Date: 20040910
Docket: IMM-7141-03
Citation: 2004 FC 1232
BETWEEN:
Romeo N'GALE
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated July 21, 2003, that the applicant is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the new Act) on the basis of ineligibility.
[2] Romeo N'Gale (the applicant) is a citizen of Cameroon making a second refugee claim in Canada. He was born on January 29, 1990, and as a minor, Laurence Cozza of SARIMM is acting as his designated representative.
[3] The IRB determined that the applicant is not a "Convention refugee" or a "person in need of protection" because his claim was ineligible in regards to the provisions of the Act then in effect and that the claim had not become eligible under the new Act.
[4] The relevant provisions of the former Act (the Immigration Act, R.S.C. 1985, c. I-2) are as follows:
| 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 . . . |
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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, [. . .] |
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| (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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(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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[5] The relevant provision of the new Act is the following:
| 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if . . . (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_: [. . .] b) rejet antérieur de la demande d'asile par la Commission; |
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[6] The relevant provision of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the regulations) is the following:
| 339. A determination made in Canada before the coming into force of this section that a person is not a Convention refugee is deemed to be a claim for refugee protection rejected by the Board. |
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339. Est assimilée au rejet d'une demande d'asile par la Commission la décision rendue au Canada avant l'entrée en vigueur du présent article selon laquelle une personne n'est pas un réfugié au sens de la Convention. |
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[7] The applicant submits that the IRB erred in determining that his claim was ineligible because it did not raise the possibility that the claim would be dismissed for lack of jurisdiction at the hearing, thereby preventing him from making submissions on that point.
[8] This submission is unfounded. The IRB's decision was based on the evidence before it at the hearing, such as the undisputed fact that the applicant had already made a refugee claim that had been dismissed by the IRB. Further, the applicant has not made any serious argument that he could have submitted to the IRB to influence its decision on that point.
[9] Moreover, the applicant submits that the IRB had the duty to make a decision on the merits of his claim because it had promised him it would do so. A careful review of the record and the hearing transcript does not indicate that such a promise had been made. Whatever the case, since the legitimate expectation raised by the applicant directly contradicts the provisions of the new Act and the former Act on the matter of the eligibility of the claim, he cannot now avail himself of the legitimate expectation doctrine to warrant the intervention of this Court. In Demirtas v. Canada (M.E.I.), [1993] 1 F.C. 602, the Federal Court of Appeal in fact stated the following about this doctrine at pages 610 to 612:
. . . In order for the respondents to be able to rely on the doctrine of legitimate expectation, they must first be able to establish that promises were made to them by an administrative authority3. . . .
. . .
. . . . In order for the doctrine of legitimate expectation to apply, there must also be no statutory bar. In Attorney-General of Hong Kong v. Ng Yuen Shiu4, the Privy Council, although it recognized the doctrine of legitimate expectation, nonetheless held that the statutory rule must prevail in the event of conflict, as follows:
The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. [Emphasis added.]
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In these circumstances, even if we admit that expectations were created and that it was legitimate for the respondents to rely on them, the doctrine of legitimate expectation cannot apply in view of the contrary provisions of the Act and the fact that those provisions must prevail.
3. Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.); Attorney-General of Hong Kong v. Ng Yuen Shiu, [1983] 2 A.C. 629 (P.C.).
4. [1983] 2 A.C. 629 (P.C.).
5. Idem, at page 638.
[10] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
September 10, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7141-03
STYLE OF CAUSE: Romeo N'GALE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 10, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 10, 2004
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Isabelle Brochu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec