Bageh v. Canada ( Minister of Citizenship and Immigration )
IMM-6777-98
Denault J.
22/11/99
10 pp.
Application for judicial review of immigration officer's decision refusing to reopen applicant's claim for Convention refugee status-Applicant arrived in Canada in April 1998 as stowaway on ship-First claimed refugee status, then signed form indicating did not want to continue refugee claim-On same day, senior immigration officer (SIO) issued departure order-Applicant then changed his mind, saying afraid to go back to Iraq and wanting to continue refugee claim-Immigration officer denied application, stating applicant not entitled to SIO review for reopening refugee case-Application allowed-According to Act, s. 44(2), as soon as immigration officer established that applicant was claiming refugee status and was not person against whom removal order had been made but not executed, required to forthwith refer claim to SIO-Pursuant to Act, s. 45(1), SIO then had to ascertain whether applicant eligible to have claim determined and, if subject of report under Act, s. 27(2), make removal order against him-In December 1998, applicant applied to SIO to have claim for refugee status reopened-Clearly wanted decision not to refer case to SIO reconsidered and initial claim for refugee status reopened-Immigration officer erred in considering December 1998 application new claim for refugee status instead of application to have initial claim reopened-Also erred in deciding applicant not entitled to review of application to reopen claim by SIO-Applicant herein had in fact made claim for refugee status, not simply expressed inten tion to do so-At that point, immigration officer required under Act to forthwith refer claim to SIO, which failed to do-Under Act, s. 45(1), only SIO could determine applicant eligible to have claim determined by Refugee Division-Only SIO could make decision on application to have claim reopened-In acting as he did, immigration officer assumed jurisdiction of SIO-Even assuming immigration officer had jurisdiction to make decision, erred in making it as no reference in Act to matter less than actual claim to refugee status which could be characterized as "only intent to make claim"-Relevant questions certified-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(2) (as am. by S.C. 1992, c. 47, s. 78; c. 49, ss. 16, 123); 44(2) (as am. by S.C. 1992, c. 49, s. 35), 45(1) (as am. idem; 1995, c. 15, s. 8).