Judgments

[1995] 2 F.C. 20

IMM-4272-93

Shanti Kaisersingh, Sagar Kaisersingh, Varindra Kaisersingh, Rajendra Kaisersingh, Shiva Kaisersingh (Applicants)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Kaisersingh v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Reed J.—Toronto, December 2 and 13, 1994.

Citizenship and Immigration — Status in Canada — Permanent residents — Judicial review of landing denial as applicants “unable … to support themselves” (Immigration Act, s. 19(1)(b)) — Living in subsidized public housing — Part of backlog class — Act, s. 6(2) providing member of designated class “may” be granted admission subject to regulations — “May” permissive — Specific exclusion from backlog class of those within inadmissible classes in s. 19(1)(c) to (g) and (j) not preventing operation of s. 19(1)(b) to refuse admission — Backlog class not equal to class having refugee status — Within immigration officer’s jurisdiction to decide whether s. 19(1)(b) applicable.

Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Reliance on public housing meaning persons “unable or unwilling to support themselves” within Act, s. 19(1)(b) — Applicability to those in refugee claimants backlog class — Immigration officer having jurisdiction to decide.

This was an application for judicial review of an immigration officer’s refusal to grant landing in that the applicants were unable to support themselves, as evidenced by the fact that they required subsidized public housing, and were accordingly inadmissible under Immigration Act, paragraph 19(1)(b). The applicants argued that, as members of the backlog class, they did not have to meet that statutory requirement.

Act, subsection 6(2) provides that a member of a designated class “may” be granted admission subject to such regulations as may be established with respect thereto. The Refugee Claimants Designated Class includes individuals in Canada on January 1, 1989 who had not had their refugee claims finally determined but who had been found to have a credible basis for their claim, and excludes individuals described in Act, paragraphs 19(1)(c) to (g) and (j) (individuals who have been convicted of certain criminal offences or who are believed to be involved in or may commit certain criminal offences). Subsection 6(1) of the Refugee Claimants Designated Class Regulations provides that an immigration officer may grant landing to members of the class if they meet the requirements of the Act and the Immigration Regulations, 1978, except those from which they are exempted by section 5. Section 5 exempts members of the class from subsection 9(1), which requires every immigrant to obtain a visa before appearing at a port of entry.

The applicants argued that (1) “may” subsection 6(2) means “shall”; (2) by exempting individuals from the requirements of subsection 9(1), they are exempted from the requirements of section 19; (3) the specific exclusion from the backlog class of those who fall within the inadmissible classes in paragraphs 19(1)(c) to (g) and (j) indicates an intention not to exclude those who fall within paragraphs 19(1)(a) and (b) from admissibility; (4) such an interpretation would be consistent with the treatment accorded to individuals who have been granted refugee status after a full hearing. Alternatively, applicants submitted that the decision as to the applicability paragraph 19(1)(b) had to be made by an adjudicator. Finally, it was argued that the immigration officer improperly interpreted paragraph 19(1)(b).

Held, the application should be dismissed.

(1) “May” in subsection 6(3) does not mean “shall”, but even if it did, by the terms of the subsection, admission is “subject to such regulations as may be established.”

(2) Exemption from the requirement to obtain a visa before arriving at a port of entry (section 9) merely allows the members of the backlog to apply for landing from within Canada. It does not necessarily exempt an applicant for admission from the provisions of subsection 19(1).

(3) There is no inconsistency in having some aspects of subsection 19(1) operate to define the backlog class (paragraphs 19(1)(c) to (g) and (j)) and others (paragraphs 19(1)(a) and (b)) having to be met at a later date, when the application for admission is processed.

(4) The backlog class is not equal to the class of persons who have obtained a positive determination on a refugee claim. An individual in the backlog class has demonstrated only a credible basis to his or her claim. The Regulatory Impact Analysis Statement which accompanied publication of the Backlog Regulations made it clear that the requirements of paragraph 19(1)(b) were intended to apply to an application for landing made by a member of the backlog class.

The provisions relied upon for the assertion that only an adjudicator can decide whether the applicants fell within paragraph 19(1)(b) related to the removal of a person from Canada, not to applications for permanent resident status.

The addition of “other than those that involve social assistance” to paragraph 19(1)(b) by S.C. 1992, c. 49, s. 11 was not a change in the law, but a clarification thereof. A person who requires public assistance, in the form of government subsidized housing is unable to support himself.

The following question was certified: Does a person who meets the requirements of the designated class under subsection 3(1) of the Refugee Claimants Designated Class Regulations (the “Backlog Regulations”), SOR/90-40, and who is not excluded by subsection 3(2) of the same regulations have a statutory right of landing (e.g. is not required to meet the requirements of paragraph 19(1)(b) of the Immigration Act to obtain landing)?

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, ss. 6(2), 9(1) (as am. by S.C. 1992, c. 49, s. 4), 19(1)(b) (as am. idem, s. 11), (c) (as am. idem), (d) (as am. idem, c. 47, s. 77), (e) (as am. idem, c. 49, s. 11), (f) (as am. idem), (g), (j) (as am. by R.S.C., 1985 (3d Supp.), c. 30, s. 3), 20(1), 23(3),(4),(7), 27(2)(c), 29(1), 32(1),(3).

Immigration Regulations, 1978, SOR/78-172.

Refugee Claimants Designated Class Regulations, SOR/90-40, ss. 3(1),(2), 4, 5, 6, Regulatory Impact Analysis Statement.

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.) (QL).

DISTINGUISHED:

Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (1992), 97 D.L.R. (4th) 729; 150 N.R. 60 (C.A.); Bitumar Inc. v. Minister of Energy Mines and Resources (1986), 4 F.T.R. 98 (F.C.T.D.).

REFERRED TO:

Kandasamy v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1918 (T.D.) (QL); Kusi v. The Secretary of State of Canada, IMM-1790-94, 11/4/94, no reasons; Mungeni v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1387 (T.D.) (QL); Leung v. Canada (Minister of Employment & Immigration) (1990), 74 D.L.R. (4th) 313; 12 Imm. L.R. (2d) 43; 129 N.R. 391 (F.C.A.).

APPLICATION for judicial review of a denial of landing because the applicants did not meet the requirements of the Immigration Act, paragraph 19(1)(b), in that they were unable to support themselves. Application dismissed.

COUNSEL:

Rocco Galati for applicants.

Kevin Lunney for respondent.

SOLICITORS:

Rocco Galati, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Reed J.: The applicants challenge a decision made by an immigration officer on June 28, 1993. The decision effectively decided that they could not be granted landing in Canada because they did not meet the requirements of paragraph 19(1)(b) [as am. by S.C. 1992, c. 49, s. 11] of the Immigration Act, R.S.C., 1985, c. I-2 as amended (the Act). That paragraph states that persons shall not be admitted to Canada if “there are reasonable grounds to believe … [they] will be unable or unwilling to support themselves.”[1] The applicants are part of what is referred to as the backlog class. This is defined by the Refugee Claimants Designated Class Regulations, SOR/90-40 (Backlog Regulations). It is argued that there is no requirement for individuals who fall into that class to meet the requirements of paragraph 19(1)(b). In addition, it is argued that if there is such an obligation, the decision must be made by an adjudicator, not an immigration officer. Lastly, it is argued that, in any event, the immigration officer, in this case, improperly interpreted the meaning of paragraph 19(1)(b) and improperly applied it to the facts of this case.

Backlog Class—Backlog Regulations

It is necessary to describe the relevant statutory framework in order to assess the arguments which are made on behalf of the applicants. At the relevant time, subsection 6(2) of the Act[2] referred to the Governor in Council’s authority to designate classes of persons who may be admitted to Canada in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted. That subsection provided:

6. …

(2) Any Convention refugee and any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted, may be granted admission subject to such regulations as may be established with respect thereto and notwithstanding any other regulations made under this Act. [Underlining added.]

Pursuant to that subsection, the Governor in Council issued the Backlog Regulations. The class defined by those Regulations, set out in subsection 3(1), comprises individuals who were in Canada as of January 1, 1989 and who had not had their refugee claims finally determined, but who had been found to have a credible basis for their claim.[3] The class is further defined by excluding therefrom individuals who fall into certain categories. These exclusion categories are set out in subsection 3(2) of the Backlog Regulations. They include individuals who are described in paragraphs 19(1)(c) to (g) [as am. by S.C. 1992, c. 47, s. 77; idem, c. 49, s. 11], (j) [as am. by R.S.C., 1985 (3d Supp.), c. 30, s. 3] or 27(2)(c) of the Act.[4] There is no dispute that the applicants fall within the class described by subsection 3(1) of the Backlog Regulations and are not with the exclusions set out in subsection 3(2). Consequently, the applicants obtain the benefit of section 4 of the Backlog Regulations and are entitled to apply for landing:

4. A member of the Refugee Claimants Designated Class may make an application for landing to an immigration officer.

Section 6 of the Backlog Regulations[5] provides that, on such an application for landing, an immigration officer may grant landing to members of the class if they meet the requirements of the Act and the Immigration Regulations, 1978 [SOR/78-172], except for those requirements from which they have been exempted by virtue of section 5. Section 5 of the Backlog Regulations exempts members of the class from subsection 9(1) [as am. by S.C. 1992, c. 49, s. 4] of the Act.[6] Subsection 9(1) of the Act states that every immigrant and visitor shall obtain a visa before appearing at a port of entry. The obtaining of such visa, in normal circumstances, requires that a visa officer determine whether the person may be granted landing or entry to Canada and this includes an assessment as to whether the person falls within any of the inadmissible classes set out in section 19 of the Act.

Applicability of the Requirements of Paragraph 19(1)(b)

Counsel for the applicants argues that as a result of these provisions, once a person is determined to fall within the backlog class, that person does not need to meet the requirements of paragraph 19(1)(b) of the Act in order to obtain landing. This position is based on a number of arguments. Firstly, subsection 6(2) of the Act states that any person falling within a designated class “may be granted admission” [underlining added]. It is argued that in this context, “may” means shall. This interpretation relies upon the decision of the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154and the decision in Bitumar Inc. v. Minister of Energy Mines and Resources (1986), 4 F.T.R. 98 (F.C.T.D.). Secondly, it is argued that if subsection 6(2) of the Act is not read in this way no one is in the backlog: the class is an empty one. This follows, it is said, because by exempting individuals from the requirements of subsection 9(1) of the Act, they are exempted from being required to meet the requirements of section 19 in order to come into the country. Thirdly, the Regulations specifically exclude from the definition of the backlog class those individuals who fall within the inadmissible classes described in paragraphs 19(1)(c) to (g) and (j). Implicit in that definition, is an intention not to exclude from the category of individuals admissible to Canada, as part of the backlog, those who fall within the inadmissible classes described in paragraphs 19(1)(a) and (b). If it had been intended that backlog refugees had to meet those requirements, they would have been among the inadmissible classes set out as part of the definition of the class in subsection 3(2) of the Backlog Regulations. Fourthly such an interpretation is consistent with the treatment accorded to individuals who have been granted refugee status after a full hearing.

With respect to the argument that “may” in subsection 6(2) of the Act must be read as “shall,” I am not persuaded that this is so. Counsel for the applicants relies upon a statement by Mr. Justice Mahoney, at pages 157-158, in the Mayers decision, supra. Mr. Justice Mahoney said:

[T]he favourable decision of one member of the tribunal being conclusive, and the respondent being in the so-called “back-log”, the determination of the adjudicator entitled her to be admitted to Canada. [Underlining added.]

Counsel relies on the underlined words and argues that once his clients have been found to fall within the backlog class they are entitled to be landed. In my view, Mr. Justice Mahoney’s statement cannot be taken so far. The Court of Appeal was dealing, in that case, with a situation in which the issue was the proper disposition of a credible basis decision when the panel members reached opposite conclusions. Their minds were not directed to whether falling within the backlog class gave an automatic right of admission to Canada, as counsel now argues. What is more, if the particular applicant in the Mayers decision had in fact already been determined to meet all the requirements of the Act and regulations, she would be entitled to be landed and, thus, Mr. Justice Mahoney’s statement would be merely a description of the particular consequences for that applicant. The description of the consequences of falling within the backlog class, in all circumstances, cannot be taken as having been decided by Mr. Justice Mahoney in Mayers. In this larger context his decision is dicta only.

The Bitumar decision, supra, describes the law respecting the circumstances in which the word “may” is interpreted as carrying a mandatory connotation. It refers to the principle that when a public officer has authority to exercise a power, for the benefit of persons who are specifically described in the legislation, the power ought to be so exercised. In this case, however, even if the word “may” in subsection 6(2) of the Act is interpreted to mean “shall,” the admission to Canada which “shall” be granted, in accordance with that subsection, is, by the terms of the subsection itself, “subject to such regulations as may be established”. Thus, even if counsel’s argument is correct, his interpretation does not lead to an escape from the need to comply with the regulations.

With respect to counsel’s second argument, I do not read the statutory framework in the same way that he does. Subsection 6(2) of the Act provides for the designating of classes of persons who “may be granted admission subject to such regulations as may be established” (underlining added). Section 3 of the Backlog Regulations defines the class and section 6 of the Backlog Regulations describes the conditions which must be met by class members in order to become landed. One of those conditions is that the individual must meet the requirements of the Act and the Immigration Regulations, 1978. Those requirements include paragraph 19(1)(b) of the Act. The requirement that all the conditions of the Act must be met does not empty the backlog class of all members, as counsel for the applicants argues. Section 5 of the Backlog Regulations removes the need for class members to comply with subsection 9(1) of the Act. Class members are not required to have obtained a visa before arriving at a port of entry. They may make an application for landing from within the country. I am not persuaded that in the context of the relevant provisions, exemption from the requirement to obtain a visa (subsection 9(1) of the Act) necessarily exempts an applicant for admission from the requirements of subsection 19(1). I read the exemption, in section 5 of the Backlog Regulations, as doing no more than allowing the members of the backlog to apply for landing from within Canada.

Counsel’s third argument is that since falling within some of the paragraphs of subsection 19(1) (i.e. paragraphs (c) to (g) and (j)) automatically excludes an applicant from the backlog class this means that the other paragraphs of subsection 19(1) cannot be taken into account at a later stage, as grounds for refusing admission. I am not persuaded that this is so. Paragraphs 19(1)(c) to (g) and (j) exclude from the backlog class those individuals who have been convicted of certain criminal offences or with respect to whom there are reasons to believe they are involved in or may commit certain criminal offences, including subversion, espionage and terrorism. It may seem an unusual and a redundant way of drafting legislation, to use certain requirements of subsection 19(1) of the Act to exclude individuals from the class and other requirements thereof as grounds upon which an individual can be refused admission, at a later stage, but I am not persuaded that this excludes the latter from operating. The exclusions which define the class operate as of the date of the coming into force of the Backlog Regulations. They would not, for example, exclude individuals subsequently convicted of a criminal offence described in paragraph 19(1)(c) of the Act. The application of Backlog Regulation 6(1), however, would exclude from admissibility for landing individuals who committed offences between the time they became members of the class and the time their application for landing was processed. Similarly, the requirements of paragraphs 19(1)(a) and (b) do not lead to an automatic exclusion as of the date the individual falls within the backlog class. Those requirements (medical admissibility and financial independence) are matters that can change over time. They were left for consideration by an immigration officer, in the normal way, at the time the application for landing is processed.[7] Therefore, I do not see an inconsistency in having some aspects of subsection 19(1) operate to define the backlog class and others having to be met at a later date, when the application for admission is processed.

Counsel argues that a member of the backlog class was, by the legislation, being equated to a person who had been granted refugee status after a full hearing (i.e. he states that medical inadmissibility and financial independence are not grounds for refusing landing). I have not been persuaded that this is the case. The backlog class is not equal to the class of persons who have obtained a positive determination on a refugee claim. An individual in the backlog class has demonstrated only a credible basis to his or her claim—there has been no inferences or conclusions drawn with regard to the essential elements of the claim.[8] The backlog category was created to solve administrative problems which had arisen because of the large number of claims that were being received which the system could not process in a timely way. The creation of the backlog class was intended to allow individuals to apply for landing from within Canada. I am not persuaded it was intended to give those individuals a status similar to Convention refugees. I am further persuaded in this view on reading the Regulatory Impact Analysis Statement which accompanied the publication of the Backlog Regulations. That statement makes it abundantly clear that the requirements of paragraph 19(1)(b) of the Act were intended to apply to an application for landing made by a member of the backlog class:

The Government’s intervention is required to clear the backlog of refugee claims, which accumulated prior to the implementation of the new determination system, through an expedited process parallel to the new refugee determination system. In this way, it will be possible to protect the refugee determination system from becoming overwhelmed and thus ineffective in terms of meeting Canada’s obligations to genuine refugees in a timely manner.

…

In order to preserve the efficiency and effectiveness of the new determination system, particularly in the infancy of its implementation, claimants who are defined in the backlog population will have their cases considered under a process separate from the new determination system….

Where a credible basis for the refugee claim can be established, the claimant will be allowed to apply for landing from within Canada. To qualify for landing, the applicant must meet statutory requirements (security, criminal, health) and must not be dependent on public welfare assistance. Those claimants who have a credible basis for their claims, but who are not eligible for landing for the foregoing reasons, will be referred for full hearings of their refugee claims before a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (IRB). [Underlining added.]

Immigration Officer or Adjudicator to make the Decision

Counsel for the applicants asserts that it was not for the immigration officer to make a decision as to whether the applicants fall within paragraph 19(1)(b), that only an adjudicator can make that decision. He relies for his argument on paragraph 19(1)(b), subsections 20(1), 23(3),(4),(7), 29(1), 32(1), and (3) of the Act.

19. (1) No person shall be granted admission who is a member of any of the following classes:

…

(b) persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves ….

…

20. (1) Where an immigration officer is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to a person examined by the officer or otherwise let that person come into Canada, the officer may detain or make an order to detain that person and shall

(a) subject to subsection (2), report that person in writing to a senior immigration officer ….

…

23. …

(3) Where a senior immigration officer does not let a person come into Canada pursuant to section 22 and does not grant admission to or otherwise authorize the person to come into Canada pursuant to subsection (1) or (2), the officer may, subject to subsections (4) and (6),

(a) detain or make an order to detain the person; or

(b) release the person from detention subject to such terms and conditions as the officer deems appropriate …

(4) In the cases described in subsection (3), the senior immigration officer shall

(a) subject to subsection (5), cause an inquiry to be held concerning the person … as soon as is reasonably practicable ….

…

(7) Where a senior immigration officer causes an inquiry to be held concerning a person with respect to whom a report has been made pursuant to paragraph 20(1)(a), the officer shall make a copy of the report available to that person.

…

29. (1) An inquiry by an adjudicator shall be held in the presence of the person with respect to whom the inquiry is to be held wherever practicable.

…

32. (1) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 14(1) or a person who has a right to remain in Canada, the adjudicator shall let that person come into Canada or remain in Canada, as the case may be.

…

(3) Where an adjudicator decides that a person who is the subject of an inquiry is a person who, at the time of his examination, was seeking landing and that it would not be contrary to any provision of this Act or the regulations to grant landing to that person, the adjudicator shall

(a) grant landing to that person, in which case the adjudicator may impose terms and conditions of a prescribed nature; ….

Counsel for the respondent, in my view, easily answered this contention. The provisions to which counsel for the applicants refers all relate to the process of removing a person from Canada. They do not relate to the procedure for making a decision with respect to a person’s application for permanent resident status. Counsel for the respondent notes that in order to remove the present applicants from Canada an inquiry will have to be undertaken and the adjudicator, at that stage, will have to agree that the applicants are not entitled to remain in Canada. That does not, however, mean that the immigration officer was without jurisdiction to make the decision she did on June 28, 1993. That decision was made in the context of reviewing and deciding upon the applicants’ application for admission. I accept that argument.

Interpretation and Application of Paragraph 19(1)(b)

The applicants were assessed for landing some time prior to September, 1992. On September 9 they were sent a letter informing them that they were inadmissible to Canada, pursuant to paragraph 19(1)(b) of the Act. The adult applicants were determined to be unable to support themselves. This conclusion was based on the fact that they had been receiving social assistance since March 1990. At the same time, an immigration officer indicated that their situation would be kept under review and if they could demonstrate an ability to support themselves before their claim for refugee status was heard, by the Refugee Division, the negative decision which had been given would be rescinded.

The applicants ceased receiving social assistance after the first week of September 1992 and were reassessed for landing again sometime prior to mid-June 1993. A letter was sent, dated June 28, 1993, (the decision under challenge in these proceedings) again informing the applicants that they were not admissible because they were unable to support themselves. The letter indicated that this conclusion was evidenced by the fact that the applicants required subsidized public housing and were residing in an Ontario Housing Unit. The subsidy was approximately $525 per month.

Counsel argues that paragraph 19(1)(b), as it read at the relevant time, did not exclude applicants for permanent residence, who were receiving social assistance, from landing on the ground that they were unable or unwilling to support themselves. In addition, it is argued that in determining that the applicants did not meet the requirements of paragraph 19(1)(b) the immigration officer ignored the Minister’s guidelines which state that only in the most extreme cases should refugees be excluded from landing for inability to support themselves.

The first argument is based on paragraph 19(1)(b) as it now reads:

19. (1) No person shall be granted admission who is a member of any of the following classes:

…

(b) persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves and those persons who are dependent on them for care and support, except persons who have satisfied an immigration officer that adequate arrangements, other than those that involve social assistance, have been made for their care and support. [Underlining added.]

The underlined words were added by S.C. 1992, c. 49, s. 11.

I do not interpret the change to paragraph 19(1)(b), which was added by the 1992 amendment, as being a change in the law. Rather, I think it is clearly one made for clarification purposes. A person who requires public assistance, in the form of government subsidized housing, falls within the plain meaning of the words of being unable to support oneself. In this case, I note as well that the applicants apparently did not disclose the total amount of the family income to the Ontario Housing Authority. Thus, they demonstrated, as well, an unwillingness to support themselves. This was not, however, the basis of the immigration officer’s decision.

Counsel for the applicants argues that the immigration officer incorrectly determined that the applicants should be denied admission for failing to demonstrate an ability to be financially independent because the Ministers’ policy guidelines instruct immigration officers to refuse landing to refugees only in “the most extreme cases, where there appears to be no hope of the refugee ever becoming self-sufficient.” This policy, however, relates to individuals who have been found to be Convention refugees, after a full hearing of the merits of their claim by the Refugee Division. For the reasons set out above, members of the backlog class do not fall into that category. For the reasons given the application will be dismissed.

Certification

Counsel for the applicants asks that I certify the following question:

Does a person who meets the requirements of the designated class under subsection 3(1) of the Backlog Regulations and who is not excluded by subsection 3(2) of the same regulations have a statutory right of landing?

I find it somewhat difficult to make a decision on this request. Clearly, from the reasons set out above, I am convinced that the legal position is clear. At the same time, counsel for the applicants is strongly of the other view and he informs me that there are a number of similar cases before the Court with leave having been granted and stays of proceedings entered. The question is clearly one which comes within the criteria set out by the Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (QL). It transcends the interest of the immediate parties and relates to an issue of broad application. It is one which would be determinative of the appeal.

The process of certifying a question is essentially the granting, to one of the parties, by the judge who has rendered a decision, the right to appeal that decision. In such circumstances, I think it is preferable to be generous in granting certification. This will avoid blocking the appeal of an arguable question merely because the judge who is being asked to certify has already reached a conclusion thereon. Certification will be given but I have rephrased the question slightly to make it more explicit. The following question will be certified:

Does a person who meets the requirements of the designated class under subsection 3(1) of the Refugee Claimants Designated Class Regulations (the “Backlog Regulations”), SOR/90-40, and who is not excluded by subsection 3(2) of the same regulations have a statutory right of landing (e.g. is not required to meet the requirements of paragraph 19(1)(b) of the Immigration Act to obtain landing)?

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