Digests

Zaheri v. Canada (Minister of Citizenship and Immigration)

IMM-1145-03

2004 FC 446, Russell J.

25/3/04

32 pp.

Judicial review of immigration officer's (officer) refusal of application for permanent residence because applicant person described in Immigration and Refugee Protection Act (IRPA), s. 35(1)(b)--Applicant served with pro-government forces in Afghanistan--Marxist regime of Afghanistan, within which applicant served in military and acted as director of municipality in Kabul, designated by Minister in 1994 as government "engaged in systematic or gross human rights violations"--Hence, applicant found inadmissible to Canada pursuant to IRPA, s. 35(1)(b)--Designation here made before IRPA came into effect--Transitional regulations silent on whether Minister required to re-designate--Applicant submits officer exceeded jurisdiction because applied designation made under former Act--Says since coming into force of IRPA, designation under former Act no longer valid--No specific provision referring directly to ministerial designation under former Act and this matter not appearing to have received authoritative attention--Review of Immigration and Refugee Protection Regulations, s. 317(2) and Interpretation Act, s. 44 suggesting ministerial designation of kind at issue here carried forward and retains validity under IRPA-- Application dismissed--In absence of authoritative decision in this regard, question certified: Does ministerial designation made under s. 19(1)(l) of former Immigration Act continue to be valid and applicable for purposes of s. 35(1)(b) of IRPA or is Minister required to re-designate under IRPA?-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 35(1)(b)--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(l) (as am. by S.C. 1992, c. 49, s. 11)--Interpretation Act, R.S.C., 1985, c. 1-21, s. 44--Immigration and Refugee Protection Regulations, SOR/2002-227, s. 317(2).