Hirbod v. Canada ( Minister of Citizenship and Immigration )
IMM-2463-97
Reed J.
6/4/98
11 pp.
Application to set aside decision applicant not member of post-determination refugee claimants in Canada class (PDRCC)-On October 25, 1996 CRDD excluding applicant from Convention refugee status pursuant to United Nations Convention Relating to the Status of Refugees, Art. 1F(c)-Prior to May 1, 1997 Immigration Regulations providing person determined not to be Convention refugee deemed to have applied for landing as member of PDRCC on day on which CRDD decision given-Applicant having 15 days to make submissions concerning risk faced if returned to country of origin-As matter of practice, time limit usually extended so that submissions not made until after final determination of judicial review of CRDD decision-Regulations also provided further submissions could be filed within 15 days after final determination of judicial review application-Applicant's judicial review application dismissed February 21, 1997-Risk submissions filed April 2, 1997-At that time definition of member of PDRCC containing no automatic exclusion from class as result of having been found to fall within Art. 1F(c)-Also procedure one-step process-On May 1, 1997 Regulations amended so that definition of member of PDRCC excluding individuals falling under Art. 1F(c) of Convention; applications for landing twostep process requiring application for determination whether within PDRCC category, and if successful, application for landing-Risk submissions only filed if person within new PDRCC class definition-According to case law, in absence of valid retroactive legislation, applications for membership in relevant class determined by reference to eligibility requirements as existed when application filed or, at least, when applicant had done everything needed to perfect application-Such finding based on: (1) presumption legislative provisions not retroactive unless so expressly stated; (2) principle of fairness requiring assessment of application by reference to law in existence when submissions made-Regulations neither expressly applying new PDRCC class definition to applicant's application, nor by necessary implication-New Regulations expressly framed to apply new class definition only to those applications for which submissions yet to be made-Had it been intended to subject all pre-May 1, 1997 applicants to new class definition, would have been expressly provided for-Application allowed-Immigration Regulations, 1978, SOR/78-172, s. 2 "member of the post-determination refugee claimants in Canada class" (as enacted by SOR/93-44, s. 1; SOR/97-182, s. 1)-United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(c).