IMM-3684-97
Cesar Martin Diaz (Applicant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Diazv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Evans J."Toronto, December 15, 1998; Ottawa, February 9, 1999.
Citizenship and Immigration — Status in Canada — Permanent residents — Post-determination refugee claimants in Canada class (PDRCC) — Applicant's refugee status claim rejected in February 1994 on ground excluded from Convention refugee definition by Convention, Art. 1F(a) (crime against humanity) — Applicant advised in August 1997 did not qualify for risk assessment as member of PDRCC class — Applicant's deemed application for landing as member of PDRCC class to be determined under Immigration Regulations in force when August 1997 decision made (including amendment to Immigration Regulations, in force as of May 1997, excluding those whose refugee claims rejected under Art. 1F(a)) — Question certified.
Construction of statutes — Retroactivity — Application of amended definition of post-determination refugee claimants in Canada class (PDRCC) — Applicant's claim for refugee status rejected in February 1994 on ground excluded from Convention refugee definition by Convention, Art. 1F(a) (crime against humanity) — Applicant advised in August 1997 did not qualify for risk assessment as member of PDRCC class as amendment to Regulations in force as of May 1997 excluding those whose refugee claims rejected under Art. 1F(a) — Applicant's deemed application for landing as member of PDRCC class to be determined under Immigration Regulations in force when August 1997 decision made — New, amended, definition clearly meant to apply to claims determined prior to May 1997 — Applying new definition not giving legislation retroactive effect, merely ascribing different consequence to continuing fact — Simply giving immediate effect — Effect of amendment not punitive in nature — Amendment did not deprive applicant of any existing right of substantive nature — Question certified.
The applicant's claim for Convention refugee status was rejected by the CRDD in February 1994 on the ground that there were serious grounds for believing that he had participated in crimes against humanity committed by members of the Shining Path, a terrorist organization, and that he was thus excluded from the definition of Convention refugee by Article 1 F(a) of the United Nations Convention Relating to the Status of Refugees. After applicant was advised that he was to be deported to Peru, the applicant asked an immigration officer to defer his removal pending the determination of an application for judicial review of the exclusion order. The applicant stated that he feared that if returned to Peru, he was likely to be killed as a police informant by the Shining Path. In August 1997, this request was denied and the applicant was advised that he did not qualify for a risk assessment as a member of the post-determination refugee claimants in Canada (PDRCC) class, and was removed from Canada in May 1998. This was an application for judicial review of the immigration officer's decision that the applicant was not a member of the PDRCC class, and was thus ineligible for permanent residence status under subsection 6(5) of the Immigration Act.
The issue was whether the applicant was entitled to have his claim to be a member of the PDRCC class determined under the Immigrations Regulations, 1978 in force when the decision was made in August 1997 (including a new definition of "members of the post-determination refugee claimants in Canada class", in force as of May 1997, which excluded those whose refugee claims were rejected on the ground that they fell within Article 1F(a)), or those in force in February 1994 when the CRDD rejected his claim for refugee status and under which he was automatically deemed to have applied for landing on compassionate and humanitarian grounds.
Held, the application should be dismissed.
Prior to the 1997 amendments, the Immigration Regulations, 1978 provided that a person whose claim for refugee status was rejected by the Refugee Division was automatically considered for landing as a member of the PDRCC class. Claimants were deemed to have applied on the date of the decision rejecting their claim for refugee status. The Regulatory Impact Analysis Statement published with the amendments to the Regulations appears to contemplate that the amended definition of the class will be applied to all applications for landing determined after April 30, 1997.
The immigration official did not err in determining whether the applicant was a member of the PDRCC class by reference to the statutory definition of the class in force when the decision was made. The fact that the Regulations expressly preserved the category of "deemed applicant" for those whose claims the Refugee Division had determined prior to May 1997, but contained no analogous provisions with respect to the amendment of the definition of the membership of the PDRCC class is a clear indication that the new definition was intended to apply to such claims. However, this would not be fatal to the applicant if he could establish that, so interpreted, the Regulations are retroactive in effect and hence presumptively unauthorized by the enabling statute.
To determine whether a person is eligible for a statutory benefit by reference to the definition of eligibility in force when the decision is made is not to give the legislation a retroactive effect. Rather, the amendment to the Regulations merely ascribes a different consequence to a continuing fact " here, the existence of serious grounds for suspecting that the applicant had committed crimes against humanity. Accordingly, to apply it to all decisions made after the enactment of the amendment is simply to give it immediate effect. The effect of the amendment to the Regulations is not punitive in nature. It merely excludes, in the public interest, certain categories of persons from the definition of those eligible for a statutory benefit. The benefit in question being discretionary, the amendment did not deprive the applicant of any existing legal right of a substantive nature.
The only accrued right possessed by the applicant on April 30, 1997 was the right to be treated as a "deemed applicant" for landing as a member of the PDRCC class, and not excluded from having his application considered because he did not submit it in the time prescribed in the 1997 Regulations. This right was expressly preserved by the Regulations.
It is true that the result would have been different had the application been determined by the immigration official before May 1, 1997, but anomalies of this kind are not uncommon when the law is changed, and there was no evidence of deliberate delay herein.
While case law has established that, in other areas of immigration law, applications are determined by reference to eligibility at the time of application, these cases do not speak to the question of a change to the legal definition of the class after an application has been submitted, but before the officer's decision is made.
The following question was certified: Does the amended definition of "member of the post-determination refugee claimants in Canada class" contained in subparagraph 2(1)(a )(v) of the Immigration Regulations, 1978 which came into effect on May 1, 1997, apply to "deemed applicants" for landing as members of this class whose claims for refugee status were dismissed by the Refugee Division after February 1, 1993 and before May 1, 1997?
statutes and regulations judicially considered
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).
Immigration Act, R.S.C., 1985, c. I-2, ss. 3(g),(h), 6(5) (as am. by S.C. 1992, c. 49, s. 3), 83(1) (as am. idem, s. 73).
Immigration Regulations, 1978, SOR/78-172, ss. 2(1) "member of the post-determination refugee claimants in Canada class" (as am. by SOR/93-44, s. 1; 97-182, s. 1), 11.4(2) (as enacted by SOR/93-44, s. 10; 97-182, s. 5), (3) (as enacted by SOR/93-44, s. 10; 97-182, s. 5).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.
cases judicially considered
applied:
Say v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 165 (F.C.T.D.); Gharib v. Canada (Minister of Citizenship and Immigration) (1995), 99 F.T.R. 208; 30 Imm. L.R. (2d) 291 (F.C.T.D.).
distinguished:
Hirbod v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 81 (F.C.T.D.); Yassin v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 909 (F.C.T.D.) (QL); Canada (Minister of Citizenship and Immigration) v. Nikolova (1995), 102 F.T.R. 72; 31 Imm. L.R. (2d) 104 (F.C.T.D.); Canada (Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621; (1992), 6 Admin. L.R. (2d) 62; 16 Imm. L.R. (2d) 241; 136 N.R. 254 (C.A.); Wong v. Minister of Employment and Immigration (1986), 64 N.R. 309 (F.C.A.); Choi v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 763; (1991), 6 Admin. L.R. (2d) 94; 15 Imm. L.R. (2d) 265; 139 N.R. 182 (C.A.); Henry v. Canada (Minister of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 161 (F.C.T.D.).
referred to:
Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); Diaz v. Canada (Minister of Citizenship and Immigration) (1995), 94 F.T.R. 237 (F.C.T.D.); Diaz v. Canada (Minister of Citizenship and Immigration) (1997), 135 F.T.R. 235 (F.C.T.D.).
authors cited
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPLICATION for judicial review of an immigration official's decision that the applicant was not a member of the post-determination refugee claimants in Canada class, and was thus ineligible for permanent residence status under subsection 6(5) of the Immigration Act. Application dismissed.
appearances:
Osborne G. Barnwell for applicant.
Bridget A. O'Leary for respondent.
solicitors of record:
Ferguson, Barnwell, North York, Ontario, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Evans J.:
A. INTRODUCTION
This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5) in which Cesar Diaz (hereinafter the applicant) requests the Court to review and set aside a decision dated August 25, 1997, in which an immigration official decided that the applicant was not a member of the post-determination refugee claimants in Canada (hereinafter PDRCC) class, and was thus ineligible for permanent residence status under subsection 6(5) of the Immigration Act, R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 3).
B. FACTUAL BACKGROUND
The applicant is a national of Peru who claimed refugee status in Canada in 1990. The Convention Refugee Determination Division of the Immigration and Refugee Board (hereinafter the Refugee Division) rejected his claim in a decision dated February 21, 1994. The Refugee Division found that there were serious grounds for believing that the applicant had been a "knowing and personal participant in persecutorial acts amounting to a crime against humanity" committed by members of a terrorist organization, Shining Path, and that he was therefore excluded from the definition of a Convention refugee by Article 1F(a) [United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6]. An application for judicial review of this decision was dismissed on April 24, 1995 [(1995), 94 F.T.R. 237 (F.C.T.D.)].
On August 12, 1997 the applicant was advised that he was to be deported to Peru on August 28, 1997. His counsel asked the immigration officer in charge of the applicant's file to defer his removal pending the determination of an application for judicial review of the exclusion order. The basis of the application was that the applicant feared that if returned to Peru he was likely to be killed as a police informant by Shining Path. However, this request was refused [(1997), 135 F.T.R. 235 (F.C.T.D.)] and on August 25, 1997 the applicant was advised that he did not qualify for a risk assessment as a member of the PDRCC class with a view to being granted permanent residence status in Canada. The applicant was removed from Canada in May 1998.
C. THE ISSUE
Although the applicant's counsel, Mr. Barnwell, raised a number of issues in his written submissions, it was agreed at the hearing that this case turns on one question. This is, whether the applicant was entitled to have his claim to be a member of the PDRCC class determined under the Immigration Regulations, 1978, SOR/78-172 (as amended) in force when the decision under review was made in August 1997, or those in force on February 21, 1994 when the Refugee Division rejected his claim for refugee status and he was automatically deemed to have applied for landing on compassionate and humanitarian grounds. To understand the issue it is necessary to explain the relevant provisions of the Regulations, as they were both before and after amendments came into effect on May 1, 1997 [SOR/97-182].
D. ANALYSIS
Prior to the 1997 amendments, the Immigration Regulations, 1978 provided that a person whose claim for refugee status was rejected by the Refugee Division was automatically considered for landing as a member of the PDRCC class. Claimants were deemed to have applied on the date of the decision of the Refugee Division rejecting their claim for refugee status. They were not required to submit an application, although they could, if they wished, make written submissions in support of their deemed application for membership in the PDRCC class: subsections 11.4(2) [as enacted by SOR/93-44, s. 10], (3) [as enacted idem].
These provisions were repealed in 1997 by amendments to the Regulations [SOR/97-182]. Failed refugee claimants who wish to apply for landing as members of the PDRCC class must now submit within 15 days of being notified of the Refugee Division's rejection of their claim for refugee status an application for a determination of whether they are members of the class: paragraph 11.4(2)(b). However, this provision does not apply to those whose claims for refugee status were rejected between February 1, 1993 and April 30, 1997. They continue to be treated as "deemed applicants" for landing as members of the PDRCC class by virtue of paragraph 11.4(2)(a ).
Since Mr. Diaz's refugee claim was rejected by the Refugee Division in February 1994, it is common ground that he was to be treated as a "deemed applicant" for landing, even though a decision was not made on his application until August 1997, nearly four months after the amendments had come into effect on May 1, 1997. The controversial question, however, is whether his deemed application for landing as a member of the PDRCC class should have been decided on the basis of the definition of the PDRCC class as it was in August 1997 when the officer made his decision, or as it had been in February 1994 when he was deemed to have applied for landing, more than three years prior to the amendments coming into effect on May 1, 1997.
The amendment of immediate concern in this case is the change to the definition of "member of the post-determination refugee claimants in Canada class" made by subparagraph 2(1)(a )(v) [as am. by SOR/97-182, s. 1] excluding those whose refugee claims were rejected on the ground, among others, that they were within Article 1F(a). This was the ground on which Mr. Diaz's claim for refugee status had been rejected by the Refugee Division, and for this reason the immigration official who decided his application for landing found that he was not a member of the PDRCC class.
The transitional provisions of the Regulations are silent on the applicability of the amendment to the definition of the PDRCC class to those who are "deemed applicants" because the Refugee Division rejected their claim under Article 1F prior to May 1, 1997. Nonetheless, the Regulatory Impact Analysis Statement published with the amendments to the Regulations appears to contemplate that the amended definition of the class will be applied to all applications for landing determined after April 30, 1997. It states [SOR/97-182, at page 1178]:
These provisions will not be applied retroactively. All failed refugee claimants who are currently "deemed applicants" and for whom a decision remains pending on the day on which these regulations come into force will continue to be considered as "deemed applicants for landing". In all other aspects, however, their applications will be processed in accordance with these amended regulations. [Underlining added.]
It is Mr. Barnwell's contention, however, that to apply the amended definition of membership of the PDRCC class to a person who is deemed to have applied for landing as a member of the class before the Regulations were amended in May 1997 is to give the amendment a retroactive effect. He relied on the presumption that legislation is not intended retroactively to deprive individuals of vested rights. Even if it were found that this presumption was rebutted by the clear terms of the Regulations, the presumption that statutes do not authorize the making of retroactive regulations would render the Regulations ultra vires in this respect.
Ms. O'Leary, counsel for the Minister, responded by submitting that the application to Mr. Diaz of the definition of the PDRCC class in force when the officer made his decision did not give the amendment of the Regulations a retroactive effect, even though the applicant is deemed to have applied for landing and a determination of his membership of the class before the amendment came into force. Rather than being retroactive, she said, the amendment simply had immediate effect. No one has a vested right to have a claim to a statutory benefit decided according to the law as it was when an application for it was submitted. The only vested right that Mr. Diaz had on April 30, 1997 was to be treated as a "deemed applicant" for landing as a member of the PDRCC class and thus not required to make a personal application after that date, a right that is expressly protected by the transitional provision contained in the amendment.
This issue was considered in Say v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 165 (F.C.T.D.) where, on facts that are materially indistinguishable from those of the case at bar, Rothstein J. (as he then was) held that the immigration officer was correct to determine the applicant's membership of the PDRCC class by reference to the definition in force when the decision was made. He said [at page 166]:
The right conferred on him by the Regulations was that he was to have been deemed to have submitted an application for landing as a member of the PDRCC Class as of that date. But he had no vested right to continuation of the law as it existed when he was deemed to have made his application.
Mr. Barnwell invited me to reconsider this issue, particularly in light of the subsequent decision in Hirbod v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 81 (F.C.T.D.). In that case the applicant's refugee claim had been dismissed by the Refugee Division under Article 1F(c) on October 25, 1996, when he automatically became a "deemed applicant" for landing as a member of the PDRCC class. He made written submissions in support of his deemed application on April 2, 1997, but his application was rejected by an immigration official on May 27, 1997 on the ground that, under the amendment of the Regulations that came into effect on May 1, 1997, the applicant was not a member of the PDRCC class because his refugee claim had been dismissed pursuant to Article 1F(c).
Reed J. granted the application for judicial review of this decision on the ground that the Regulations are presumed not to have retroactive effect, and therefore, she said at page 82, "applications for membership in a relevant class are to be determined by reference to the eligibility requirements as they exist at the date the application is filed or, at least, at the date when the applicant has done everything he needs to do in order to perfect his application" (emphasis added). She distinguished Say 's case on the ground that, in that case, no risk submissions had been filed in support of the deemed application. Tremblay-Lamer J. followed Hirbod in Yassin v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 909 (F.C.T.D.) (QL).
On its face, Hirbod would not seem to assist the applicant, since Reed J. stated at page 85 that "[t]he new Regulations are expressly framed to apply the new class definition only to those applications for which submissions have yet to be made" (emphasis added). In other words, she affirmed the holding in Say , which, since Mr. Diaz made no submissions in support of his deemed application, would seem to be determinative of this case.
However, part of the reasoning in Hirbod is equally applicable to a case where, as here, no submissions were made before May 1, 1997. One factor that persuaded Reed J. to reach the conclusion that she did was that it "avoids the anomaly of an applicant being found to be within or outside the PDRCC class depending upon the time, before or after May 1, 1997, when the responsible immigration official makes a decision on the applicant's file" (at page 85). If the immigration official had decided the deemed application before May 1, 1997 Mr. Diaz would not have been excluded from membership of the class on the ground that the Refugee Division rejected his claim under Article 1F(c). However, on the respondent's interpretation of the amended Regulations, because the decision was not made until August 1997, for reasons not within Mr. Diaz's control, he could be excluded on this ground.
Moreover, Mr. Barnwell argued that it was wrong to attach significance to whether the applicant had filed risk submissions in support of the deemed application, because the legislation did not require submissions to be made before the application was perfected. Therefore, Mr. Diaz's application was no less complete in law than Mr. Hirbod's, so that to interpret the Regulations as removing Mr. Diaz's right to be considered according to the law in force when his application was deemed in law to have been made would thus remove a vested right, and give the amendment a retroactive effect which renders it ultra vires the Immigration Act.
There is considerable force in Mr. Barnwell's argument that the decisions in Say and Hirbod are less readily distinguishable than perhaps Reed J. appears to have thought. Nonetheless, it is quite clear that in Hirbod Reed J. expressly affirmed the correctness of Say in situations where the deemed applicant had made no submissions prior to May 1, 1997 in support of the application for landing as a member of the PDRCC class. To grant this application for judicial review would thus require me to disagree with the opinions of both Rothstein J. and Reed J.
In my view, the immigration official did not err in determining whether Mr. Diaz was a member of the PDRCC class by reference to the statutory definition of the class in force when the decision was made. The fact that the Regulations expressly preserved the category of "deemed applicant" for those whose claims the Refugee Division had determined prior to May 1, 1997, but contained no analogous provisions with respect to the amendment of the definition of the membership of the PDRCC class is a clear indication that the new definition was intended to apply to such claims. The Regulatory Impact Analysis Statement also indicates that this was the intention of the drafter of the amendments. However, this interpretation of the Regulations is not fatal to the applicant in this case if he can establish that, so interpreted, the Regulations are retroactive in effect and hence presumptively unauthorized by the enabling statute.
In my view, to determine whether a person is eligible for a statutory benefit by reference to the definition of eligibility in force when the decision is made is not to give the legislation a retroactive effect. Rather, the amendment to the Regulations merely ascribes a different consequence to a continuing fact"here, the existence of serious grounds for suspecting that Mr. Diaz had committed crimes against humanity. Accordingly, to apply it to all decisions made after the enactment of the amendment is simply to give it immediate effect.
It is also relevant to note in characterizing the effect of the amendment to the Regulations that it is not punitive in nature, but merely excludes in the public interest certain categories of persons from the definition of those eligible for a statutory benefit. Thus, Mr. Diaz is not being punished for committing an act that was lawful when it was committed.
Moreover, the benefit in question"the grant of permanent residence on humanitarian compassionate grounds to a person not otherwise qualified under the statutory scheme"is discretionary in nature: Gharib v. Canada (Minister of Citizenship and Immigration) (1995), 99 F.T.R. 208 (F.C.T.D.). The amendment did not therefore deprive the applicant of any existing legal right of a substantive nature. I have found of great assistance on this issue the discussion of retroactivity by Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), at pages 517-521.
It is not reasonable for a potential beneficiary to assume that the definition of eligibility may not be changed in a manner that adversely affects a person who has been deemed in law to have applied for the benefit. To apply the Regulations to a person in the position of Mr. Diaz neither deprives deemed applicants of a legitimate expectation nor, even less, causes them to have relied to their detriment on the continuation of the Regulations without an amendment that adversely affects their claim.
Hence, the only accrued right possessed by Mr. Diaz on April 30, 1997 was the right to be treated as a "deemed applicant" for landing as a member of the PDRCC class, and not excluded from having his application considered because he did not submit it in the time prescribed in the 1997 Regulations. This right was expressly preserved by the Regulations.
Admittedly, this conclusion does not avoid the anomaly identified by Reed J. in Hirbod, namely that whether the applicant was or was not a member of the PDRCC class depended on the timing of the decision on his file, a matter entirely outside his control. Thus, if, as could have happened, the applicant's deemed application had been determined by the immigration official before May 1, 1997, Mr. Diaz could not have been excluded from membership of the PDRCC class on the ground that his refugee claim had been dismissed under Article 1F(a). However, anomalies of this kind are not uncommon when the law is changed, and there is no evidence that PRDCC determinations were deliberately delayed in order to exclude those whose claims were rejected by the Refugee Division under Article 1F.
Reed J. also cited at page 83 of her reasons for judgment in Hirbod authority for the proposition that, in other areas of immigration law, applications are determined by reference to eligibility at the time of application. Some of these cases, however, decide only that the eligibility of an applicant for a visa as a member of a class is determined on the facts as they were at the date of application (the age of a person sponsored as a dependent child, for example), and not when the visa officer decided the application: Canada (Minister of Citizenship and Immigration) v. Nikolova (1995), 102 F.T.R. 72 (F.C.T.D.); Canada (Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621 (C.A.); Wong v. Minister of Employment and Immigration (1986), 64 N.R. 309 (F.C.A.). These cases do not speak to the question of a change to the legal definition of the class after the application is submitted, but before the officer's decision is made.
More relevant is Choi v. Canada (Minister of Citizenship and Immigration), [1992] 1 F.C. 763 (C.A.), where it was held that the points of assessment for job demand to be assigned to an applicant for a visa are "locked in" at the time when a completed visa application is received. The points to be allocated for Mr. Choi's skills were decreased between the time when he submitted a pre-application questionnaire and the receipt of his completed application.
The Court quashed the refusal of the visa on the ground that the applicant ought to have been informed by officials at the Canadian High Commission in Hong Kong that he did not have to submit a pre-application questionnaire, but could have submitted a completed application immediately. If he had done so, he would have had the benefit of the higher job demand points at that time assigned to his occupation, and thus obtained the total number of points normally required for the issue of a visa.
Apart from the fact that the ratio of Choi was that on the facts the visa officer erred in law in deciding the visa application by reference to the points allocated for job demand at the time that the application was received, the case is distinguishable on two grounds. First, the decision was based on the officials' breach of the duty of fairness in failing to provide the applicant with enough information about the application process: he should have been told that he could either complete a pre-application questionnaire in order to obtain a preliminary indication of whether he qualified for a visa, or make an immediate application for a visa, so that he could decide which route would be in his best interests. Mr. Diaz, in contrast, was not denied any information about the application process that might have resulted in a different decision, and could not be said for this reason to have been denied his right to procedural fairness.
Second, if applicants for visas as independent immigrants cannot rely on the fact that their qualifications will be assessed by criteria in place at the time of their application, potential immigrants may be discouraged from applying, and the statutory objective contained in paragraph 3(h) of the Immigration Act of attracting to Canada highly educated and skilled immigrants who will contribute to the Canadian economy is likely thereby to be hindered. While it is also certainly Canada's policy to permit persons not otherwise qualified to remain in Canada on humanitarian and compassionate grounds (see paragraph 3(g) of the Act), this objective is surely not undermined by a change that is made to the definition of those eligible on these grounds that comes into effect after an application is deemed to have been made.
Closer to the case at bar is Henry v. Canada (Minister of Employment & Immigration) (1988), 6 Imm. L.R. (2d) 161 (F.C.T.D.), where it was held that an applicant for permanent residence status on humanitarian and compassionate grounds was entitled to have her application considered in accordance with the decision-making guidelines in place at the time of her application, regardless of a subsequent change. She had received a positive recommendation from the officer who interviewed her and, according to the guidelines then in force, that recommendation should have gone directly to the Minister. Instead, it was reversed by a CIC Manager on an intermediate level of review that was added by a revised version of the guidelines issued after the positive recommendation had been made by the first-level officer.
Collier J. held that it was a breach of the duty of fairness for the Manager to reverse the positive recommendation already made in favour of the applicant: the amendment to the guidelines should not have been given retroactive effect. However, it is important to note that in this case the amendment to the guidelines occurred, not merely after the application was submitted, but after a positive recommendation had been made. Hence, at that stage, the applicant could plausibly be said to have a legitimate expectation that her file would proceed in accordance with the guidelines then in place, and that to apply the new guidelines would deprive her of this legally recognized interest and thereby give them retroactive effect.
In contrast, Mr. Diaz's "deemed application" had proceeded no further when the amendment to the Regulations came into effect. Moreover, a person who submits an application for a benefit may have a more cogent claim that the application be considered in accordance with the rules then in force, than a person, such as the applicant, who is automatically deemed by operation of law to have applied for a statutory benefit.
For these reasons, the application for judicial review is dismissed.
Counsel for the applicant requested that I certify a question pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act. Counsel for the respondent opposed the request on the grounds that not many individuals are likely to be directly affected by the resolution of the dispute on which this litigation turns, and that the proposed question is not one that "transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application": Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), at page 5.
I have decided that the question that I have certified meets the statutory criterion of "a serious question of general importance" as elaborated in the jurisprudence. While there are likely to be relatively few individuals in the position of the applicant, the answer to the question is also potentially relevant to the application of the concept of retroactivity to other changes that may be made to the definition of the membership of the PDRCC class, and other immigration "classes".
In addition, there is clearly some uncertainty in the jurisprudence as to how the question raised by this case should be answered and the Federal Court of Appeal has not previously had an opportunity to consider it. Finally, it is undisputed that the disposition of this application for judicial review turns on the question certified.
Accordingly, I have certified the following question pursuant to subsection 83(1) of the Immigration Act.
Does the amended definition of "member of the post-determination refugee claimants in Canada class" contained in subparagraph 2(1)(a )(v) of the Immigration Regulations, 1978 which came into effect on May 1, 1997, apply to "deemed applicants" for landing as members of this class whose claims for refugee status were dismissed by the Refugee Division after February 1, 1993 and before May 1, 1997?