Digests

Bartha v. Canada (Minister of Citizenship and Immigration)

IMM-388-00

Pelletier J.

15/12/00

15 pp.

Judicial review of CRDD's decision declaring applicant's Convention refugee claim abandoned--Applicant coming to Canada from Romania in March 1998--Claiming refugee status based on Hungarian ethnicity, political, social associations--Claim referred to CRDD--Prior to disposition of refugee claim applicant married permanent resident of Canada, applied for permanent resident status as family class immigrant under sponsorship of new wife--Prior to hearing, applicant notifying CRDD of desire to withdraw application--CRDD requiring applicant to appear and, without giving notice of intention to do so, ruling withdrawal amounting to abandonment of claim--Not providing reasons for decision, but indicating required to make determination concerning claim and abandonment only determination open to it--Echos conclusions in A.T.O. (Re), [1998] C.R.D.D. No. 120--Argument herein proceeded on basis reasons, if given, would have reflected reasoning in A.T.O.--CRDD submitting applicant can no more withdraw case from CRDD than initiate case with CRDD--Such analysis confusing screening with ownership--Refugee status claim must be addressed to Senior Immigration Officer, who refers matter to Refugee Division if satisfied applicant eligible to make claim--That application must first be screened for eligibility before being referred to CRDD not making application Senior Immigration Officer's application--Was, remains applicant's application--CRDD having jurisdiction because subject-matter of application within exclusive jurisdiction conferred upon CRDD by Act--Process by which application getting before CRDD not going to question of jurisdiction--Withdrawal not making one ineligible to make subsequent claim while abandonment does ( s. 46.01(1)(c)(i))--Withdrawing claim not necessarily constituting default--Deliberate choice not to proceed with processing of claim, as opposed to non-compliance with one of steps to be taken in advancement of claim--No public policy reason, as there is with respect to criminal complaints, why applicant should not be allowed to withdraw claim--Eligibility for deportation same whether application for refugee status dismissed, withdrawn, abandoned--Most withdrawals only occurring where applicant securing right to remain in Canada in some other way--Also why right to apply reinstatement significant since allowing refugee claim to be reactivated if, for some reason such as withdrawal of sponsorship, applicant's right to remain in Canada once again put in question--No reasons in principle why these possibilities should be curtailed by restrictive interpretation of CRDD's jurisdiction to deal with withdrawal of application--Order declaring applicant's claim for refugee status abandoned set aside--Immigration Act, R.S.C., 1985, c. I-2, s. 46.01(1)(c)(i) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36).