Charalampis v. Canada (Minister of Citizenship and Immigration), 2009 FC 1002

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: May 27, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 1002;(2009), 353 F.T.R. 24 (FC)

Charalampis v. Can. (M.C.I.) (2009), 353 F.T.R. 24 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. OC.005

Isabella Charalampis a.k.a. Bukurie Gashi, Rubena Charalampis a.k.a. Rina Gashi By their litigation guardian, Ali Gashi (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3518-08; 2009 FC 1002)

Indexed As: Charalampis v. Canada (Minister of Citizenship and Immigration)

Federal Court

O'Keefe, J.

October 2, 2009.

Summary:

The applicants applied for judicial review under s. 72(1) of the Immigration and Refugee Protection Act of a decision of a visa officer refusing the applicants the ability to file a second refugee claim following the decision to vacate the applicants' and their father's refugee status on the basis that they had misrepresented their claim pursuant to s. 109(1) of the Act.

The Federal Court dismissed the application.

Aliens - Topic 1230.1

Admission - Immigrants - Application for admission - Jurisdiction - Immigration officers (incl. program managers) - [See Aliens - Topic 1336 ].

Aliens - Topic 1301

Admission - Immigrants - Judicial review - General - [See Aliens - Topic 1336 ].

Aliens - Topic 1336

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Jurisdiction - The applicants applied for judicial review of a decision of a visa officer refusing the applicants the ability to file a second refugee claim following the decision to vacate the applicants' and their father's refugee status on the basis that they had misrepresented their claim pursuant to s. 109(1) of the Immigration and Refugee Protection Act - The applicants asserted that the officer erred in finding that the applicants were ineligible under s. 99(3) of the Act to have their claims referred to the Board - They argued that s. 99(3) and 101(1)(b) of the Act violated their rights under the Charter - The Federal Court dismissed the application - The crux of the problem with the applicants' allegations was that the court was being asked to review a decision that an officer was not able to make in the first place - The applicants asked the court to assume that the officer considered the arguments and either rejected them or did not provide adequate reasons for rejecting them - The fact that the officer either did not assess the applicants' arguments or did not provide reasons for rejecting them was in keeping with the officer's power granted under the Act - The officer did not have authority to decide these issues - If an officer was precluded from even making a decision on a constitutional exemption in the first place, it was highly problematic when the court was asked to in turn review a decision beyond the jurisdiction of the officer based on the viability of a constitutional exemption - Jurisdiction was conferred by way of the Federal Court interpreting legislation that was subject to the Charter or determining legal or constitutional questions - Jurisdiction was not conferred by granting ad hoc exceptions based on certain facts to certain statutes to bring them into conformity with the Charter - The applicants were essentially not asking for a review, but for relief that might infringe on Parliament's role and the rule of law and the values that underpinned it: certainty, accessibility, intelligibility, clarity and predictability.

Cases Noticed:

Abdeli v. Canada (Minister of Public Safety and Emergency Preparedness), [2006] F.T.R. Uned. 596 (F.C.), refd to. [para. 15].

VIA Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 15].

Raman v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 140; 246 N.R. 370 (F.C.A.), refd to. [para. 19].

Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404; 242 N.R. 173 (F.C.A.), refd to. [para. 19].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 21].

De Guzman v. Canada (Minister of Citizenship and Immigration) (2005), 345 N.R. 73; 2005 FCA 436, refd to. [para. 25].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 34].

Singh (Balbir) v. Canada (Minister of Citizenship and Immigration) (2006), 294 F.T.R. 227; 2006 FC 684, refd to. [para. 34].

Hamid v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. B86; 2005 FC 1632, refd to. [para. 34].

Bekker v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 713 (T.D.), refd to. [para. 37].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), vol. 2, p. 205 [para. 23].

Counsel:

Clifford Luyt, for the applicants;

Kristina Dragaitis, for the respondent.

Solicitors of Record:

Clifford Luyt, Toronto, Ontario, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on May 27, 2009, at Toronto, Ontario, by O'Keefe, J., of the Federal Court, who delivered the following judgment at Halifax, Nova Scotia, on October 2, 2009.