[1993] 1 F.C. 602
A-856-91
Minister of Employment and Immigration (Appellant)
v.
Mehmet and Emine Demirtas (Respondents)
and
Refugee Division of the I.R.B. (Mis en cause)
Indexed as: Demirtas v. Canada (Minister of Employment and Immigration) (C.A.)
Court of Appeal, Marceau, Décary and Létourneau JJ.A.—Montréal, December 3; Ottawa, December 11, 1992.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Respondents found not Convention refugees by M.E.I. in 1987 — Applied to Immigration Appeal Board for redetermination — Case repeatedly adjourned — Act amended in 1988 — New Board, transitional provisions for claims pending before former Board — Trial Judge quashing letter advising case to be heard by new Board — Whether respondents entitled to benefit of Refugee Claimants Designated Class Regulations — Interpretation of s. 41 of amending legislation — Respondents’ claims subject to s. 48 — No legitimate expectation claims processed under backlog system arising from statement by M.E.I. — Merely method of distributing information — Intention of Parliament found in legislation.
Judicial review — Prerogative writs — M.E.I. appealing T.D. decision granting certiorari, mandamus, prohibition as to letter advising redetermination of Convention refugee claim denial to be heard by new Board under 1988 amending legislation — Letter not “decision” reviewable by certiorari — Doctrine of legitimate expectation inapplicable where Minister making statement, couched in generalities, containing only general indication of new policies — Legislation representing intention of Parliament — Doctrine inapplicable where implementation of promise interfering with statutory duty.
This was an appeal from the trial judgment quashing the decision of the Director of the Canada Immigration Centre (Refugee Backlog) that the Immigration and Refugee Board was seized of the respondents’ claims, ordering the Minister to hold a hearing to determine whether there existed a credible basis to their refugee claims and, if so, to process the claims under the Refugee Claimants Designated Class Regulations. The Trial Judge also held that the respondents had a legitimate expectation that their refugee claims would be processed under the backlog system. The respondents had arrived in Canada in 1986. When their Convention refugee claims were rejected, they applied for a redetermination thereof in 1987. A hearing date was set for February, 1988, but was adjourned several times. The Immigration Act was amended in 1988 to create a new Immigration and Refugee Board. Transitional provisions applied to claims awaiting hearing and cases pending before the former Board. The new Board informed the respondents that it was seized of their claims. The respondents sought to have their claims dealt with as part of the backlog, but the Director referred them to the transitional provisions and informed them that the new Board was seized of their claims.
Held, the appeal should be allowed.
The Director’s decision was not reviewable by certiorari. A mere informational letter from an administrative official in which, in reply to a request made to him, he draws the correspondent’s attention to the existence of transitional legislative provisions and to the fact that a new quasi-judicial body was seized of the matter, is not a “decision”, much less a decision which granted or denied rights. Any challenge to the Board’s jurisdiction should have been made before the Board.
The purpose of Immigration Act, section 41 is to identify those refugee claims which may be determined by the Refugee Division to which the scheme provided in sections 42 and 43 applies. Subparagraph 41(b)(iii) deals with the class of persons excluded from the operation of section 41. The respondents met all four conditions in subparagraph 41(b)(iii). Their claims were subject to the scheme established by section 48.
The doctrine of legitimate expectation did not apply. The Minister’s statement concerning measures to examine refugee claims made before January 1, 1989 and the accompanying information document on backlog procedures was merely a method of distributing information. The legislation contains the substance of Parliament’s intention and how it is to be applied. To rely on the doctrine, the respondents had to establish that promises were made to them by an administrative authority. In fact, the Minister’s statement and the accompanying information document, while couched in generalities, excluded the respondents from the backlog process. Moreover, for the doctrine of legitimate expectation to apply, there must be no statutory bar. Sections 41 and 48 clearly preclude the respondents’ claims.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Act to amend the Immigration Act and to amend other Acts in consequence thereof, R.S.C., 1985 (4th Supp.), c. 28, ss. 41, 42, 43, 48.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. I-2.
Immigration Regulations, 1978, SOR/78-172.
Refugee Claimants Designated Class Regulations, SOR/90-40.
CASES JUDICIALLY CONSIDERED
APPLIED:
Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16; (1989), 61 D.L.R. (4th) 313; 26 F.T.R. 122 (note); 8 Imm. L.R. (2d) 20; 95 N.R. 385 (C.A.); Attorney-General of Hong Kong v. Ng Yuen Shiu, [1983] 2 A.C. 629 (P.C.).
APPEAL from trial judgment ([1991] 3 F.C. 489; (1991), 47 F.T.R. 139; 15 Imm. L.R. (2d) 144 (T.D.)) quashing the Director of Immigration Centre’s decision that the Immigration and Refugee Board was seized of the respondents’ claims, ordering the Minister to hold a hearing to determine if the respondents had a credible basis to their refugee claims and to process the claims under the Refugee Claimants Designated Class Regulations. Appeal allowed.
COUNSEL:
Joanne Granger for appellant.
William Sloan for respondents.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
William Sloan, Montréal, for respondents.
The following is the English version of the reasons for judgment rendered by
Létourneau J.A.:
The proceedings
This is an appeal from a decision of a Judge of the Trial Division [[1991] 3 F.C. 489] allowing the applications for certiorari, mandamus and prohibition. In those proceedings, the Judge quashed, in his words, the decision of the Director of the Canada Immigration Centre (Refugee Backlog). He ordered the Minister of Employment and Immigration to hold a hearing to determine if the respondents’ refugee claim had a credible basis and, if so, to process their claim under the Refugee Claimants Designated Class Regulations [SOR/90-40]. Finally, he enjoined the Immigration and Refugee Board from holding a hearing into the respondents’ refugee claim until the order had been complied with by the Minister.
Facts
The respondents arrived in Canada in September 1986 from Turkey and applied for refugee status. The inquiry was opened the following month and was adjourned to January 27, 1987. On that date, the respondents were examined under oath, and on September 15, 1987, the Minister of Employment and Immigration decided that the respondents were not Convention refugees.
On October 1, 1987, the respondents applied to the Immigration Appeal Board for a redetermination of their claims. The hearing of the case was set for February 11, 1988, and adjourned on a number of occasions, sometimes at the request of the respondents, and sometimes on consent of the parties while awaiting a decision of another case pending before this Court.
On June 11, 1990, the respondents were informed by the new Immigration and Refugee Board that their claims were still pending and that they would be placed on the list for the next hearings. It must be noted that in 1988, the Immigration Act, R.S.C., 1985, c. I-2, was amended [R.S.C., 1985 (4th Supp.), c. 28] to replace the former Immigration Appeal Board with a new Board, and to establish transitional provisions for claims awaiting hearing and cases pending before the former Board.
On July 4, 1990, counsel for the respondents wrote to Louis Grenier, the Director of the Backlog C.I.C., who was in charge of the Section responsible for backlog clearance, asking him to transfer the respondents’ files to that Centre so that they could be processed along with all the other delayed cases.
On July 11, 1990, Mr. Grenier drew the attention of counsel for the respondents to the transitional provisions set out in the amending Act, and informed him that under those provisions the new Board was now seized of his clients’ claims. There followed the proceedings before this Court, which were commenced on October 25, 1990 by a notice of motion under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7] and ultimately led to this appeal.
Grounds of appeal
The appellant argued against the decision of the Trial Judge that the Trial Judge misunderstood the nature of the action taken by the Director of the Backlog C.I.C., the legislative provisions which applied to the respondents’ claims under the transitional measures adopted and, finally, the applicability of the doctrine of legitimate expectation to the case. I shall examine each of these arguments in order.
The decision of the Director of the Backlog C.I.C.
The appellant contended that the Trial Judge erred in law by describing the letter of July 11, 1990, from the Director of the C.I.C. to counsel for the respondents as a “decision” reviewable by certiorari, and I believe that he is correct. Even if I were to take a very open-minded approach, I am unable to see how we could describe a mere informational letter from an administrative official in which, in reply to a request made to him, he draws his correspondent’s attention to the existence of transitional legislative provisions and to the fact that a new quasi-judicial body was already seized of the cases which the correspondent wished to have transferred, as a “decision”, and moreover a decision which granted or denied rights. In addition, in the days preceding the exchange of correspondence between the Director and counsel for the respondents, the new Immigration and Refugee Board had already informed the respondents that it was seized of their claims and that it was preparing to set a date for hearing. If counsel for the respondents intended to challenge the Board’s jurisdiction over his clients’ claims, he should have done so by making an objection before the Board and not by making a request to an official to transfer the files to another section.
Legislative provisions which apply to the respondents’ claims
The respondents repeated on appeal the argument which they successfully made at trial. They contended that they were entitled to a hearing before an adjudicator and a member of the Refugee Division to determine whether their claims had a credible basis and, if so, that they were entitled to the benefit of the Refugee Claimants Designated Class Regulations.[1] Under those Regulations, a person who is a member of the refugee claimants designated class may make an application for landing and is also exempt from certain requirements of the Immigration Regulations, 1978 [SOR/78-172]. It is these benefits of this scheme that the respondents wish to avail themselves of. In order to determine what their rights are in this respect, we must first interpret section 41 of the Act to amend the Immigration Act and to amend other Acts in consequence thereof, R.S.C., 1985 (4th Supp.), c. 28.
With respect, I believe that the Trial Judge misunderstood the manner in which section 41, and particularly subparagraph 41(b)(iii), which reads as follows, should be interpreted:
41. Notwithstanding any provision of the said Act, the following persons, being persons who claim to be Convention refugees, are eligible to have their claims determined by the Refugee Division:
(a) every person who, on the commencement day, is the subject of an inquiry that is in adjournment pursuant to subsection 44(1) of the former Act and whose claim has not then been determined by the Minister under subsection 44(4) of the former Act;
(b) every person who, on the commencement day, is the subject of an inquiry that is in adjournment pursuant to subsection 44(1) of the former Act and who has then been determined by the Minister under subsection 44(4) of the former Act not to be a Convention refugee, other than a person
(i) who has not applied under subsection 68(1) of the former Act for a redetermination of the claim within the time limited therefor, where that time has expired before the commencement day,
(ii) whose application under subsection 68(1) of the former Act for a redetermination of the claim has been dismissed for want of perfection before the commencement day,
(iii) whose application under sub-section 68(1) of the former Act for a redetermination of the claim is to be dealt with by the former Board under section 48, or
(iv) who, following an oral hearing before the former Board, was before the commencement day found not to be a Convention refugee on an application under subsection 68(1) of the former Act; and
(c) every person who, on the commencement day, is or, before the commencement day, was the subject of an inquiry that was resumed pursuant to subsection 45(1) of the former Act, other than a person described in subparagraph (b)(i), (ii) or (iv).
It must be noted that the drafting of the French version, which is mysterious, not to say surprising in terms of the principles of legislative drafting, makes it even more difficult to interpret.
The purpose of section 41 is to identify those refugee claims which, notwithstanding the new Act, may be determined by the Refugee Division, to which the scheme provided in sections 42 and 43 applies, and those claims which may not. The divergent interpretations proposed by the appellant and by the respondents involve subparagraph (b)(iii) of section 41. This subparagraph deals with a class of persons who are excluded from the operation of section 41, and whose claims may therefore not be heard under that section.
In order for a claimant to fall within the terms of subparagraph 41(b)(iii), he or she must meet the following conditions on the commencement date referred to in the provision, that is, January 1, 1989:
1. The claimant has been determined not to be a refugee by the Minister
2. the claimant has made an application for redetermination of his or her refugee claim under subsection 68(1) of the former Immigration Act
3. the inquiry pursuant to the application for redetermination is in adjournment under subsection 44(1) of the former Immigration Act;
4. the application for redetermination is still pending before the former Board.
The respondents meet each of the conditions for exclusion under subparagraph 41(b)(iii) and accordingly they are not eligible to have their refugee claims determined under section 41. Their claims are, rather, subject to the provisions of the scheme established by section 48 of the Act to amend the Immigration Act, which provides that applications which are before the former Board and not disposed of by that Board on December 31, 1989 shall be reheard by the Refugee Division in accordance with the new Act.
Accordingly, the respondents are not entitled to the hearing provided for in sections 42 and 43 before an adjudicator and a member of the Refugee Division to determine whether their claims have a credible basis.
Applicability of the doctrine of legitimate expectation
The Trial Judge also concluded that the respondents in this case had a legitimate expectation that their refugee claims would be processed under the backlog system. The respondents were among the approximately 85,000 claimants whose claims had not yet been finally determined when the Immigration Act was amended. They based their arguments in respect of this legitimate expectation on a statement by the Minister of Employment and Immigration dated December 28, 1988, in which the Minister announced that measures were being taken to examine refugee claims made before January 1, 1989.
Attached to this statement by the Minister was an information document on backlog procedures, with a brief description of the process.[2] As might be expected, this press release and the six attached pages do not claim to determine the individual outcome of the approximately 85,000 cases awaiting decision. At most, they contain only a general indication of the new policies in this respect, and the information document concludes that the method used to clear the claims backlog is consistent with the principles of the new legislative measures adopted. It is clear that the Minister’s statement is merely a method of distributing information and that we must look to the legislation, which represents the definitive intention of Parliament in the matter, if we wish to ascertain its exact substance and the manner in which it is to be applied.
In order for the respondents to be able to rely on the doctrine of legitimate expectation, they must first be able to establish that promises were made to them by an administrative authority.[3] If we read the Minister’s statement on which the respondents rely, together with the information document which accompanied it, we find, without even referring to the legislative provisions, that these two documents, which are couched in generalities, exclude the respondents from the backlog process of which they are now claiming the benefit.
In fact, the information document, entitled “Backlog Clearance”, identifies four groups of claimants. The respondents are wrong in claiming to belong to group 1 or 2. Group 1 covers persons who have been in Canada since May 1986, while the respondents did not arrive in the country until September 1986. Group 2 refers to persons who hold Minister’s permits, which the respondents do not have.
The respondents may well have acquired a hope for a happy outcome to their situation when the measures taken by the government to solve the refugee backlog were announced. However, hope for a happy outcome must not be confused with legitimate expectation of a specific treatment. I find it impossible to see in the Minister’s statement of December 28, 1988 any promise made to the respondents, let alone a promise that, as they now claim, they would have a hearing to determine whether their claims had a credible basis.
In my humble opinion, it was neither legitimate nor reasonable for the respondents to infer from the government’s intention to deal with refugee cases awaiting hearing on January 1, 1989 (an intention expressed in the Minister’s statement of December 28, 1988) a promise that their pending case would be dealt with in accordance with a particular and definite aspect of a process which is multifacetted.
That in itself would be sufficient to dispose of the respondents’ arguments, but there is more. In order for the doctrine of legitimate expectation to apply, there must also be no statutory bar. In Attorney-General of Hong Kong v. Ng Yuen Shiu[4] the Privy Council, although it recognized the doctrine of legitimate expectation, nonetheless held that the statutory rule must prevail in the event of conflict, as follows:
The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.[5] [My emphasis.]
In the case at bar, the argument made by the respondents based on the doctrine of legitimate expectation runs head-on into the provisions of sections 41 and 48 of the Act to amend the Immigration Act and to amend other Acts in consequence thereof. The consequence of accepting that argument would be to make a claim eligible to be determined under section 41 that is not so eligible, and to give the first-level tribunal, that is, an adjudicator and a member of the Refugee Division, jurisdiction to hold a hearing when in their case Parliament has, by subsection 48(3), given this jurisdiction to the second-level tribunal, that is, the Refugee Division, in accordance with the new Act.
In these circumstances, even if we admit that expectations were created and that it was legitimate for the respondents to rely on them, the doctrine of legitimate expectation cannot apply in view of the contrary provisions of the Act and the fact that those provisions must prevail.
Disposition
For the foregoing reasons, I would allow the appeal and I would quash the writs of certiorari, mandamus and prohibition. I would order that the respondents’ case be referred back to the Refugee Division for a hearing on the respondents’ claim to refugee status to be held as soon as possible.
Marceau J.A.: I agree.
Décary J.A.: I concur.