Hosseini v. Canada ( Minister of Citizenship and Immigration )
IMM-3873-96 / IMM-4581-97
MacKay J.
12/8/98
25 pp.
Judicial review of CRDD decision applicant not Convention refugee, Immigration and Refugee Board's decision denying motion questioning CRDD's jurisdiction to consider applicant's claim-Applicant Shiite Muslim, citizen of Afghanistan, alleging persecution based on ethnicity, religion-Arriving in Canada in 1987-Convicted of trafficking in heroin, possession of narcotic for purposes of trafficking-Claiming refugee status at port of entry, and again in January 1988 at immigration inquiry-Inquiry adjourned for purposes of examination under oath-While examination under oath conducted, determination concerning applicant's claim never rendered, applicant becoming member of "backlog"-On January 1, 1989 Immigration Act amended so that between that date and January 31, 1993 refugee claims pre-screened for eligibility by adjudicator, member of Refugee Division in "credible basis hearing"-On October 7, 1992 inquiry convened by adjudicator-After two adjournments, resumed with only adjudicator present-Conditional deportation order issued, adjudicator alone referred claim to Refugee Division-This decision rendered 10 days after amendments to Act requiring referrals to Refugee Division be made by senior immigration officer or credible basis panel, except for cases under s. 110-S. 110 providing any inquiry commenced before coming into force of amendment shall continue to determination as though that provision not amended-Referral apparently made pursuant to transitional provision, s. 112-S. 112 requiring every Convention refugee claim made between January 1, 1989 and day on which s. 112 coming into force, and in respect of which no determination of credible basis made as of that day, to be referred to Refugee Division-Following referral, applicant found not to be Convention refugee on October 3, 1996 notwithstanding well-founded fear of persecution-Panel finding trafficking conviction excluding applicant from definition of "Convention refugee" by virtue of Art. 1F(c)-Subsequently applicant bringing motion for order CRDD not having jurisdiction to hear applicant's claim-Refugee Division dismissing motion, finding did have jurisdiction and in alternative functus officio-(1) Between January 1, 1989 and January 31, 1993 applicant member of backlog whose eligibility for refugee status to be determined at credible basis hearing before adjudicator and member of Refugee Division-Could only be referred to Refugee Division by credible basis hearing-As refugee claim antedated January 1, 1989, s. 110 applied and inquiry commenced October 1992 to continue to determination after credible basis hearing-S. 110 only requiring inquiry be commenced before enactment; that inquiry adjourned at time of 1993 amendment irrelevant as applicant remained subject of inquiry: Sahayarajah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 831 (T.D.) (QL)-Convention refugee claim made in 1988, prior to introduction of 1989 amendments-Simple re-assertion of claim in 1992 not making s. 112 of transitional provisions applicable-Objection to jurisdiction not waived by failure to raise it during initial proceedings before Refugee Division-Objection brought by application for leave and judicial review timely-(2) Moot question whether CRDD erred in finding functus officio-Decision by Court on whether CRDD erred in finding itself functus officio not resolving controversy affecting rights of parties-(3) In light of Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 holding conspiring to traffic in narcotic not violation of Art. 1F(c), applicant cannot be excluded from consideration as Convention refugee under Art. 1F(c) because of convictions for drug crimes-In excluding claim on this ground, CRDD erred in law-(4) If CRDD lacked jurisdiction, applicant cannot rely upon CRDD's finding of fact had well-founded fear of persecution, argue Court should determine applicant to be refugee-As CRDD without jurisdiction, no purpose served by sending matter back as, in most favourable circumstances, applicant would re-appear before Refugee Division-No prejudice caused to applicant by CRDD dealing with matter despite flawed referral procedures-Applicant ineligible for processing under Backlog Regulations since backlog class not to include persons described in Immigration Act, s. 19(1)(c)-While Court not having power under s. 18.1(3) to declare applicant to be refugee, may return matter to Refugee Division with direction Division issue such determination where Court satisfied that but for error of law, Division would have found applicant to be refugee-Order goes directing matter be returned to Refugee Division and that Refugee Division determine applicant to be Convention refugee-Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(c) (as am. by S.C. 1992, c. 49, s. 11)-An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, ss. 110, 112-United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(c).