Ali v. Canada ( Minister of Citizenship and Immigration )
IMM-2359-94
Richard J.
8/2/95
8 pp.
Applicant, citizen of Guyana, arriving in Canada May 16, 1987, claiming Convention refugee status -- Becoming member of backlog when amendments to Immigration Act coming into force January 1, 1989 -- Found to have credible basis for claim -- Applied for landing pursuant to Refugee Claimants Designated Class Regulations, s. 3(1) -- On June 26, 1991 found inadmissible pursuant to Immigration Act, s. 19(2)(b) because of criminal convictions for offences committed in Canada -- On July 23, 1992 application for permanent residence refused -- Leave granted for judicial review of decision -- Before judgment could issue to set aside decision, applicant attending interview for review of humanitarian, compassionate grounds for facilitating admission -- Immigration officer rejecting application -- On April 18, 1994 original application dismissed, but leave granted to file application for judicial review of failure to apply Refugee Backlog Regulation to applicant -- Judicial review of three decisions: (1) determining applicant inadmissible pursuant to s. 19(2)(b); (2) rejecting application for landing based on criminal inadmissibility; (3) rejecting application for landing based on insufficient humanitarian, compassionate grounds -- Leave for judicial review granted only on grounds of applicability of admissibility provisions in Act, s. 19 to individuals governed by Backlog Regulations and authority of immigration officers to render decision on basis of those provisions -- No jurisdiction to review exercise of discretion under s. 114(2) (whether to exempt applicant from requirements of Act, regulations based on humanitarian, compassionate grounds) -- Issues: (1) whether statutory duty under Backlog Regulations to grant landing to applicant; (2) whether immigration officers had jurisdiction to determine whether applicant inadmissible; (3) whether immigration officers had jurisdiction to refer applicant to Refugee Division for determination of Convention refugee claim; (4) whether Refugee Division had jurisdiction to determine applicant's Convention refugee claim -- Applicant maintaining Court of Appeal in Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 held positive credible basis finding conclusive and entitling applicant to admission to Canada -- Backlog Regulations, s. 4 only granting right to person in designated class created by s. 3 to apply for landing, not to be granted landing, but only if applicant meeting further conditions set out in Act, regulations as specified by s. 6(1) -- Statement in Mayers obiter and no evidence Court therein asked to consider point raised in this application -- Kaisersingh v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 20 (T.D.), examining substantially same arguments regarding first three issues and arriving at same conclusion, applied -- Applicant properly found to be inadmissible, refused landing and referred to Refugee Division for determination of Convention refugee claim -- Because immigration officers' decisions in accordance with Act, Backlog Regulations, and applicant referred to Refugee Division pursuant to s. 46.03(5), Refugee Division had jurisdiction to determine well-foundedness of applicant's Convention refugee claim pursuant to Act, s. 69.1 -- Immigration Act, R.S.C., 1985, c. I-2, ss. 19(2)(b), 46.01(6) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 46.03(5) as enacted idem), 69.1(1) (as enacted idem, s. 18), 114(2) -- Refugee Claimants Designated Class Regulations, SOR/90-40, ss. 3, 4, 6.