CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Oumer v. Canada (Minister of Citizenship and Immigration)
IMM-6053-02
2003 FC 1353, Pinard J.
20/11/03
5 pp.
Judicial review for order of mandamus requiring respondent to grant permanent resident status to applicant-- Application for permanent resident status refused on basis identity documentation unsatisfactory, even though applicant submitted passport--Passport did not predate claim to refugee status--Immigration Act (Act), s. 46.04(8) governed processing of applicant's application until repeal of Immigration Act on June 28, 2002--New Immigration and Refugee Protection Act (IRPA), containing similar requirements found in IRPA Regulations, s. 50(1)(a), stating applicant for permanent resident status must possess passport issued by country of which foreign national citizen or national--IRPA Regulations, s. 178 giving alternative list of documents in case impossible to obtain document required under IRPA Regulations, s. 50--Applicant had valid documents at time of application; not within officer's discretion to determine if issuance of document satisfactory-- "Satisfactory" test applying only to identity documents other than passport--In case at bar, no question of authenticity or validity of passport, and it bore both name and photograph of applicant--Hence, officer erred in law when refusing to accept "valid and subsisting" passport under Act, s. 46.04(8)-- Officer would have made same error had she based refusal on IRPA Regulations, s. 50(1)(a)--However, mandamus not appropriate remedy in circumstances--Judicial review allowed and matter sent back for redetermination--Immigration Act, R.S.C., 1985, c. I-2, s. 46.04(8) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 38)-- Immigration and Refugee Protection Act, S.C. 2001, c. 27-- Immigration and Refugee Protection Regulations, SOR/2002- 227, ss. 50(1)(a), 178.