Jafari v. Minister of Employment and Immigration, (1994) 82 F.T.R. 164 (TD)

• Judge: Nadon, J.
• Court: Federal Court (Canada)
• Case Date: March 28, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 82 F.T.R. 164 (TD)

Jafari v. MEI (1994), 82 F.T.R. 164 (TD)

MLB headnote and full text

Hooshang Attar Jafari (applicant) v. The Minister of Employment and Immigration (respondent)

(IMM-1531-93)

Indexed As: Jafari v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

Nadon, J.

August 22, 1994.

Summary:

Jafari, an Iranian, claimed Convention refugee status. Because Jafari never received an answer to his refugee claim before the amendment of the Immigration Act in 1989, he qualified as a backlog claimant under the Regulations. As a member of the backlog, Jafari was exempted from a full refugee status determination hearing as long as he was determined to have a credible basis for his claim and certain exclusionary criteria were not met. One such criteria was s. 3(2)(f) of the Refugee Claimants Designated Class Regulations which provided that a member of the backlog did not include a person who left Canada and remained outside for more than seven days. Jafari was removed from the Refugee backlog category because of a trip to the United States that exceeded seven days. Subsequently, the Minister conceded that Jafari was eligible to make a refugee claim in Canada and that there was a credible basis for his claim to be a Convention refugee. At that time, a conditional exclusion order was issued. Later, Jafari applied for landed status. Before that application had been dealt with, Jafari applied for an order declaring s. 3(2)(f) of the Regulations ultra vires under the Immigration Act or under ss. 7 and 15 of the Charter and for mandamus to direct the Minister to process and finalize his application for landing in Canada as a member of the Refugee backlog.

The Federal Court of Canada, Trial Division, held that s. 3(2)(f) of the Regulations was ultra vires and ordered the Minister to process and consider Jafari's application for permanent residence without reference to s. 3(2)(f) of the Regulations.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - Jafari's application for Convention refugee status was included in the Refugee backlog which exempted claimants from a full refugee status determination hearing as long as it was determined that his claim had a credible basis - However, Jafari lost his backlog status because he left Canada for more than seven days contrary to s. 3(2)(f) of the Refugee Claimants Designated Class Regulations - Jafari applied to have s. 3(2)(f) declared ultra vires the Immigration Act and in contravention of ss. 7 and 15 of the Charter - Jafari also requested mandamus directing the Minister to consider his application without regard to s. 3(2)(f) of the Regulations - The Federal Court of Canada, Trial Division, held that s. 3(2)(f) was ultra vires and granted mandamus - See paragraph 37.

Aliens - Topic 1338

Admission - Refugees - Refugee claims backlog regulations - General - Because Jafari's claim to Convention refugee status had not been dealt with prior to the 1989 amendments to the Immigration Act, Jafari was included in the Refugee backlog which exempted claimants from a full refugee status determination hearing as long as it was determined that his claim had a credible basis - However, Jafari lost his backlog status because he left Canada for more than seven days contrary to s. 3(2)(f) of the Refugee Claimants Designated Class Regulations - Jafari applied to have s. 3(2)(f) declared ultra vires on the ground that it was arbitrary and accomplished no purpose in accordance with the Immigration Act - The Federal Court of Canada, Trial Division, held that s. 3(2)(f) was ultra vires - See paragraphs 1 to 30.

Aliens - Topic 1339

Admission - Refugees - Member of refugee claims backlog - [See Aliens - Topic 1338 ].

Civil Rights - Topic 1003

Discrimination - Immigration - Refugee claims backlog regulations - Because Jafari's claim to Convention refugee status had not been dealt with prior to the 1989 amendments to the Immigration Act, Jafari was included in the Refugee backlog which exempted claimants from a full refugee status determination hearing as long as it was determined that his claim had a credible basis - However, Jafari lost his backlog status because he left Canada for more than seven days contrary to s. 3(2)(f) of the Refugee Claimants Designated Class Regulations - Jafari submitted that, inter alia, s. 3(2)(f) constituted discrimination and was in contravention of s. 15 of the Charter - The Federal Court of Canada, Trial Division, held that s. 3(2)(f) did not contravene s. 15 of the Charter - See paragraphs 32 to 37.

Civil Rights - Topic 1324

Security of the person - Immigration - Claim to refugee status - Refugee claims backlog regulations - Because Jafari's claim to Convention refugee status had not been dealt with prior to the 1989 amendments to the Immigration Act, Jafari was included in the Refugee backlog which exempted claimants from a full refugee status determination hearing as long as it was determined that his claim had a credible basis - However, Jafari lost his backlog status because he left Canada for more than seven days contrary to s. 3(2)(f) of the Refugee Claimants Designated Class Regulations - Jafari submitted that, inter alia, s. 3(2)(f) contravened his s. 7 Charter right to security of the person - The Federal Court of Canada, Trial Division, held that s. 3(2)(f) did not contravene s. 7 of the Charter - See paragraphs 31 and 32.

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose of regulation authorized by empowering statute - [See Aliens - Topic 1338 ].

Cases Noticed:

Roncarelli v. Duplessis, [1959] S.C.R. 121, consd. [para. 20].

Ulin v. R., [1973] F.C. 319 (T.D.), consd. [para. 21].

Cardona and Minister of Manpower and Immigration, Re (1978), 89 D.L.R.(3d) 77 (F.C.A.), consd. [para. 22].

Steve Dart Co. v. Duer (D.J.) & Co. (1974), 46 D.L.R.(3d) 745 (F.C.T.D.), consd. [para. 23].

Pacific Pilotage Authority v. Alaska Trainship Corp., Pacific Maritime Agencies Ltd. and Ship S.S. Alaska (1979), 28 N.R. 451 (F.C.A.), consd. [para. 25].

Dhami v. Minister of Employment and Immigration (1989), 107 N.R. 95 (F.C.A.), dist. [para. 27].

Horbas v. Minister of Employment and Immigration, [1985] 2 F.C. 359 (T.D.), consd. [para. 28].

Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al. (1994), 164 N.R. 342 (F.C.A.), consd. [para. 29].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13, consd. [para. 32].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, dist. [para. 32].

Kaur v. Minister of Employment and Immigration (1989), 104 N.R. 50; 10 Imm. L.R.(2d) 1 (F.C.A.), dist. [para. 32].

Grewal v. Minister of Employment and Immigration (1991), 135 N.R. 310; 85 D.L.R.(4th) 166 (F.C.A.), dist. [para. 32].

Berrahma v. Ministre de l'Emploi et de l'Immigration (1991), 132 N.R. 202 (F.C.A.), dist. [para. 32].

Nguyen v. Minister of Employment and Immigration (1993), 151 N.R. 69 (F.C.A.), dist. [para. 32].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; [1989] 2 W.W.R. 289; 56 D.L.R.(4th) 1; 34 B.C.L.R.(2d) 273; 36 C.R.R. 193; 25 C.C.E.L. 255, dist. [para. 33].

Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161; 59 D.L.R.(4th) 321, refd to. [para. 33].

Statutes Noticed:

Agricultural Products Standards Act, R.S.C. 1970, c. A-8, sect. 8 [para. 24].

Agricultural Products Standards Act Regulations (Can.), Produce Licensing Regulations, P.C. 1967-2265, SOR/67-605, generally [para. 23].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 32]; sect. 15 [para. 33].

Canadian Citizenship Act, R.S.C. 1970, c. C-19, generally [para. 21].

Canadian Citizenship Act Regulations (Can.), reg. 19(1)(b) [para. 21].

Immigration Act, 1976, S.C. 1976-77, c. 52, sect. 115(1)(b) [para. 27].

Immigration Act, An Act to amend the, S.C. 1992, c. 49, sect. 1(11), sect. 3, sect. 102(1) [para. 12, footnote 1].

Immigration Act, R.S.C. 1985, c. I-2, sect. 6(1), sect. 6(2), sect. 6(3) [para. 12, footnote 1]; sect. 83(1) [para. 38]; sect. 114(1)(a), sect. 114(1)(d), sect. 114(1)(d)(i), sect. 114(1)(d)(ii), sect. 114(1)(e) [para. 12, footnote 1].

Immigration Act Regulations (Can.), Immigration Regulations, SOR/78-172, sect. 4(3) [para. 28].

Immigration Act Regulations (Can.), Immigration Regulations, SOR/84-140, sect. 1 [para. 28].

Immigration Act Regulations (Can.), Refugee Claimants Designated Class Regulations, SOR/90-40, sect. 3(2)(f) [para. 2].

Immigration Appeal Board Act, R.S.C. 1970, c. I-3, sect. 7(3), sect. 8(1) [para. 22].

Pacific Pilotage Regulations (Can.) - see Pilotage Act Regulations (Can.).

Pilotage Act, S.C. 1970-71-72, c. 52, sect. 14, sect. 14(1)(b), sect. 14(1)(c) [para. 25].

Pilotage Act Regulations (Can.), Pacific Pilotage Regulations, SOR/74-242, sect. 9(2)(a), sect. 10(1)(a) [para. 25].

Produce Licensing Regulations (Can.) - see Agricultural Products Standards Act Regulations (Can.).

Refugee Claimants Designated Class Regulations (Can.) - see Immigration Act Regulations (Can.).

Counsel:

Barbara Jackman, for the applicant;

Alice Abbott, for the respondent.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the applicant;

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

This application was heard on March 28, 1994, at Toronto, Ontario and Quebec City, Quebec, respectively, before Nadon, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on August 22, 1994.