Bayat v. Canada ( Minister of Citizenship and Immigration )
IMM-4721-94
Richard J.
2/5/95
6 pp.
Application for judicial review of Convention Refugee Determination Division (CRDD) decision vacating visa officer's decision granting applicants Convention refugee status -- Applicants determined to be Convention refugees by visa officer in Pakistan based on false representations with respect to identities -- Issue arising during Immigration Act, s. 69.2(2) hearing to vacate visa officer's decision whether CRDD reconsideration should be based on additional evidence of persecution and country conditions existing at time of visa officer's decision but not before visa officer-CRDD vacating visa officer's determination and finding applicants not convention refugees -- CRDD majority correct in holding only evidence before visa officer in making decision relevant; members should avoid speculation as to availability of documentary evidence-However, CRDD without jurisdiction to find applicants not Convention refugees on s. 69.2(2) application by Minister, particularly if vacated decision rendered abroad -- CRDD must either approve or reject application to vacate earlier decision -- CRDD decision such that applicants now ineligible to make claim for Convention refugee status in Canada pursuant to Act, s. 46.01(1)-Muldoon J. statement "effect of vacating determination is to annul it . . . such that applicant not Convention refugee" in Kahin v. Canada (Minister of Citizenship and Immigration) (1994), 91 F.T.R. 46 (F.C.T.D.) distinguished on basis statement predicated on facts of Kahin case regarding criminal inadmissibility -- CRDD's adverse finding of Convention refugee status struck, thus applicants now able to speak to senior immigration officer regarding eligibility to make Convention refugee status claim from within Canada-Application for judicial review dismissed with respect to portion of decision vacating visa officer's decision and allowed with respect to adverse finding regarding Convention refugee status-Question certified: whether CRDD having jurisdiction to determine person not Convention refugee pursuant to Act, s. 69.2(2)-Immigration Act, R.S.C., 1985, c. I-2, ss. 46.01(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), 69.2(2) (as enacted by R.S.C., 1985 (4th Supp.), s. 18; S.C. 1992, c. 49, s. 61).