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Digest of the Week — Discretion in Immigration Decisions

Haqi v. Canada (Minister of Public Safety and Emergency Preparedness) |
2015 CarswellNat 6209 |
Federal Court of Appeal

Immigration and citizenship | Exclusion and removal | Inadmissible classes | Security | Spies and subversives

Applicant sought refugee protection in Canada claiming fear of persecution as result of his activities with Kurdish Democratic Party of Iran — Before his refugee claim could be heard by Refugee Protection Division (RPD), applicant's case was referred to Immigration Division (ID) for determination as to his admissibility — ID found that applicant was inadmissible for being member of organization that it had reasonable grounds to believe had been engaged in subversion by force of Iranian government — Canadian Border Services Agency (CBSA) officer gave notice to applicant and RPD under s. 104 of Immigration and Refugee Protection Act (IRPA) that applicant had been determined to be inadmissible on security grounds (s. 104 notice) — Implicit from wording of notice was that CBSA officer believed that applicant's refugee claim was now ineligible, and that termination of his pending RPD proceeding necessarily followed — Applicant's application to quash s. 104 notice was dismissed — Trial judge found officer's interpretation of IRPA was both reasonable and correct — Trial judge found that in earlier case. Federal Court had previously concluded that CDSA officers had no discretion to decline to issue s. 104 notice following finding of inadmissibility on security grounds by ID — Trial judge found applicant had not demonstrated that principles of judicial comity should not apply, or that there was basis for reaching different conclusion in present case — Trial judge found legislative scheme, legislative history and principles of legislative construction all supported conclusion reached in earlier decision — Applicant appealed — Appeal dismissed — Neither case law nor enactment of Protecting Canada's Immigration System Act, had any impact on section 104 notice — Application for Ministerial relief had no bearing on operation of s. 104 — Fact that officer takes notice of facts and communicates legal consequence imposed by Act did not make officer decision-maker with discretion — Certified question answered in negative — Certified question was after RPD proceeding has been suspended under paragraph 103(1)(a) of Immigration and Refugee Protection Act pending outcome of Immigration Division hearing into refugee claimant's admissibility, if Immigration Division determines that claimant is inadmissible for security reasons under section 34(1)(f) of IRPA, does officer have any discretion under subsection 104(1)(b) of IRPA to not determine claim's eligibility and to not notify RPD of officer's decision on eligibility.
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