Judgments

[1995] 2 F.C. 595

A-442-94

The Minister of Employment and Immigration (Appellant)

v.

Hooshang Attar Jafari (Respondent)

Indexed as: Jafari v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Strayer, Robertson JJ.A. and Chevalier D.J.—Ottawa, March 29 and April 11, 1995.

Citizenship and Immigration — Status in Canada — Convention refugees — Appeal from F.C.T.D. decision declaring ultra vires Refugee Claimants Designated Class Regulations, s. 3(2)(f) — Claimant absent from Canada for more than seven days after coming into force of Regulations — Not eligible for backlog program — Immigration Act, ss. 6(2), 114(1)(e) authorizing Regulations — S. 3(2)(f) made for proper administration of Act — Not ultra vires — No denial of fundamental justice.

Administrative law — F.C.T.D. declaring provision in regulation concerning refugee claimants ultra vires, ordering Minister to process permanent residence application — Trial Judge holding provision serving no legitimate purpose considering Canada’s humanitarian tradition — Not for court to determine wisdom of delegated legislation or to assess validity based on court’s policy preferences — Court to decide whether statutory grant of authority permitting particular delegated legislation — Regulation must be related to purpose of Act but court can’t review as to necessity, wisdom, effectiveness — Regulation-making power may not be used for irrelevant purpose but up to attacking party to show illicit purpose.

Judges and Courts — Whether regulation ultra vires — Not for Court to determine wisdom of delegated legislation or to assess validity based on Court’s policy preferences — Question for court: does statutory grant of authority permit this delegated legislation?

This was an appeal from a Trial Division decision declaring ultra vires paragraph 3(2)(f) of the Refugee Claimants Designated Class Regulations and ordering the Minister to process the respondent’s application for permanent residence without reference to that paragraph. The respondent, who arrived in Canada in 1986, stayed in the United States for twelve days in 1990 to be available for an appointment at a U.S. immigration office. Since paragraph 3(2)(f) of the Regulations excludes a person who left Canada after the coming into force of said Regulations, that is December 27, 1989, and remained outside Canada for more than seven days, the respondent was found ineligible for the backlog program which was intended to be an accelerated process for dealing with a large backlog of unresolved refugee claims. The Trial Judge held that paragraph 3(2)(f) serves no legitimate purpose in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted and concluded that it goes beyond the authority granted to the Governor in Council by subsection 6(2) and paragraphs 114(1)(d) and (e) of the Immigration Act. The main issue on appeal was whether that paragraph is ultra vires.

Held, the appeal should be allowed.

It is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court’s policy preferences. The essential question for the court is whether the statutory grant of authority permits this particular delegated legislation. One must therefore look to the statutory basis for the regulation in question. Subsection 6(2) of the Immigration Act, combined with paragraph 114(1)(e) of that Act, authorizes regulations which classify refugee claimants in some way, and which may exempt some of those classes from some of the requirements of some of the regulations. There is nothing mandatory in these provisions. The regulations must of course be seen as in some way related to the purpose of the Act but this does not mean that a court can review them to see if they are necessary, wise or effective in practice. Paragraph 3(2)(f) was made for the proper administration of the Act and there was no basis for holding it invalid just because not everyone who arrived before January 1, 1989 was given the same gratuitous advantage over those who arrived after that date. There is nothing in these Regulations which is inconsistent with Canada’s humanitarian tradition with respect to the displaced and the persecuted. Paragraph 3(2)(f) of the Regulations is not ultra vires. There was no denial of the principles of fundamental justice in requiring the respondent to have his claim determined, not conclusively in a credible basis hearing, but after full hearing by the Immigration and Refugee Board.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.

Immigration Act, R.S.C., 1985, c. I-2, ss. 6(1),(2), 114(1)(d),(e).

Refugee Claimants Designated Class Regulations, SOR/90-40, s. 3(2)(f).

CASES JUDICIALLY CONSIDERED

REFERRED TO:

Haig v. Canada; Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995; (1993), 105 D.L.R. (4th) 577; 156 N.R. 81; Roncarelli v. Duplessis, [1959] S.C.R. 121; (1959), 16 D.L.R. (2d) 689; Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (1994), 17 Admin. L.R. (2d) 121 (C.A.).

APPEAL from a Trial Division decision ([1995] 1 F.C. 284 (1994), 82 F.T.R. 164) declaring ultra vires paragraph 3(2)(f) of the Refugee Claimants Designated Class Regulations and ordering the Minister to process the respondent’s application for permanent residence without reference to that paragraph. Appeal allowed.

COUNSEL:

Donald A. MacIntosh and Neelam Jolly for appellant.

Barbara L. Jackman for respondent.

SOLICITORS:

Deputy Attorney General of Canada for appellant.

Jackman & Associates, Toronto, for respondent.

The following are the reasons for judgment rendered in Engligh by

Strayer J.A.:

Relief Requested

This is an appeal from a decision of the Trial Division of August 22, 1994 [[1995] 1 F.C. 284 in which paragraph 3(2)(f) of the Refugee Claimants Designated Class Regulations[1] was declared ultra vires of the Governor in Council and mandamus was issued ordering the Minister and his officials to process and consider the present respondent’s application for permanent residence without reference to that paragraph. The learned Trial Judge also certified two questions of general importance as follows [at pages 304-305]:

1. Is paragraph 3(2)(f) of the Regulations ultra vires the statutory regulatory powers of the Governor in Council under section 114 of the [Immigration Act], as a regulation governing landing in Canada which excludes a class of persons on fixed criteria, unrelated to the need for protection in Canada or the ability of the person to successfully establish in Canada; and

2. Is paragraph 3(2)(f) of the Regulations contrary to the principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms, in that it establishes a fixed criterion unrelated to the circumstances of the individual applicant, to the intention of the applicant, to the need for protection in Canada and to the ability of a person to successfully establish in Canada.

At the hearing in the Trial Division, the learned Trial Judge in effect answered question 1 in the affirmative and question 2 in the negative. The appellant Minister argues that both questions should be answered in the negative and the respondent argues that they should both be answered in the affirmative.

Facts

The respondent is a citizen of Iran who arrived in Canada on November 16, 1986. He immediately claimed refugee status. His claim had not been dealt with when the Refugee Claimants Designated Class Regulations were brought into effect on December 27, 1989. These so-called “Backlog Regulations” provided what was intended to be an accelerated process for dealing with a large backlog of unresolved refugee claims. To be eligible for the backlog program a claimant was required, inter alia, to have been in Canada on January 1, 1989 and to have signified before that date an intention to make a refugee claim. As part of section 3 of the Regulations which designated the class to which they applied, paragraph 3(2)(f) provided that:

3….

(2) The Refugee Claimants Designated Class shall not include a person who

…

(f) left Canada after the coming into force of these Regulations and remained outside Canada for more than seven days;

In July, 1990 the claimant attempted to cross into the United States surreptitiously. He was apprehended and because of his method of entry it was necessary for him to stay in the United States some twelve days to be available for an appointment at a U.S. immigration office in Buffalo. He then returned to Canada, his absence having been noted.

On October 4, 1991 he was called in to attend a meeting at a Canada Employment and Immigration office in Toronto. He was advised that he was not entitled to be dealt with under the Backlog Regulations as he had absented himself from Canada for more than seven days. His file was transferred to the office dealing with regular refugee claims.

The practical effect of the Backlog Regulations was that those who fell within the designated class as defined in section 3 of the Regulations could, where found to have a credible basis for their claim, apply for landing. Previously such persons would have had to go through a further process of a hearing before the Immigration and Refugee Board and succeed there before applying for landing.

Those who had not been in Canada and/or had not signified an intention to apply for refugee status prior to January 1, 1989 would clearly not be eligible for what was thought to be the accelerated process of the backlog program but would proceed to a hearing before the Immigration and Refugee Board under the new regular claim process.

As the respondent had been found not to be eligible for the backlog program, his file was transferred to the immigration office dealing with regular refugee claims. He was subsequently told that the Minister’s representative conceded that there was a credible basis for his claim but no hearing has ever been held by the Immigration and Refugee Board on his application. It is not clear to the Court why this matter has never been disposed of by the Board, although recent delays may be related to the fact that the respondent has had proceedings going on in the Federal Court since April 8, 1993 for judicial review seeking mandamus to require the Minister to process his application under the Backlog Regulations.

When this matter was argued before the learned Trial Judge the respondent’s claim to mandamus was based on the proposition that paragraph 3(2)(f) of those Regulations is invalid because: (1) it goes beyond the regulation-making powers of the Governor in Council conferred by subsection 6(2) and paragraphs 114(1)(d) and (e) of the Immigration Act;[2] and (2) it is inconsistent with section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] which makes invalid any law which deprives an individual of security of the person except in accordance with the principles of fundamental justice. The learned Trial Judge rejected a further argument based on implied limits to regulation-making in subsection 6(1), and this matter was not argued on appeal.

The relevant statutory provisions are as follows:

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.

…

114. (1) The Governor in Council may make regulations

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(d) designating classes of persons for the purposes of subsection 6(2);

(e) exempting Convention refugees and classes of persons designated pursuant to paragraph (d) from any of the requirements of the regulations and prescribing, in substitution for those regulations, special regulations relating to the admission of Convention refugees and those classes of persons;

With respect to the first issue the learned Trial Judge held paragraph 3(2)(f) of the Regulations to go beyond the authority granted to the Governor in Council. In rejecting the relevance of subsection 6(1) he confined the pertinent limitation on the powers of the Governor in Council to subsection 6(2) stating as follows [at page 295]:

In my opinion, the wording of the Act only supports necessary adherence to the purpose of respecting Canada’s humanitarian tradition toward the displaced and the persecuted in creating exempted classes.

He went on to say [at pages 295-297, 300]:

There is no doubt in my mind that subsection 3(2)(f) serves no purpose in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted; indeed, it is difficult to find any legitimate purpose that the provision serves. None of the alleged purposes of subsection 3(2)(f), as described in the affidavit of Brian Dougall, a member of the team that developed the Regulations, is particularly convincing.

…

The question that must be answered is thus whether this Court has the power to strike subsection 3(2)(f) of the Regulations because it is arbitrary and accomplishes no purpose in accordance with the Act. In light of the legal authority presented by both parties, I am of the opinion that subsection 3(2)(f) can and must be struck.

…

The Governor in Council similarly enjoys a broad power, in the present case, to create regulations exempting “classes” for the purposes of subsection 6(2), subject to the caveat in subsection 6(2), that the composition of such classes must be in accordance with Canada’s humanitarian tradition toward the displaced and the persecuted. To exclude people from the backlog group merely for leaving Canada for more than seven days, regardless of reason for departure is not, in my opinion, consistent with this stated purpose for which exempted classes are to be created.

He thus concluded the regulation in question was not authorized because subsection 6(2) only allows the Governor in Council to designate classes of refugees or classes of persons whose admission

6. …

(2) … would be in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted, …

With respect to the argument based on section 7 of the Charter, the learned Trial Judge concluded as follows [at page 302]:

It is well accepted, in light of the Supreme Court of Canada’s decision in the case of Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that Convention refugee claimants are protected by section 7 of the Charter and that deportation of such claimants infringes their right to security of the person. Where I cannot agree with the applicant is with respect to the premise that merely subjecting him to the regular refugee determination process—which, by all indications, will be in accordance with fundamental justice—constitutes an infringement of his right to security of the person.

Analysis

Is the Regulation Ultra Vires?

I respectfully agree with the learned Trial Judge as to the general principles governing a determination as to whether delegated legislation is within the authority granted by statute. I feel unable, however, to agree with his application of those principles to this situation.

It goes without saying that it is not for a court to determine the wisdom of delegated legislation or to assess its validity on the basis of the court’s policy preferences.[3] The essential question for the court always is: does the statutory grant of authority permit this particular delegated legislation? In looking at the statutory source of authority one must seek all possible indicia as to the purpose and scope of permitted delegated legislation. Any limitations, express or implied, on the exercise of that power must be taken into account. One must then look to the regulation itself to see whether it conforms and where it is argued that the regulation was not made for the purposes authorized by the statute one must try to identify one or more of those purposes for which the regulation was adopted. It is accepted that a broad discretionary power,[4] including a regulation-making power may not be used for a completely irrelevant purpose but it is up to the party attacking the regulation to demonstrate what that illicit purpose might be.

We must therefore look to the statutory basis for the regulation in question. It seems to be common ground that the relevant powers are in paragraphs 114(1)(d) and (e) which are to be exercised for the purposes of subsection 6(2), quoted above. The respondent relies on the limitations found in subsection 6(2) as conditioning regulations such as those in question here. As I read subsection 6(2) it authorizes the Governor in Council to designate classes of persons (other than those already found to be Convention refugees) for purposes of admission. But, put at its highest, it simply requires that those classes be designated to include persons whose admission

6. …

(2) … would be in accordance with Canada’s humanitarian tradition with respect to the displaced and the persecuted, …

This does not mean, contrary to the arguments of respondent’s counsel, that every regulation must facilitate the admission of more refugee claimants. In my view the subsection, combined with paragraph 114(1)(e), authorizes regulations which classify such persons in some way, and which may exempt some of those classes from some of the requirements of some of the regulations. I see nothing mandatory in subsection 6(2) or paragraphs 114(1)(d) and (e).

It is the core of the respondent’s position, apparently adopted by the Trial Judge, that paragraph 3(2)(f) of the Regulations advances no purpose recognized in subsection 6(2) and indeed is contrary to Canada’s “humanitarian tradition.”

With respect, I disagree. Putting aside the humanitarian question for the moment, I take subsection 6(2), and paragraphs 114(1)(d) and (e), to authorize systems of classification of, inter alia refugee claimants, and the provision of preferential treatment for some or all of those so classified. On their face the statutory provisions would appear to authorize the Governor in Council to make no classifications of refugee claimants, or to classify them in any way thought suitable. Thus, for example, the Backlog Regulations might have excluded from the backlog anyone who had not remained constantly in Canada since making his claim. Similarly, the Governor in Council could under these provisions provide exemptions for such persons, if classified, from all or none of the regulations. There is nothing to compel the making of a regulation to grant any particular exemption to any particular person or class of persons. The regulations must of course be seen as in some way related to the purpose of the Act but this does not mean that a court can review them to see if they are necessary, wise, or effective in practice.[5] In the present case there was evidence on behalf of the appellant as to the purpose of the Regulations in question. While I agree with the Trial Judge that some of the reasons advanced were not compelling and may in some measure have been misconceived, I do not think we can say they were completely unrelated to the purposes of the statute. For example the deponent Dougall, former director of the Refugee Backlog Clearance Program, stated that one of the purposes was to clarify in what circumstances a claimant who had been outside Canada since making his claim could continue it. Consistently with this evidence, I understood it to be agreed in argument that adjudicators who might be seized of the case of such a backlog applicant—one who had been out of Canada at some time since his refugee claim was filed — could have to determine at a subsequent hearing whether the applicant had by leaving the country abandoned his refugee claim. Different adjudicators could take different views on this matter. It is conceivable that some could take the view that any absence would be an abandonment of the claim. Paragraph 3(2)(f) of the Regulations would have the advantage of clarifying the situation both for the claimant and for the adjudicator: it would be beyond dispute that such a claimant would have the right to absent himself from Canada for up to seven days without the continuation of his claim being brought into question, but after that period he would not be treated as a backlog claimant. This use of it alone allows a court to recognize that paragraph 3(2)(f) was made for purposes of the administration of the Immigration Act.

Further, it is not possible to divorce the distinction which is made by these Regulations from its overall consequence. That consequence is merely to require such a person to have his claim dealt with under the regular refugee determination process which applies to anyone who arrived in Canada on or after January 1, 1989. If the Governor in Council had passed no Backlog Regulations, the respondent would be in exactly the same position as the appellant says he is in today, namely as a claimant under the regular refugee determination process which involves a fair hearing before the Immigration and Refugee Board which in turn is subject to judicial review. The persons assigned to the backlog program received a special advantage, at the discretion of the Governor in Council, and it was an advantage which was granted subject to certain conditions, one of them being that the claimant not leave Canada for more than seven days until his refugee claim was determined. As long as this distinction can be seen to have some connection with the proper administration of the Act there is no basis for holding it invalid just because not everyone who arrived before January 1, 1989 was given the same gratuitous advantage over those who arrived after that date.

It would be otherwise if it could be shown that whatever modest rationale there might be for the Regulations, its main purpose was to achieve some improper and unauthorized purpose. The respondent has suggested no such improper purpose being served by the Regulations in question.

Assuming then that paragraph 3(2)(f) of the Regulations is prima facie authorized by the statute, one must consider whether it is contrary to some condition imposed on the exercise of the regulation-making power. All that subsection 6(2) requires is that regulations establishing classes of persons should be consistent with Canada’s “humanitarian tradition with respect to the displaced and the persecuted.” I can see nothing in these Regulations which is inconsistent with that “tradition.” That tradition is to offer a fair process to all who come to Canada claiming refugee status, such process being for the purpose of determining whether the claimants are truly Convention refugees as interpreted by Canadian law. That is precisely what the respondent is entitled to, if he and the Board will only proceed to have his case heard by the regular refugee determination process. The fact that he might, but for his absence in the United States, have been able to take advantage of the lower threshold credible basis review allowed to backlog claimants to enable them to obtain landing does not in my view turn the fair hearing, which he is entitled to from the Board under the regular determination process, into an inhumane procedure without regard to the displaced and the persecuted.

I am therefore unable to say that paragraph 3(2)(f) of the Regulations is ultra vires the Governor in Council.

Does the Regulation Violate Section 7 of the Charter?

At the hearing of this appeal we felt it unnecessary to hear from the appellant on this issue, the burden being on the respondent to demonstrate that the learned Trial Judge had wrongly concluded that there was no conflict with section 7.

For the reasons stated by the learned Trial Judge, and for the reasons stated above with respect to question number 1, I conclude that there is no denial of the principles of fundamental justice in requiring the respondent to have his claim determined, not conclusively in a credible basis hearing, but after full hearing by the Immigration and Refugee Board.

Disposition

The appeal will therefore be allowed and the order of the learned Trial Judge set aside. Questions 1 and 2 will be answered in the negative.

Robertson J.A.: I agree.

Chevalier D.J.: I agree.

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