Date: 20050221
Docket: IMM-8869-03
Citation: 2005 FC 270
BETWEEN:
ERVIN ROLAND KOVACS
SZIMONETTA KOVACS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] The Applicants claim that their rights to be referred to the Refugee Protection Division should be governed by the former Immigration Act because, except for a legal error by an immigration officer, their claims would have been adjudicated before the coming into force of the new Immigration and Refugee Protection Act (IRPA).
BACKGROUND
[2] The Applicants are male and female Hungarian nationals who came to Canada as visitors in September 1997 and June 1998 respectively. As a result of their failed refugee claims and failed H & C applications, they and their Canadian born son were deported on August 2, 2001. As a result, the Applicants were barred thereafter from returning to Canada without first obtaining the Minister's consent.
[3] The Applicants returned to Canada on November 2, 2001 without obtaining the required consent. Exclusions orders were issued. They were then removed from Canada back to Hungary on November 21, 2001.
[4] The Applicants were successful in their judicial review of the exclusion orders due to the failure of the Department to provide a translator at the port of entry.
[5] As a result of this Court's decision, the Applicants were brought back to Canada in May 2003. Through administrative errors, the port of entry officials failed to process the Applicants upon arrival, as contemplated by this Court's order, and they were admitted pursuant to temporary resident permits. Further administrative delay bogged down the processing of the Applicants' claims.
[6] On October 28, 2003 the Respondent determined that the claims of the Applicants were ineligible to be referred to the Refugee Protection Division because, under paragraph 101(1)(b) of IRPA the Applicants' claim of November 29, 2001 had been rejected.
[7] Paragraph 101(1)(b) of the IRPA reads:
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101(1) A claim is ineligible to be referred to the Refugee Protection Division if
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(b) a claim for refugee protection by the claimant has been rejected by the Board; . . . . |
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101.1 La demande est irrecevable dans les cas suivants :
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b ) rejet antérieur de la demande d'asile par la Commission; . . . .
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[8] The Applicants say that if the Respondent had not committed the legal error on November 2, 2001,by failing to provide an interpreter their claims would have been processed under the former Immigration Act.
[9] The importance of that contention is that sections 46.01(1)(c) and (5) of the former legislation (reproduced below) allowed applicants to make multiple claims despite earlier rejection of one or more of the claims.
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46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person ...
(c) has, since last coming into Canada, been determined
(i) by the Refugee Division not to be a Convention refugee or to have abandoned the claim, or (ii) by a senior immigration officer not to be eligible to have the claim determined by the Refugee Division;
(5) A person who goes to another country and returns to Canada within ninety days shall not, for the purposes of paragraph (1)(c), be considered as coming into Canada on that return. |
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46.01 (1) La revendication de statut n'est pas recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes : ...
c ) depuis sa dernière venue au Canada, il a fait l'objet :
(i) soit d'une décision de la section du statut lui refusant le statut de réfugié au sens de la Convention ou établissant le désistement de sa revendication,
(ii) soit d'une décision d'irrecevabilité de sa revendication par un agent principal; ...
(5) La rentrée au Canada de l'intéressé après un séjour à l'étranger d'au plus quatre-vingt-dix jours n'est pas, pour l'application de l'alinéa (1)c), prise en compte pour la détermination de la date de la dernière venue de celui-ci au Canada.
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[10] The Applicants also argue that because the result is unfair, there is a legitimate expectation that their claims would be processed under the Immigration Act.
ANALYSIS
[11] With respect, I cannot agree with the Applicants' submissions. The issue in this judicial review is not legitimate expectation - a purely procedural right upon which there must be some form of holding-out by government officials, of which there is no evidence.
[12] This judicial review turns upon the application of the transition provisions of IRPA. The relevant provisions are section 190 and 191 which read as follows:
| 190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board. |
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190. La présente loi s'applique, dès que l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne il avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.
191. Les demandes et procédures présentées ou introduites, à l'entrée en vigueur du présent article, devant la Section du statut de réfugié sont, dès lors que des éléments de preuve de fond ont été présentés, mais pour lesquelles aucune décision n'a été prise, continuées sous le régime de l'ancienne loi, par la Section de la protection des réfugiés de la Commission.
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[13] In order for the Applicants to succeed, the Court would have to accept, at least by implication, that the Applicants had a right to make a refugee claim in Canada on November 2, 2001 and that before June 28, 2002, substantive evidence would have been adduced.
[14] On November 2, 2001 when the Applicants arrived back in Canada, they were not entitled to be here without prior Ministerial consent - which they did not have. Therefore the starting point of the Applicants' analysis is flawed.
[15] The Court is further asked to speculate as to what the state of the evidence before the Convention Refugee Determination Division (CRDD) would be as of June 28, 2002. There is nothing which would permit the Court to engage in such speculation.
[16] In my view this judicial review is governed by section 190 of the IRPA and therefore the Applicants cannot succeed. This judicial review will be dismissed.
[17] Given the basis for the Court's conclusion, I do not see that a question for certification arises. This case does not turn upon any acquired rights given the status of the Applicants on November 2, 2001. No question will be certified.
(s) Michael L. Phelan
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8869-03
STYLE OF CAUSE: ERVIN KOVACS, SZIMONETTA KOVACS v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 21, 2004
REASONS FOR ORDER: Phelan J.
DATED: February 21, 2005
APPEARANCES:
Mr. Daniel M. Fine FOR THE APPLICANT
Mr. Stephen Jarvis FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Daniel M. Fine
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT