Federal Court


Immigration

Refugee status
Minister’s position would work against clearly stated policy of family unity

Foreign national was citizen of Iran who became permanent resident of Canada upon her arrival in country on June 13, 2006. Foreign national was dependent of her husband, who was determined to be Convention refugee by visa officer overseas as he had well-founded fear of persecution based on political opinion. Under policy of family unity, foreign national, her husband, and their son became members of Convention Refugees Abroad class and were accepted without assessment. Foreign national returned to Iran on two occasions and minister sought cessation of her Convention refugee status on basis of s. 108(1)(a) of Immigration and Refugee Protection Act for voluntarily re-availing herself of protection of Iran. Refugee Protection Division panel concluded that it did not have jurisdiction to consider minister’s application to cessate refugee status of respondent pursuant to s. 108 of protection act because panel found that foreign national was not Convention refugee as contemplated in s. 95(1)(a) of act. Minister applied for judicial review on threshold jurisdiction issue of whether phrase “has been determined to be Convention refugee” in s. 95(1)(a) of act applied to foreign national as only then would RPD have jurisdiction to cessate her refugee status under s. 108(1) of act. Minister contended that foreign national was deemed to have been so determined by virtue of her acceptance in Convention Refugee Abroad class. Application dismissed. Chapter 10.2 of Citizenship and Immigration Canada processing manual OP 5 states that family members accompanying principal applicant who has been determined to be Convention refugee “derive their refugee status” from principal applicant. However, OP 5 does not have force of law and merely suggests that foreign national has refugee status, and does not say she “has been determined to be Convention refugee” as required by s. 95(1)(a) of act. It would be nonsensical to consider change to foreign national’s status in Canada simply because she visited a country in which her husband was found to be in danger, but in which she never claimed to be in danger. If foreign national’s refugee status were cessated, she would face loss of her permanent resident status under s. 46(1)(c.1) of act with all of the consequences that could have on her and her family. Applicable statutory and regulatory provisions would have to be clearer in order for minister’s position to prevail. Minister’s position would work against clearly stated policy of family unity.

Canada (Minister of Citizenship and Immigration) v. Esfand (Oct. 21, 2015, F.C., George R. Locke J., File No. IMM-1133-15) 259 A.C.W.S. (3d) 738.

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