Date: 19981109
Docket: IMM-790-98
BETWEEN:
KESTER AGBONZE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario
on Wednesday, September 23, 1998, as edited]
SIMPSON, J.
[1] This is an application under section 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), for judicial review of a decision of an immigration officer (the "Officer") dated February 5, 1998 (the "Decision") wherein he determined that the Applicant was not eligible for the Deferred Removal Orders Class ("DROC").
[2] This case concerns the timing of the Applicant's application to be a member of the DROC. He was obliged to apply in a manner that met the following two criteria: he had to apply by May 1, 1997, and he had to wait three years after the determination of his claim for refugee status before making his application. It is agreed that the Applicant can succeed in his DROC application only if April 28, 1994, is found to be the date of the determination.
[3] In this case, the following dates are relevant:
| April 28, 1994 the date the Refugee Board's reasons were signed as disclosed on the cover page of the reasons; |
| May 2, 1994 the date the notice of decision was signed by the Registrar and sent out; |
| May 6, 1994 the date the Applicant actually received the decision; and |
| May 9, 1994 the date the decision was deemed to be received in law. |
[4] The issue before me is which of the above dates was the date on which the Applicant's refugee claim was determined. In his decision, the Officer concluded that the Applicant's refugee claim was determined on May 9, 1994, being the date he was deemed to receive the notice.
[5] The Applicant's position is that section 69.1(9) of the Act provides that it is the Refugee Board which shall determine whether or not the Applicant is a Convention refugee. In this case, J.A. Brown and Barry L. Thomas sat as members of the Refugee Division. A determination is not made, in the Applicant's submission, by an administrative act of the Registrar in signing and sending out a notice of decision. The Applicant points out that the Registrar is not a member of the Refugee Division and does not hear the case on the merits. Therefore, he cannot be involved in the determination under section 69.1(9). The Applicant says also that the determination is not made when the Applicant actually receives or is deemed to receive a notice of determination.
[6] The Respondent's position is that the determination is made when the Registrar signs and mails a notice of decision. In this case, the notice is dated May 2, 1994, and states that "the Refugee Division determined that the claimant is not a Convention refugee". The Respondent says that, because the word "determined" is used in the notice, it should be treated as the actual determination. In the alternative, the Respondent submits that the Officer correctly decided that receipt of the notice by the Applicant constitutes the determination, although he concedes that the actual receipt of the notice on May 6, 1994, would be the correct determination date.
[7] I have carefully considered the Respondent's submissions, but the Applicant has persuaded me that the Officer erred. In my view, the date of determination can only be the date the decision was reached by the members of the Refugee Board who are the officials charged with making a determination under section 69.1(9) of the Act.
[8] Accordingly, an order will be made setting aside the Officer's decision and directing that the Applicant's DROC application be processed on the basis that his application for refugee status was determined on April 28, 1994.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
November 9, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: KESTER AGBONZE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
COURT NO.: IMM-790-98
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 23, 1998
REASONS FOR ORDER: SIMPSON, J.
(Delivered from the Bench at Toronto, Ontario on September 23, 1998, as edited)
DATED: November 9, 1998
APPEARANCES:
Mr. Dhamon Kissoon for Applicant
Mr. Marcel Larouche for Respondent
SOLICITORS OF RECORD:
Kissoon, Pachai Associates for Applicant
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada