Digests

Javaid v. Canada (Minister of Citizenship and Immigration)

IMM-1932-99

Campbell J.

6/4/00

10 pp.

Judicial review of senior immigration officer's (SIO) decision under Immigration Act, s. 46.01--S. 46.01 providing Convention refugee claimant not eligible to have claim determined if, since last coming into Canada, determined not to be Convention refugee--Applicant's Convention refugee claim dismissed in 1996--As not member of Post-Claim Determination Refugee Claimant in Canada Class, conditional departure order effective--Applicant leaving Canada without advising respondent in advance of departure--No certificate of departure issued--Agreed by virtue of s. 32.02(2) applicant subject to deportation order--Applicant returning to Canada, claiming Convention refugee status--SIO holding ineligible under s. 46.01 to have claim referred to CRDD because determined by CRDD not to be Convention refugee since last coming into Canada--Agreed SIO had no jurisdiction to exercise authority under s. 46.01, given his finding at time of presentation of refugee claim applicant subject of unexecuted removal order--S. 44(1) permitting any person in Canada, other than person against whom removal order made but not executed to seek determination of Convention refugee claim by notifying immigration officer--If not able to notify immigration officer of claim because claimant not "person against whom removal order has been made, but not executed", considerations under s. 46.01 not arising--Agreed by virtue of finding applicant subject of unexecuted removal order, SIO could not exercise jurisdiction pursuant to s. 46.01--Also agreed if SIO wrong in finding on condition precedent, then s. 46.01 concerns arising--Respondent arguing as unexecuted removal order outstanding when applicant made claim, barred by s. 44(1) from pursuing claim--Applicant arguing by operation of s. 32.02(2), since subject of deportation order, not subject of unexecuted removal order; i.e. to be subject of deportation order, unexecuted removal order different things and s. 44(1) not barring him notifying immigration officer of refugee claim--No conflict between ss. 44(1), 32.02(2)--Execution of removal order perfected when certificate of departure pursuant to s. 32.01 issued against subject of unconditional departure order--If no certificate of departure issued, removal order not executed within s. 44(1)--Result of not obtaining certificate of departure, by operation of s. 32.02 to have departure order made against person "deemed to be deportation order"--If removal order considered unexecuted if no certificate of departure obtained, and deportation order deemed if no certificate of departure obtained, same thing for purposes of application of s. 44(1)--SIO correct in finding applicant subject of unexecuted removal order--Decision set aside as made without jurisdiction--Following questions certified: respecting application of s. 44(1), is departure order "unexecuted" as result of not obtaining certificate of departure; respecting application of s. 44(1), is deemed deportation order arising under s. 32.02 equivalent of unexecuted removal order--Immigration Act, R.S.C., 1985, c. I-2, ss. 32.01 (as enacted by S.C. 1992, c. 49, s. 22), 32.02 (as enacted idem), 44(1) (as am. idem, s. 35), 46.01 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9).