Federal Appeal


Application to quash s. 104 notice was properly dismissed

Applicant sought refugee protection claiming fear of persecution as result of his activities with Kurdish Democratic Party of Iran. Before his refugee claim could be heard by Refugee Protection Division (RPD), applicant’s case was referred to Immigration Division (ID) for determination as to his admissibility. ID found applicant was inadmissible for being member of organization that it had reasonable grounds to believe had been engaged in subversion by force of Iranian government. Canadian Border Services Agency (CBSA) officer gave notice to applicant and RPD under s. 104 of Immigration and Refugee Protection Act that applicant had been determined to be inadmissible on security grounds (s. 104 notice). Implicit from wording of notice was CBSA officer believed applicant’s refugee claim was now ineligible, and termination of his pending RPD proceeding necessarily followed. Applicant’s application to quash s. 104 notice was dismissed. Trial judge found officer’s interpretation of IRPA was both reasonable and correct. Trial judge found applicant had not demonstrated principles of judicial comity should not apply, or that there was basis for reaching different conclusion. Trial judge found legislative scheme, legislative history and principles of legislative construction all supported conclusion reached in earlier decision. Applicant appealed. Appeal dismissed. Neither case law nor enactment of Protecting Canada’s Immigration System Act had any impact on s. 104 notice. Application for ministerial relief had no bearing on operation of s. 104. Fact that officer takes notice of facts and communicates legal consequence imposed by Act did not make officer decision-maker with discretion.

Haqi v. Canada (Minister of Public Safety and Emergency Preparedness) (Nov. 17, 2015, F.C.A., Nadon J.A., A.F. Scott J.A., and Rennie J.A., File No. A-30-15) Decision at 249 A.C.W.S. (3d) 639 was affirmed.  261 A.C.W.S. (3d) 689.

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