Date: 19990414
Docket: IMM-3514-96
Between :
HARBHAJAN SINGH WARACH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Reasons filed pursuant to section 51
of the Federal Court Act in support of
the Order I made herein on April 8, 1999]
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated September 9, 1996, whereby the applicant's claim for refugee status was denied.
[2] Although the Board determined that the applicant has a well-founded fear of persecution if he is returned to Chandigarh, Punjab, and that it was unlikely he has a viable Internal Flight Alternative, it found, however, that there were serious reasons for considering that the applicant was a knowing and willing participant in the execution of a hijacking contrary to the purposes and principles of the United Nations within the meaning of Article 1F(c) of the Schedule to the Immigration Act.
[3] A correct interpretation and application of Article 1F(c) above was therefore crucial for the determination of a serious matter before the Board. It is clear, on the face of the impugned decision, that the Board's findings with regards to Article 1F(c) were generally made in light of the principles as they were defined by the Federal Court of Appeal in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49, which was subsequently overturned by the Supreme Court of Canada (Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982).
[4] I therefore find it more appropriate, in the circumstances, to set aside the Board's decision, to the extent only that it concerns the exclusion of the applicant under Article 1F(c), and to send the matter back for rehearing by a differently constituted panel of the Board who shall determine the question of the applicant's said exclusion in light of the above decision of the Supreme Court of Canada in Pushpanathan.
[5] Learned counsel for the respondent proposed that the following question be certified:
| Is the act of hijacking contrary to the purposes and principles of the United Nations? |
[6] Given the above reasons, I consider the proposition to be premature. In my view, it is preferable to allow the issue of the applicant's exclusion under Article 1F(c) to be first considered and disposed of by the Board in light of the right principles of law, before considering the certification of such a question and any other potentially related questions, if the Board's new decision is also the subject of review by this Court.
JUDGE
OTTAWA, ONTARIO
April 14, 1999