In the matter of Harkat

In the matter of Harkat

Because Mr. Harkat had earlier been determined to be a Convention refugee he is a 'protected person' within s.95/115 and thus expressly excluded from applying for protection under s.112(1); being named in a security certificate does not by itself constitute inadmissibility under s.115(2) until the certificate is judicially determined to be reasonable; regulations cannot override the clear statutory exclusion, so the motion for suspension under s.79 to permit an application for protection was dismissed.

Citation
2003 FCT 759
Parties
Named Person / Subject of Certificate: Mohamed Harkat; Referring Party / Crown: Minister of Citizenship and Immigration; Referring Party / Crown: Solicitor General of Canada
Court
Federal Court
Jurisdiction
Canada
Judgment Date
19 June 2003
Procedural Posture
Security Certificate Referral Under the Immigration and Refugee Protection Act / Motion Under S.79 for Suspension to Permit Application for Protection
Outcome
Motion dismissed
Legal Topics
Security Certificate, Pre Removal Risk Assessment, Refugee Protection, Non Refoulement, Suspension of Proceedings, Judicial Review
Source Language
English
Immigration Law Administrative Law Refugee Law Statutory Interpretation Security Certificate Pre Removal Risk Assessment Refugee Protection Non Refoulement +2 more

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Parties

Mohamed Harkat

Named Person / Subject of Certificate

Minister of Citizenship and Immigration

Referring Party / Crown

Solicitor General of Canada

Referring Party / Crown

Procedural Posture

Security Certificate Referral Under the Immigration and Refugee Protection Act / Motion Under S.79 for Suspension to Permit Application for Protection

Legal Issues

  1. 1 Whether a person who is a 'protected person' under s.95/115 is excluded from applying for protection under s.112(1)
  2. 2 Whether being named in a security certificate constitutes inadmissibility for the purposes of the exception in s.115(2)
  3. 3 Whether regulations or procedural provisions permit an application for protection despite the exclusion in s.112(1)

Ratio Decidendi

Because Mr. Harkat had earlier been determined to be a Convention refugee he is a 'protected person' within s.95/115 and thus expressly excluded from applying for protection under s.112(1); being named in a security certificate does not by itself constitute inadmissibility under s.115(2) until the certificate is judicially determined to be reasonable; regulations cannot override the clear statutory exclusion, so the motion for suspension under s.79 to permit an application for protection was dismissed.

Court Disposition

Motion dismissed

Orders

  • Motion dismissed
  • No order as to costs