IMM-3085-97
BETWEEN:
CHEA SAY
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
ROTHSTEIN, J.:
The applicant in this stay application is a refused convention refugee applicant. The Convention Refugee Determination Division refused his application on July 4, 1996. In its decision it found that the applicant was a person referred to in section F of article I of the United Nations Charter relating to the status of refugees, (i.e. a person who has committed war crimes or crimes against humanity).
Under subsection 11.4(2) of the Immigration Regulations in force on July 4, 1996, the applicant was deemed to have submitted an application for landing as a member of the Post-Determination Refugee Claimants in Canada Class (PDRCC) to an immigration officer on that day. At that time the definition of member of the PDRCC did not exclude persons referred in section F of article I of the Convention. The applicant sought judicial review and leave was granted. On May 1, 1997, before the judicial review was heard and determined, the Immigration Regulations were amended to exclude from the definition of member of the PDRCC an individual who, as a result of a determination by the Refugee Division, is considered to be a person referred to in section F of Article 1. (See Regulations amending the Immigration Regulations 1978, SOR/97-182, 8 April 1997, subsection 1(2).)
The applicant's judicial review was dismissed on May 26, 1997. On June 20, 1997 the applicant was found by an immigration officer not to be eligible to be a member of the PDRCC by reason of the Refugee Determination Division's that he was a person referred to in section F of Article 1 of the Convention.
The applicant's argument is that he had a vested right to have his PDRCC application considered on the wording of the Immigration Regulations in force on July 4, 1996 (when he was deemed to have made his PDRCC application) which did not exclude persons referred to in section F of Article 1 of the Convention. The applicant had no such vested right. 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. (See Gustavson Drilling v. M.N.R. [1977] 1 S.C.R. 271 at 282.)
The amendments to the Immigration Regulations effective May 1, 1997 expressly refer to persons who fall into the applicant's category, that is, persons who were, prior to May 1, 1997, determined not to be Convention Refugees. (See SOR/97-182, paragraph 5(2)(a).) There is no indication in the amended Regulations that their eligibility to be members of the PDRCC is to be determined by application of a repealed Regulation. On the contrary, the regulatory impact analysis statement contains the following:
| 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. |
| [emphasis added] |
It is clear the intention is that the amended regulations apply to all PDRCC applicants, whether their application is deemed to have been made up to April 30, 1997 or whether they make applications subsequently.
There is no serious issue. The stay application is dismissed.
"Marshall E. Rothstein"
J U D G E
CALGARY, ALBERTA
OCTOBER 29, 1997
IMM-3085-97
BETWEEN:
CHEA SAY
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent.
========================
REASONS FOR ORDER
========================
FEDERAL COURT OF CANADA
TRIAL DIVISION
COURT FILE NO.: IMM-3085-97
STYLE OF CAUSE: CHEA SAY v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, Ontario
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROTHSTEIN
DATED: October 29, 1997
APPEARANCES:
Mr. Edward F. Hung for the Applicant
Mr. David Tyndale for the Respondent
SOLICITORS OF RECORD:
Hung and Associate
Toronto, Ontario for the Applicant
George Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for the Respondent