Date: 19980731
Docket: IMM-5335-97
BETWEEN:
IGOR TCHASSOVNIKOV
MARINA TCHASSOVNIKOVA
DIANA TCHASSOVNIKOVA (minor applicant)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] The applicants arrived in Canada on June 5, 1994 and immediately made refugee claims. On July 12, 1995, they were found to be ineligible to claim refugee status on the basis of s. 46.01(1) of the Immigration Act and, thus, were effectively denied access to the convention refugee determination system.
Section 46.01(1)(a) of the Immigration Act reads as follows:
| 46.01(1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person |
| (a) has been recognised as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned. |
The Senior Immigration Officer's July 12, 1995 decision reads as follows:
| Following a determination under paragraph 45(1)(a) of the Immigration Act, you have been found ineligible under section 46.01(1) to have your claim to be a convention refugee referred to the Convention Refugee Determination Division of the Immigration and Refugee Board the basis for the determination is as follows: |
| You have been recognized as a Convention refugee by Spain which is a country to which you can be returned. |
[2] On November 13, 1996, the applicants' counsel sent a letter to Immigration Canada requesting a reconsideration of the July 12, 1995 ineligibility finding on the basis of new evidence. This request for reconsideration was denied on November 17, 1997 on the following ground:
| The decision at issue may not be revisited on the basis of the functus principle and it does not appear that, notwithstanding the rule of functus, one of the exceptions apply to this case. |
[3] This is the decision under review in this application.
[4] Regarding whether an error of law has been made in reaching the decision under review on the functus principle, I find the decision of Cullen J. in Chan v. MCI [1996] 3 F.C. 349 to be a compelling authority. In that case, Cullen J. decided that a visa officer has jurisdiction to reconsider a decision made, particularly when new information comes to light.
[5] I find it reasonable to extend Cullen J.'s reasoning in Chan to the Senior Immigration Officer's decision in this case. Accordingly, I find the Senior Immigration Officer's decision of November 17, 1997 to be based on an error in law.
[6] As the reason for requesting the reconsideration stems from a letter from the Spanish authorities dated April 24th, 1995, which places the original decision reached in this case on July 12, 1995 in significant doubt, I set the decision of November 17, 1997 aside and refer this matter to another immigration officer for redetermination on the following directions:
| (1) that the redetermination be on the facts as they existed on June 5, 1994, being the date of the applicants' original application in Canada for refugee status; and |
| (2) that the applicants be at liberty to call such evidence as they consider necessary, it being in the interest of Justice, on the facts of this case, that this be allowed. |
"Douglas R. Campbell"
Judge
Toronto, Ontario
July 31, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5335-97
| STYLE OF CAUSE: IGOR TCHASSOVNIKOV ET AL. |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, JULY 29, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL, J.
DATED: JULY 31, 1998
APPEARANCES:
Mr. Ronald Poulton
For the Applicants
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
281 Eglington Avenue East
Toronto, Ontario
M4P 1L3
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980731
Docket: IMM-5335-97
Between:
| IGOR TCHASSOVNIKOV |
MARINA TCHASSOVNIKOVA
DIANA TCHASSOVNIKOVA (Minor Applicant)
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
| AND ORDER |