1998), 153 F.T.R. 131.
8 In his reply, the applicant submits that two decisions were made on May 1st, 1998: (1) the decision by the immigration officer not to refer the claim to a senior immigration officer [AR, p. 26]; and (2 the decision of the senior immigration officer to issue a departure order.
10 "Subsection 27(2) Highlights", AR, p. 18.
11 See the decision under review, AR, p. 4.
12 Paragraph 5 of the applicant"s affidavit (AR, p. 9) and paragraphs 11 and 12 of his statement of claim (AR, p. 14-15).
14 Even though Mona Medel calls herself an Immigration Officer, her signature indicates that she is a Removals Officer. (AR, p. 5).