Paul Tonato v. Minister of Employment and Immigration

REASONS FOR JUDGMENT

Petitioner seeks an interlocutory injunction and what he refers to as a declaratory judgment against a decision rendered on September 12th, 1984 ordering his deportation pursuant to Section 37 (6) of the 1976 which he contends violates Articles 7 and 12 of the Canadian Charter of Rights and Freedoms and fails to respect the audi alteram partem rule. The petition was drawn in great haste as Petitioner was being held at the Immigration Offices on the afternoon of February 19th, 1984 and was unable to communicate with his attorney until February 20th, and the attorney was informed on the morning of February 21st that Petitioner would be deported on February 22nd. This no doubt accounts for ambiguous drafting of the Petitioner's conclusions which ask that the authorities of the Ministry be prohibited from deporting the Petitioner until they have proceeded with an Immigration hearing and Petitioner has been able to exercise the recourses provided in Articles 45 and 70 of the Immigration Act, and also that the deportation order of September 12th, 1984 be declared to be null and without effect.

Petitioner's counsel argued that he concedes that a declaratory judgment cannot be rendered on a simple petition but what was really sought was that the order of September 12th, 1984 should be quashed, or a finding in the nature of a prohibition or injunction be made that Petitioner be not deported until he has had a hearing. By an earlier decision of Justice Pinard granted by consent Respondent has agreed to suspend the deportation until a final judgment on this petition.

The matter is far from simple and I believe Petitioner's situation should be dealt with on its merits rather than as a result of any defects in procedure, since on the one hand we have the provisions of the Immigration Act which have been strictly complied with and on the other hand the recent judgment of the Supreme Court of Canada in the case of Harbhajan Singh et al v. Minister of Employment and Immigration, dated April 4, 1985, which, while not directly in point certainly indicates that a person seeking Convention refugee status is entitled to a hearing, including the opportunity to be advised of and to deal with the evidence against him before his refugee claim is finally decided.

The facts as revealed by the affidavits and annexed exhibits submitted in evidence are as follows:

Applicant was born on January 28th, 1956 at Grand Popo, Benin, West Africa. He is a citizen of that country nor does he claim to have residence status anywhere else. He came to Canada on June 27th, 1982 as a participant in a youth exchange programme sponsored by a non-government organization known as "Frontier Foundation" and worked as a volunteer for it in native rural communities in Alberta. He was admitted by a ministerial permit pursuant to Article 37 of the Act. This was renewed on September 2nd, 1982 until March 2nd, 1983. On February 23rd, 1984 nearly a year later he was given a notice by the Minister advising him that his permit would not be renewed and that he should leave Canada before March 8th, 1984.

On October 3rd, 1983 he had given an address to the Immigration Appeal Board stating that he resided at 8645 Pie IX Boulevard, Apt. 37 in Montreal. On January 7th, 1985 he phoned the Joan Talon office of Immigration in Montreal to give an address change, stating that henceforth he would be at 2673 Coleraine, Montreal. His record was then transferred to the Dorchester Street Office. Between October 3rd, 1983 and January 7th, 1985 he had not advised of any other change of address. On October 22nd, 1984 a letter from the Commission sent to his last known address was returned as unclaimed so accordingly a search was made for him. On November 7th, 1984 an arrest warrant was issued. Both this arrest warrant and deportation order were brought to his attention when he Came to the Immigration Office on February 19th, 1985 accompanied by Roger Forget a Franciscan Brother seeking a work permit. He stated that he had been living at 2673 Coleraine in Montreal for three months but had left his address at 8645 Pie IX Boulevard for more than a year and in between had resided at St. François du Lac on a farm. He also stated that he had a brother living in Canada since November 28th, 1949 whose telephone number he gave to the Immigration Officer. He was thereupon arrested.

Most of this is admitted by the Petitioner. His affidavit also states that he is afraid to return to Benin because of persecution due to his political opinions and belonging to a social group. He has never had an immigration hearing but claimed refugee status in a sworn statement dated January 17th, 1983. This was refused by the Minister on advice of the Refugee Status Advisory Committee on June 22nd, 1983. The letter states (translated) "Information which you have provided does not establish that you have reason to fear persecution. You state that the people in the south of your country are victims of discrimination and that for example they do not have access to higher education. Nevertheless you have not been prevented from doing your studies and nothing indicates in your claim that you have suffered the discrimination of which you speak in general terms. Certain parts of your declaration are contradictory and further weaken the basis of your claim. You state that military service is obligatory in Benin, but you say that you entered the army voluntarily. You state that you were enlisted at the age of 25 years but since according to your statement you entered the army in 1978 you would have been a soldier for three years before you attained the age of 25 which raises some doubt as to the accuracy of your statements. The letter goes on to say (translated) "As your claim for refugee status was not presented at a hearing held pursuant to the Immigration Act you cannot ask the Immigration Appeal Board to examine it. However if you become subject to an inquiry in virtue of the Immigration Act 1976 you will be able to submit a new claim for refugee status pursuant to paragraph 45 (1) of the Act although permit me to remark that the Minister cannot discuss precise details of your actual claim."

As a result of this the Petitioner states that since March 8th, 1984 he had been waiting to be called before an Immigration Inquiry at which he could again claim the status of refugee and that his claim could eventually be reviewed by the Immigration Appeal Board pursuant to Section 70 of the law. When he went back to the Jean Talon office it was to advise them that he was still in the country.

He states that on November 30th, 1984 and January 3rd, 1985 he went to the offices of the Ministry of Cultural Affairs and Immigration of Quebec to ask for a certificate of selection from Quebec based on his ties to Quebec and his fear of returning to Benin. He has a brother in Montreal married to a Canadian. He complains that the decision of September 12th, 1984 ordering his deportation was made in his absence and that he was never given a copy of it until it was given to his attorney on the morning of February 21st, 1985, which is in conflict with the affidavit of the Immigration Officer who says it was called to his attention at the meeting of February 19^th, 1985, but nothing turns on this. He states that he has now been informed by the Immigration Officer that there will be no revision of his detention or any Immigration Inquiry in his case. He had no idea until he was arrested that he had been ordered to be deported from Canada. The deportation order was properly made pursuant to Section 37 (6) of the Act which reads as follows:

37. (6)   Where a person who has been directed by the Minister to leave Canada within a specified period of time fails to do so, the Minister may make a deportation order against that person.

The same applies to the cancellation of the permit. Subsections (4) and (4) of Section 37 read as follows:

37. (4)   The Minister may at any time, in writing, extend or cancel a permit.

37. (5)   The Minister may, upon the cancellation or extension of a permit, make an order against the person to whom the permit was issued or direct that person to leave Canada within a specified period of time.

The decision is an administrative one not one required to be made on a judicial or quasi-judicial basis although it must of course be made fairly. In the case of The Minister of Manpower and Immigration v. Latchman Hardayal [1978] I. F.C. 470 at page 477 Spence, J. states:

Certainly the decision of the Minister to cancel the permit is an order "of an administrative nature".

While this decision was under the provisions of the former Immigration Act and before the Canadian Charter of Rights and Freedoms, his comments on page 478-79 of the judgment that a ministerial permit is something to be used in exceptional circumstances and chiefly for humanitarian purposes in order to give flexibility to the administration of the immigration policy would still appear to be valid. The recent Singh case however would now appear to invalidate the statement made at page 478-9 to the effect that "I cannot conclude that Parliament intended that the exercise of the power be subject to any such right of a fair hearing as was advanced by the respondent in this case". At page 479 the judgment goes on to suggest that the failure of a Minister to act fairly however in exercising his administrative power might give rise to a right to the person affected to take proceedings under s. 18(a) of the Federal Court Act, but the decision is not subject to review under s. 28.

Subsection 45 (1) of the Act reads as follows:

45. (1)   Where, at any time during an inquiry, the person who is the subject of the inquiry claims that he is a Convention refugee, the inquiry shall be continued and, if it is determined that, but for the person's claim that he is a Convention refugee, a removal order or a departure notice would be made or issued with respect to that person, the inquiry shall be adjourned and that person shall be examined under oath by a senior immigration officer respecting his claim,

Other subsections provide for examination under oath which is forwarded to the Refugee Advisory Committee which advises the Minister. Subsection (5) reads as follows:

45. (5)   When the Minister makes a determination with respect to a person's claim that he is a Convention refugee, the Minister shall thereupon in writing inform the senior immigration officer who conducted the examination under oath respecting the claim and the person who claimed to be a Convention refugee of his determination.

Subsection 70 (1) reads:

70. (1)   A person who claims to be a Convention refugee and has been informed in writing by the Minister pursuant to subsection 45(5) that he is not a Convention refugee may, within such period of time as is prescribed, make an application to the Board for a redetermination of his claim that he is a Convention refugee.

and Subsection 71 (1) reads:

71. (1)   where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application and if, on the basis of such consideration, it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established, it shall allow the application to proceed, and in any other case it shall refuse to allow the application to proceed and shall thereupon determine that the person is not a Convention refugee.

The Singh case decided that Subsection 71 (1) of the Act is inconsistent with the holding of an oral hearing and accordingly incompatible with Section 2 (e) of the Canadian Bill of Rights and Section 7 of the Canadian Charter of Rights and Freedoms. The Court held inoperative all the wording of Subsection 71 (1) following the words "where the Board receives an application referred to in subsection 70(2) it shall forthwith consider the application."

The finding in the Federal Court of Appeal case of Roseline Vincent v. The Minister of Employment and Immigration, Court No. A-144-83 a judgment of June 27th. 1983^* can also now be subject to question as a result of the Harbhajan Singh case. It differs on its facts from the present case in that up to the time the Minister made the deportation order the appellant had given no indication that she wished or intended to apply for refugee status unlike the present case where such indication had been given and dealt with by the Minister on advice of the Refugee Status Advisory Committee. At page 2 of the judgment Justice Heald states:

In making the deportation order, the Minister was performing an administrative act. He was under no duty to act judicially or quasi-judicially. He was, of course, bound to act fairly.

At page 5 he states:

It is true that the making of the deportation order had the effect of cutting the appellant off from the possibility, since she was out of status, of being proceeded against under section 27 of the Immigration, 1976. If she had been proceeded against under that section and an inquiry had been ordered, she would have had the opportunity of claiming refugee status as do all others who are proceeded against under section 27 and wish to make such a claim.

It remains, however, that the right to claim Convention refugee status and to have the claim determined by the Minister is limited by the Immigration Act, 1976 to a claim which is made during an inquiry. This limitation is imposed as part of a legislative scheme established by Parliament acting within its legislative competence. In my view, section 7 of the Canadian Bill of Rights does not, in the circumstances of case, require us to construe and apply subsection 37 (6) of the Immigration Act, 1976 so as to hold that the Minister was not authorized by the subsection to make the deportation order he made against the appellant; or to construe section 50 of the Act as not being applicable to execution of the order.

In the recent case of Kathiresu Arumugam and Minister of Employment and Immigration, Court File No. T-324-85 a judgment dated April 10th, 1985, a few days after the Singh judgment but written before it had been called to my attention I rejected a writ of certiorari quashing determinations by Respondent that the applicant was not a Convention refugee, and the examination under oath held in his case and that of another T-325-85 Balakumar Canagaratnam heard at the same time. I also rejected a writ of mandamus requiring Respondent to again determine the Applicants" claims to be refugees in accordance with Section 45 of the Act. The applicants were complaining about the manner in which the officer examining the applicants pursuant to subsection 45 (1) of the Act conducted it. Reference was made in this decision to the judgment of Justice Marceau in the case of Milius v. Minister of Employment and Immigration 55 NR 389 where he said at page 393:

... the scheme of the Act with respect to a refugee status claim appears to me to preclude the possibility for a claimant to resort to certiorari proceedings for reason of inaccuracies in his examination under oath, because it itself provides for an alternative remedy which was devised in part to cover precisely the case. In the declaration under oath that he is required to file when he applies under section 70 of the Act for a redetermination of his claim by the Immigration Appeal Board, an applicant has all the opportunities he may wish to have to rectify, complete, or otherwise explain the answers he actually gave or appears to have given during his previous examination by the Senior Immigration Officer.

Reference was also made to the Court of Appeal case of Samuel Badu Brempong v. Minister of Employment and Immigration [1981] I F.C. 211 dealing with a Section 28 application to review and set aside a determination by the Minister that the applicant was not a Convention refugee. At page 218 the judgment rendered by Justice Urie reads:

My view in this regard is reinforced by the fact that sections 70 and 71 of the immigration Act, 1976, provide for a dissatisfied claimant for refugee status, the right to apply to the Immigration Appeal Board for a redetermination of his claim. The application to the Board must be accompanied by a declaration, under oath, in which the applicant is required to set forth in reasonable detail the facts, information and evidence upon which he intends to rely. Thus, it may supplement the evidence adduced in the examination before the senior immigration officer.

It is in the nature of a "hearing" de novo. This Court has held that the redetermination is amenable to section 28 relief in appropriate cases because it must be made on a quasi-judicial basis.

The claimant's rights will not finally be determined until all remedies available to him have been exhausted. The applicant herein recognizes that fact in that, as already pointed out, he has already applied to the Immigration Appeal Board for a redetermination with all the rights accruing therefrom, including the right to apply to this Court under section 28 of the Federal Court Act for appropriate relief.

In the case of Daljit Singh unreported File No. A-579-83 judgment dated December 15^th, 1983 at page 12 Justice Heald stated:

...There may well be cases where the non-compliance with subsection 45 (6) would be so "fundamentally erroneous" as to require that the Minister's determination be treated as a nullity. Whether a fundamental error of such magnitude is present in a particular case must be left to the particular tribunal concerned with the facts of that case.

In the Arumugam case I adopted the statement of Justice Marceau in the Milius case (supra) stating that although the common law right to certiorari might not be entirely excluded as a result, of the redetermination procedure available before the Immigration Appeal Board it is one which should not be used when this other and better procedure is available and has in fact been initiated, as it had been in that case. In concluding I stated at pages 20-21:

The proper forum in which to go into, the merits of the application is by way of a request for a redetermination of the Minister's decision by the Immigration Appeal Board as provided for in Section 70 (1) of the Act. Subsection (2) of said section 70 which provides the application for redetermination should contain summary in reasonable detail of the information and evidence intended to be offered at the hearing". New evidence can therefore be presented in the application for redetermination and after the decision of the Immigration Appeal Board, if the application is allowed a further appeal can then be made to the Federal Court of Appeal on any question of law. The Court was informed that in these two cases Section 70 applications have been made for redetermination of the Applicants' refugee claims. It would appear to be only in a rare and very exceptional case of an obvious failure to apply provisions of the law that the Trial Division should interfere by way of writ of certiorari quashing a determination by the Respondent that an applicant is not a Convention refugee or issue a mandamus requiring Respondent to again determine an Applicant's claim.

What applicants are seeking to do is to by-pass the normal appeal procedure and seek an immediate determination of the issue by section 18 proceedings.

In that case the Petitioner had a right of appeal to the Immigration Appeal Board which had already been initiated, whereas in the present case no such right of appeal exists. Provided that leave to appeal was granted pursuant to Section 71 (1), it would not therefore conflict with the recent Supreme Court judgment in the Harbhajan Singh case. The problem in the present case arises from the wording of Section 45 (1) of the Act (supra) which deals with procedure when a person claims that he is a Convention refugee "at any time during an inquiry" and the redetermination and appeals procedure in Sections 70 and following refer back to Section 45. The Act does not appear to provide any protection by way of a hearing for someone coming to Canada neither as a visitor nor as an immigrant who is admitted by ministerial permit, the renewal of which can be refused at any given time by an administrative act of the Minister. It has been the practice apparently, as counsel agree, to permit such a person while legally in the country by virtue of a Minister's permit to apply for Convention refugee status which is then considered by the Refugee Status Advisory Committee, which in this case was done apparently on the basis of a sworn statement, and on June 22nd, 1983 the Minister's decision from which there is no appeal refused to grant this status. Although the ministerial permit to remain in Canada had expired on March 2nd, 1983 it was not until February 23rd, 1984 that action was taken directing him to leave the country by March 8th.

Respondent submits that although Petitioner may never have had a hearing nor has he a right of appeal under the Act the Court cannot alter the law so as to give him rights which the Act does not give him. There is nothing in the Act which gives the Petitioner the choice of proceeding by way of an immigration inquiry when entering the country by virtue of a ministerial permit under Section 37 so by proceeding this way the Minister did not deprive him of any right. At pages 46 and following of the judgment of Madam Justice Wilson in the Harbhajan Singh case (supra) some doubt is expressed as to a distinction between privileges and rights which had narrowed the scope of the application of the Canadian Bill of Rights. She said this analysis is not acceptable in relation to the Charter. At pages 48 and 49 the judgment points out:

...if the appellants had been found to be Convention refugees as defined in s. 2(1) of the Immigration Act they would have been entitled as a matter of law to the incidents of that status provided for in the Act. Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a "well-founded fear of persecution", it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.

At page 70 the judgment reads:

The significance of the limitation of the Court's judicial review power under s. 28 of the Federal Court Act is apparent from the decision of Urie J. in Brempong v. Minister of Employment and Immigration (supra). In that case, Urie J. observed that s. 28 provided the Federal Court of Appeal with supervisory powers only over decisions made on a "judicial or quasi-judicial basis" and that accordingly the Court had no jurisdiction to review what he characterized as an "administrative" decision by the Minister under s. 45 of the Immigration Act. The Board is a quasi-judicial body and without doubt its determinations are subject to review under s. 28. The question the Court faces, as I see it, is whether the broader remedial power which it possesses under s. 24 (1) of the Charter entitles it to extend its review of possible violations of the Charter to the Ministerial determinations made pursuant to s. 45 of the Immigration Act. In my view it does not.

At page 71 the judgment reads:

Section 24 (1) of the Charter provides remedial powers to "a court of competent jurisdiction". As I understand this phrase, it premises the existence of jurisdiction from a source external to the Charter itself. This Court certainly has jurisdiction to review the decisions of the Immigration Appeal Board in these cases pursuant to s. 28 of the Federal Court Act. If the appeals originated as petitions for certiorari brought in the Trial Division of the Federal Court pursuant to s. 18 of the Federal Court Act, the Ministerial decisions made pursuant to s. 45 of the Immigration Act would be subject to review. In my view, however, any violations of the Charter which arose out of Ministerial decisions under s. 45 are not subject to review on these appeals because of the judicial limitations on the Federal Court of Appeal under s. 28 of the Federal Court Act. I would accordingly, make no observations with respect to them or with respect to the question of whether or to what extent s. 45 of the Immigration Act is of no force and effect as a result of any inconsistency with the Charter.

In the present case it was the ministerial decisions which Petitioner seeks to have quashed pursuant to Section 18 of the Federal Court Act.

The judgment of Justice Beetz in the Singh case reads at page 11:

What the Appellants are mainly justified of complaining about in my view is that their claims to refugee status have been finally denied without their having been afforded a full oral hearing at a single stage of the proceedings before any of the bodies or officials empowered to adjudicate upon their claim on the merits. They have actually been heard by the one official who has nothing to say in the matter, a senior immigration officer. But they have been heard neither by the Refugee Status Advisory Committee, who could advise the Minister, neither by the Minister, who had the power to decide and who dismissed their claim, nor by the Immigration Appeal Board which did not allow their application to proceed and which determined, finally, that they are not Convention refugees.

I do not wish suggest that the principles of fundamental justice will impose an oral hearing in all cases.

At pages 14 and 15 he agrees with Appellants' submission as follows:

The Appellants submit that although "fundamental justice" will not require an oral hearing in every case, where life or liberty may depend on findings of fact and credibility, and it may in these cases, the opportunity to make written submissions, even if coupled with an opportunity to reply in writing to allegations of fact and law against interest, would be insufficient.

There is no doubt that the Immigration Act is unfair in not giving any recourse by way of appeal to an Applicant for Convention refugee status who applies for the same other than during the course of an inquiry, being at the time legally in the country by virtue of a ministerial permit pursuant to Section 37 of the Act. Petitioner's objective could be attained by replacing Section 45 (1) of the Act by something to the effect that any person claiming to be a Convention refugee shall be examined under oath by a senior Immigration Officer respecting his claim. This would be an amendment to the Act however which the Court cannot order.

A somewhat similar result could be accomplished by amending Subsection 70 (1) of the Act by omitting the words "pursuant to subsection 45 (5)" and similarly in subsection (2) by omitting the words "referred to in subsection 45 (1)". This would also appear to be a matter for Parliament and not for the Court.

Nevertheless the Supreme Court in the Singh judgment has declared part of Section 71 (1) of the Immigration Act inoperative as being inconsistent with the principles of fundamental justice set out in Section 7 of the Canadian Charter of Rights and Freedoms (three Justices, Madam Justice Wilson, Chief Justice Dickson and Justice Lamer) or as being in conflict with Section 2 (e) of the Canadian Bill of Rights) (three Justices, Justice Beetz, Estey and McIntyre) in that the portion of Section 71 (1) providing a discretion as to whether an applicant's appeal shall be allowed to proceed before the Immigration Appeal Board is Inconsistent with a fair hearing in accordance with the principles of fundamental justice. It would appear open to this Court therefore on a Section 18 application to find that the words in subsection (1) of Section 70 "pursuant to subsection 45 (5)" and in subsection (2) "referred to in subsection 45 (1)" should also be inoperative since, by their reference to section 45, they restrict appeals to the Immigration Appeal Board from a ministerial decision based on a claim for Convention refugee status to claims made during the course of an inquiry, thereby creating discrimination against those persons such as Petitioner for whom an inquiry has not been ordered and cannot be demanded. Such a discrimination is clearly contrary to the principles set out in the Supreme Court judgment in the case of Singh. As a Court of competent jurisdiction over the present section 18 proceedings I believe that pursuant to section 24 (1) of the Charter of Rights and Freedoms I may order an appropriate remedy.

An order will therefore be issued as follows:

1.         The words "pursuant to subsection 45 (5)" in subsection (1) of Section 70 of the Immigration Act 1976 and the words "referred to in subsection 45 (1) in subsection (2) of Section 70 are inoperative.

2.         Petitioner shall be entitled to be examined under oath by a senior Immigration Officer respecting his claim for Convention refugee status in the same way as a person who has raised this claim during an inquiry pursuant to Subsection 45 (1) of the Act, and subsections (2), (3), (4), (5) and (6) of Section 45 shall thereafter be applied with respect to such examination.

3.         The order of deportation of September 12th, 1984 against Petitioner shall be suspended until final determination of his renewed claim for Convention refugee status is made as above and any appeals resulting therefrom. The ministerial authorities shall be enjoined from carrying out this deportation pending the final determination.

^*I am advised that this case is under appeal.