IMM-1635-97
Mustazar Raza (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Razav. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Muldoon J."Toronto, March 26; Ottawa, December 14, 1998.
Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Judicial review of immigration officer's decision applicant ineligible pursuant to Immigration Act, s. 44 to have refugee status claim referred to CRDD because removal order against him not executed — Respondent submitting constitutionality of s. 44(1) must be raised by way of action, not by application for judicial review under Federal Court Act, s. 18.1 because applicant not seeking declaratory relief, immigration officer not having authority to make constitutional determinations — Court may grant declarations of invalidity under s. 18.1(3)(b) giving Court power to —declare invalid or unlawful— decision of federal board, commission, tribunal — Under s. 18.1(4)(f), F.C.T.D. may grant relief where federal board, commission tribunal acting in any other way contrary to law, Court may consider constitutional arguments even where tribunal whose decision under review cannot make constitutional decisions.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Judicial review of immigration officer's decision applicant ineligible pursuant to Immigration Act, s. 44 to have refugee status claim referred to CRDD because removal order against him not executed — Applicant voluntarily leaving Canada after exclusion order issued, but without confirming departure with immigration authorities — S. 54 making it clear Minister's consent required when person voluntarily executing deportation order — Failure to obtain consent resulting in removal order not being executed — Questions certified: (1) does senior immigration officer have jurisdiction, either at common law or pursuant to Charter, s. 7, Constitution Act, 1982, s. 52(1), to reconsider re-opening hearing which resulted in issuance of removal order for person to claim protection as Convention refugee; (2) if so, is such jurisdiction limited to instances where breach of natural justice in respect of original decision?
Constitutional law — Charter of Rights — Life, liberty and security — Judicial review of immigration officer's decision applicant ineligible to have refugee status claim referred to CRDD — Applicant voluntarily leaving Canada after exclusion order against him issued, but without confirming departure with immigration authorities — On return to Canada, again claiming refugee status alleging persecution in Pakistan — Immigration Act, s. 44 prohibiting person against whom removal order made, but not executed, from seeking determination of Convention refugee claim — Applicant alleging s. 44 contrary to Charter, s. 7 guarantee not to be deprived of life, liberty, security of person except in accordance with principles of fundamental justice — Eligibility screening to make claim to refugee status not infringing Charter, s. 7 — Parliament having right to declare certain persons ineligible to make refugee claim — S. 7 not engaged.
This was an application for judicial review of an immigration officer's decision that the applicant was not eligible pursuant to Immigration Act, section 44 to have his claim to refugee status referred to the Convention Refugee Determination Division of the Immigration and Refugee Board because he was a person against whom a removal order had been made, but not executed. The applicant is a Shia Muslim from Pakistan who first arrived in Canada in 1988. His claim to Convention refugee status was denied and an exclusion order was issued. The applicant voluntarily returned to Pakistan in August 1992, but he did not confirm his departure with the immigration authorities. A removal order, delivered to the applicant's last known address, did not come to the applicant's attention as he had already left the country. In August 1993 the applicant sent a letter to the immigration department from Pakistan, confirming his departure and requesting a refund of the $2,000 bond posted when he was released from custody. In 1996 the applicant returned to Canada, alleged that he had been persecuted in Pakistan and again claimed refugee status. It was the subsequent refusal to refer that claim to the CRDD that was the subject of this application.
Immigration Act, section 44 permits any person who is in Canada and who claims Convention refugee status to seek a determination of the claim by notifying an immigration officer, except a person against whom a removal order has been made, but not executed. Subsection 46.01(1) provides that a Convention refugee claimant is not eligible to have the claim determined by the Refugee Division if a senior immigration officer has made a determination that he is ineligible. Subsection 54(1) provides that where a person against whom a removal order is made leaves Canada, the order shall be deemed not to have been executed if the person is not granted permission to be in any other country.
The applicant argued that subsection 44(1) contravenes Charter, section 7, which guarantees the right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice, and should be rendered of no force and effect. The applicant also argued that the respondent erred in law in holding that the applicant had not executed his removal order by voluntarily leaving Canada. As a preliminary matter, the respondent raised the question as to whether the Court had jurisdiction to hear the constitutional argument raised by the applicant. The respondent asserted that the constitutionality of subsection 44(1) must be raised by way of action, not by way of application for judicial review because the applicant was not seeking declaratory relief and the senior immigration officer did not have the authority to make constitutional determinations. Federal Court Act, paragraph 18.1(3)(b) provides that on an application for judicial review, the Court may "declare invalid or unlawful" a decision of a federal board, commission or other tribunal. Paragraph 18.1(4)(f ) permits the Trial Division to grant relief where the federal board, commission or other tribunal acted in any way contrary to law.
Held, the application should be dismissed.
(1) A declaration of invalidity of a section of an Act, pursuant to Constitution Act, 1982, section 52 may be made pursuant to the power to declare a decision "unlawful" under Federal Court Act , paragraph 18.1(3)(b). Paragraph 18.1(4)(f) allows the Court to consider constitutional arguments even when the tribunal whose decision is being reviewed cannot make constitutional determinations.
(2) The applicant argued that the effect of section 44 is to prevent him from making a claim to refugee status as his removal order has not been executed, and that this results in a denial of an opportunity to present his new claim before the CRDD. Eligibility screening to make a claim to refugee status does not, however, infringe Charter, section 7. Parliament has the right to declare certain persons ineligible to make a refugee claim in Canada. Section 7 was not engaged.
(3) Subsection 54(1) makes it clear that the Minister's consent is required when a person voluntarily "executes" a deportation order and the failure to obtain such consent results in the removal order not being executed. In not seeking the Minister's consent, the applicant did not execute the removal order by voluntarily leaving Canada.
There was no breach of natural or fundamental justice to ground any valid complaint on the applicant's part.
The following questions were certified for consideration by the Court's Appeal Division: (1) does a senior immigration officer have jurisdiction, either at common law or pursuant to Charter, section 7 and Constitution Act, 1982, subsection 52(1), to reconsider reopening a hearing which resulted in the issuance of a removal order in order for a person to claim protection as a Convention refugee? and (2) if a senior immigration officer does have jurisdiction to reopen, is this jurisdiction limited to instances where there has been a breach of natural justice in respect of the original decision?
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.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 57 (as am. idem, s. 19).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1).
Immigration Act, R.S.C. 1970, c. I-2, s. 33(2).
Immigration Act, R.S.C., 1985, c. I-2, s. 44 (as am. by S.C. 1992, c. 49, s. 35; 1995, c. 15, s. 7), 46.01(1)(c) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), (5) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 54(1) (as am. by S.C. 1992, c. 49, s. 44), 114(2) (as am. idem, s. 102).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 56.
cases judicially considered
applied:
Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.); Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220; (1981), 127 D.L.R. (3d) 1; 38 N.R. 541; Woodward Estate (Executors of) v. Minister of Finance, [1973] S.C.R. 120; (1972), 27 D.L.R. (3d) 608; [1972] 5 W.W.R. 581; [1972] C.T.C. 385; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 93 N.R. 183; Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198; (1997), 154 D.L.R. (4th) 344; [1998] 2 C.N.L.R. 212; 138 F.T.R. 275 (T.D.); Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.); Mercier v. Minister of Employment and Immigration (1986), 14 F.T.R. 28; 3 Imm. L.R (2d) 316 (F.C.T.D.).
distinguished:
Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581; (1991), 85 D.L.R. (4th) 166; 135 N.R. 310 (C.A.); Ramkissoon v. Minister of Manpower and Immigration, [1978] 2 F.C. 290; (1977), 82 D.L.R. (3d) 406; 20 N.R. 361 (C.A.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 226 N.R. 201; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1.
considered:
Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 64 (F.C.T.D.); affd sub nom. Nagarajah v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 703 (C.A.) (QL); Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43; (1998), 147 F.T.R. 246 (T.D.); Chan v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 612; (1994), 73 F.T.R. 279; 22 Imm. L.R. (2d) 105 (T.D.); Raman v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 51; 37 Imm. L.R. (2d) 294 (F.C.T.D.).
referred to:
Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; (1989), 58 D.L.R. (4th) 475; 37 Admin. L.R. 59; 96 N.R. 34 (C.A.); Mobarakizadeh v. Canada (1993), 72 F.T.R. 30; 23 Imm. L.R. (2d) 93 (F.C.T.D.); Daher v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 946 (T.D.) (QL).
authors cited
Desjardins, Alice. "Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting", in Special Lectures of the Law Society of Upper Canada . Toronto: Carswell, 1992.
APPLICATION for judicial review of an immigration officer's decision that the applicant was not eligible pursuant to Immigration Act, section 44 to have his claim to refugee status referred to the Convention Refugee Determination Division of the Immigration and Refugee Board because he was a person against whom a removal order had been made, but not executed. Application dismissed.
appearances:
David S. Orman for applicant.
Kevin Lunney for respondent.
solicitors of record:
David Orman, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Muldoon J.: The applicant in his originating notice of motion sought (and later got) leave to commence judicial review of:
The decision of the senior immigration officer [named] (the officer) dated 09 April, 1997, and communicated to the Applicant on 10 April, 1997, wherein the officer determined that the Applicant not to be eligible to have his claim to refugee status referred to the Convention Refugee Determination Division (the "Refugee Division") of the Immigration and Refugee Board (the "Board"). This decision was made pursuant to subsection 44(1) of the Immigration Act , specifically that the Applicant was a person against whom a removal order had been made but not executed.
The applicant asserted the following grounds for his request for review:
I. The decision is invalid on its face, in that it was made pursuant to legislation which is inconsistent with the Canadian Charter of Rights and Freedoms in that, as a refugee claimant, the Applicant is in imminent danger of being removed to a country where his life, liberty and security of the person are threatened without the Applicant first having had the opportunity to prove his claim to be a Convention Refugee in the context of a refugee determination system that complies with the principles of natural justice.
II. The officer erred in law in his interpretation and application of the proper standard of proof for determining whether or not the Applicant's claim to Convention Refugee status should be referred to the Refugee Division of the Board.
III. The officer erred in law in his determination that the Applicant's previous removal order had not been "executed" pursuant to paragraph 44(1) of the Immigration Act in that he acted beyond or refused to exercise his jurisdiction and made erroneous findings of fact in a perverse or capricious manner and without having regard to the material before him.
The applicant gave notice of a constitutional question pursuant to section 57 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 19)], but no attorney general responded.
The respondent's very decision, which the applicant would impugn, can be found copied at tabs 2 and 3, pages 6 and 7 of the applicant's record (AR), addressed to the applicant's solicitor, thus:
DAVID: THE ISSUE OF WHETHER A PERSON SUBJECT TO AN EXCLUSION ORDER WHO LEAVES CANADA ON HIS OWN, WITHOUT INFORMING IMMIGRATION, HAS EXECUTED THE ORDER HAS BEEN DEALT WITH IN THE MERCIER AND BHANWAN DECISIONS OF THE FEDERAL COURT, ACCORDING TO THE COURT, A PERSON UNDER A DEPORTATION ORDER OR AN EXCLUSION ORDER WHO LEAVES CANADA WITHOUT HAVING FIRST OBTAINED THE LEAVE OF THE MINISTER, AS REQUIRED BY A52(1) HAS NOT EXECUTED THE REMOVAL ORDER IN THE CIRCUMSTANCES THEREFORE OF MR. RAZA. IT IS (AND WILL BE) OUR POSITION THAT SUBJECT'S REMOVAL ORDER HAS NOT BEEN EFFECTED AND DETENTION, IF CONTINUED, WILL BE FOR REMOVAL.
TO THAT END THEREFORE, WE ARE RESPECTFULLY REQUESTING THAT YOU SURRENDER MR. RAZA'S EXPIRED PASSPORT AT YOUR EARLIEST CONVENIENCE, IN ORDER TO ASSIST IN OUR EFFORTS AT OBTAINING A VALID TRAVEL DOCUMENT.
The applicant is a Shia Muslim from Pakistan. He arrived in Canada on September 5, 1988, and made a claim then for refugee status. On January 7, 1992, the Convention Refugee Determination Division (CRDD) found the applicant not to be a Convention refugee. At that time, and as a consequence, an exclusion order was issued against the applicant, but he was released from custody upon posting a $2,000 bond.
Background facts
In the summer of that year, the applicant learned that his wife, who continued to reside in Pakistan, was ill. Due to the fact that an exclusion order was issued against him, the applicant returned to Pakistan in August 1992. The applicant did not confirm his departure with the immigration authorities. He states he did not realize that he was required to do so. He believed that as long as he left Canada, he would not be in default of his obligations to the Immigration Department.
A removal order was delivered to the applicant's last known address in May 1993, but it did not come to his attention as he had already left the country. On August 13, 1993, the applicant sent a letter to the Immigration Department from Pakistan, confirming his departure and requesting a refund of the $2,000 cash bond which he had posted. The applicant believed that he had fulfilled the requirements of the exclusion order by remaining in Pakistan for a 12-month period and was therefore eligible to receive the posted bond's face value.
While in Pakistan, the applicant states that he was persecuted. He claims that his office was looted and his nose broken by Sunni fundamentalists. On May 28, 1996, at a large gathering in Mohorum, a riot broke out between Sunni and Shia Muslims and it was alleged that the applicant attempted to murder a Sunni Muslim. The applicant states that he was not at the riot, but in Lahore at the time. He later learned that he was being sought by the police, so he made plans to leave the country.
On August 4, 1996, the applicant arrived in Canada using a false passport, because as he says, he feared he would be apprehended by police if he were to use his real passport. The respondent asserts that he did it to avoid detection by Canadian immigration authorities. He made a claim to refugee status on November 1, 1996, using the mail-in program. On January 3, 1997, the applicant reported to the Immigration Department for an interview, at which time he was arrested.
The applicant was informed, on April 10, 1997, by a senior immigration officer (SIO), that his claim could not be referred to the CRDD on the basis that the applicant is a person against whom a removal order has been made but not executed, under section 44 of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 35; 1995, c. 15, s. 7)].
This section provides that:
44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer.
(2) An immigration officer who is notified pursuant to subsection (1) shall forthwith refer the claim to a senior immigration officer.
(3) Where a person who is the subject of an inquiry claims in accordance with subsection (1) to be a Convention refugee, the adjudicator shall determine whether the person may be permitted to come into or remain in Canada, as the case may be, and shall take the appropriate action under subsection 32(1), (3) or (4) or section 32.1, as the case may be, in respect of the person.
(4) Where a claim to be a Convention refugee by a person who is the subject of an inquiry is referred to a senior immigration officer and the senior immigration officer determines, before the conclusion of the inquiry, that the person is not eligible to have the claim determined by the Refugee Division, the adjudicator shall take the appropriate action under section 32 in respect of the person.
(5) Subject to sections 46.3 and 46.4 where a person makes more than one claim to be a Convention refugee, those claims are, for the purposes of this Act, deemed to be a single claim.
Subsection 44(1) must be read in light of paragraph 46.01(1)(c) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36] which provides that:
46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
. . .
(c) has, since last coming into Canada, been determined
(i) by the Refugee Division not to be a Convention refugee or to have abandoned the claim, or
(ii) by a senior immigration officer not to be eligible to have the claim determined by the Refugee Division.
The applicant argues that subsection 44(1) of the Immigration Act contravenes section 7 of the Charter [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]] and should be rendered of no force and effect under section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
The applicant also argues that the respondent erred in law in holding that the applicant had not executed his removal order by voluntarily leaving Canada.
As a preliminary matter, counsel for the respondent raised the question as to whether this Court has jurisdiction to hear the constitutional argument raised by the applicant. The respondent asserts that the constitutionality of subsection 44(1) must be raised by way of action, not by way of application for judicial review under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act.
In support of this argument, counsel cites Sivaraj v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 64 (F.C.T.D.); affirmed sub nom. Nagarajah v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 703 (C.A.) (QL) for the proposition that the applicant must raise the constitutional arguments by way of action rather than by way of application for judicial review as the SIO did not have the authority to make constitutional determinations. In particular, the respondent quotes the following passage from the first instance decision in which Madam Justice Tremblay-Lamer writes, at paragraphs 5-9, pages 66-67:
In their statements of claim, the applicants seek declaratory relief that the Minister's decision to remove the applicants to Sri Lanka violates the Charter. They argue that the only proper recourse for them is by way of action since under judicial review this Court could not examine the Charter.
I must disagree with that assertion. Unlike the facts in Tétreault-Gadoury, the Minister in this case was not asked to find a provision of the Act unconstitutional. If that were the situation, and if the enabling statute did not permit the federal board to determine the constitutionality of provisions of the Act, then it would be true that this Court would not have the jurisdiction on judicial review to entertain such a request for relief but could only examine it under an action. Those are not the circumstances before me.
However, this does not mean that the Minister may act contrary to the Charter. In Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038 . . . the Supreme Court of Canada has expressly stated that a tribunal's powers are restricted by the Charter, at p. 1078:
"As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter . . . Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so."
The Minister has a constant obligation to act within the Charter, and the court, under the rules of judicial review, must ensure that the federal boards act within constitutional standards. Unconstitutional conduct is presumed to be prohibited and therefore, a federal tribunal engages the Charter as part of its general responsibility. This court has often, under the rules of judicial review, examined the constitutionality under the Charter of decisions made by federal boards. In Mobarakizadeh v. Canada, (1993) 72 F.T.R. 30 (C.T.D.), the Federal Court, by striking a claim which sought declaratory relief under the Charter, confirmed the court's jurisdiction to decide the constitutionality of a federal action by way of judicial review. I agree with the findings in Mobarakizadeh where Nadon J. stated at p. 33:
"Section 18(3) makes it clear that the remedies provided for in subs. 1 and 2 can only be obtained by way of a judicial review application made under s. 18.1. Consequently, any application to obtain a declaratory relief or a writ of mandamus against any federal board, commission or other tribunal must be made pursuant to s. 18.1."
I therefore find that the applicants should not have proceeded by way of action to obtain declaratory relief under the Charter. The proper procedure is by way of applications for judicial review.
From this statement, the respondent argues that the applicant must proceed by way of action for two reasons: the applicant is not seeking declaratory relief and the SIO does not have power under subsection 52(1) of the Constitution Act, 1982 to declare inoperative sections of the Immigration Act. In further support, the respondent relies on the Supreme Court of Canada's decision in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 in which Mr. Justice La Forest wrote at pages 37-38:
The appellant raises a subsidiary issue as to whether the Federal Court of Appeal was entitled to consider the constitutional question, if the Board of Referees did not have jurisdiction over it. As I indicated at the outset of this judgment, the present case came to the Federal Court of Appeal by virtue of s. 28(1) of the Federal Court Act, without the benefit of a ruling by the umpire. Section 28(1)(a) allows for the possibility of a direct application being made to the Court of Appeal to set aside the decision of a federal board on the ground that the board refused to exercise its jurisdiction.
Had the respondent first appealed the decision of the Board of Referees to an umpire, and then to the Federal Court of Appeal, the umpire would have had jurisdiction to determine the constitutional issue. The respondent, however, chose to bypass the umpire and get a ruling from the Federal Court of Appeal directly.
At the time the respondent raised her constitutional challenge before the Board of Referees, the jurisdiction of the Board to entertain such a challenge presented an unsettled legal question. The temptation to raise this unresolved jurisdictional question before the Court of Appeal directly was understandable. However, one cannot overlook the special nature of the Federal Court of Appeal's powers of review under s. 28 of the Federal Court Act. The powers of the Federal Court of Appeal under that section are limited to overseeing and controlling the legality of decisions of administrative bodies and to referring matters back to those bodies for redetermination, with directions when appropriate: see Federal Court Act, R.S.C. 1985, c. F-7, s.52(d); Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233, per Marceau J., at p. 247. I am therefore of the view that, while the jurisdictional question was legitimately before the Court of Appeal, the court had no jurisdiction to make a final determination of the constitutional question.
More recently, Madam Justice Tremblay-Lamer, relying on Tétreault-Gadoury held that this Court, on an application for judicial review, cannot rule on constitutional questions when the federal board whose decision is being reviewed does not have the power to rule on the constitutionality of its enabling statute. In Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43 (T.D.), Madam Justice Tremblay-Lamer held a senior immigration officer lacks the power to decide the constitutional validity of the Immigration Act and thus, she held at paragraph 22, pages 56-57, the only way for an applicant to challenge the constitutionality of certain sections of the Immigration Act is to proceed by way of action, rather than by application. The learned Judge, however, came to an alternative conclusion at paragraphs 23, pages 57 et seq. which this Court respectfully adopts.
With respect, however, it seems that Gwala was, as the learned Judge herself seemed to suspect, incorrectly decided on the issue of whether this Court has jurisdiction to hear constitutional challenges in the circumstances at bar. There are two reasons: the expanded provisions of the Federal Court Act which were not in place when Poirier [Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233 (C.A.)] or Tétreault-Gadoury were decided (but referred to by Nadon J. in Mobarakizadeh, above [Mabarakizadeh v. Canada (1993), 72 F.T.R. 30 (F.C.T.D.)]); and second, that a tribunal which bases its decision on a constitutionally invalid provision commits a jurisdictional error. Thus, by implication, in order to determine whether a decision maker acted within its jurisdiction, the constitutionality of the conferring provision must be assessed.
Changes to the Federal Court Act
Subsection 28(1) of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], as it read when Tétreault-Gadoury was decided, provided only the jurisdiction upon which the Court decided that case. Few, if any, were sorry to see the repeal of that star-crossed provision.
The only powers of the Court under the former section 28 were limited to overseeing and setting aside decisions on the bases described in that section.
On February 1, 1992, section 18.1 of the Federal Court Act came into effect. This new section has the effect of expanding both the scope of judicial review and the remedies available. In particular, subsection 18.1(3)(b) provides that on an application for judicial review, the Court may:
18.1 (3) . . .
(b) declare invalid or unlawful, or quash or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. [Emphasis not in original text.]
Accordingly, declarations of invalidity may be granted by this Court, even in regard to constitutional matters where the acts of a decision maker have the effect of infringing a person's rights as guaranteed under the Charter, (noted is Mobarakizadeh v. Canada (1993), 72 F.T.R. 30 (F.C.T.D.)). There is no reason why a declaration of invalidity of a section of an Act, pursuant to Constitution Act, 1982, section 52, cannot be made when one has regard to the power to declare a decision "unlawful" under Federal Court Act section 18.1 as contravening the Charter.
As to the grounds for judicial review available under subsection 18.1(4), the amendments added a new ground for review, namely:
18.1 (4) . . .
(f) acted in any other way that was contrary to law.
Having regard to above changes, it seems clear that the scope of judicial review has been expanded since the Supreme Court of Canada's decision in Tétreault-Gadoury. In particular, it is clear that subsection 18.1(4) allows this Court to consider constitutional arguments even when the tribunal whose decision is being reviewed cannot make constitutional determinations.
Madam Justice Desjardins of the Court of Appeal in an article entitled "Review of Administrative Action in the Federal Court of Canada: The New Style in Pluralist Setting" in Special Lectures of the Law Society of Upper Canada (Carswell, 1992, page 405) noted that paragraph 18.1(4)(f) was enacted in order to allow the Court to consider constitutional issues on applications for judicial review. At pages 431-432 she noted that:
It has been suggested, moreover, that this final ground of review might permit the court to determine whether a given decision is contrary to the Charter, particularly where the tribunal is without jurisdiction to determine Charter questions. This possibility should be reflected upon in light of the Supreme Court of Canada decision in Tétreault-Gadoury v. Canada (Employment & Immigration Commission). In Tétreault-Gadoury, the Supreme Court held that where an administrative tribunal does not have jurisdiction to entertain a question of law, the Federal Court of Appeal is also without jurisdiction to decide the constitutional matter . . . .
But, Tétreault-Gadoury, of course, was based on s. 28 as formerly known. Whether para. 18.1(4)(f) constitutes remedial legislation which will change the law as established by Tétreault-Gadoury is an open question. In the affirmative, fresh evidence on Charter issues should be tendered.
In the case at bar, as was the case before Madam Justice Tremblay-Lamer, at issue is the jurisdiction of the SIO to apply this section due to alleged constitutional invalidity. The Supreme Court of Canada in Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220 held that a tribunal cannot be immunized from review for jurisdictional errors. Chief Justice Laskin quoted at page 236 from Mr. Justice Martland in Woodward Estate (Executors of) v. Minister of Finance, [1973] S.C.R. 120:
. . . if such a tribunal has acted beyond its jurisdiction in making a decision, it is not a decision at all within the meaning of the statute which defines its powers because Parliament could not have intended to clothe such tribunal with the power to expand its statutory jurisdiction by an erroneous decision as to the scope of its own powers.
Similarly, in Slaight Communications Inc. v. Davidson [[1989] 1 S.C.R. 1038], the Supreme Court of Canada has expressly stated that a tribunal's powers are restricted by the Charter, as recited by Madam Justice Tremblay-Lamer and quoted in paragraph 15 above.
Thus, if a decision of a tribunal is not a "decision" because it is made by a tribunal acting in excess of its jurisdiction, how can it not be subject to review on the basis that the enabling provision contravenes the Charter?
A similar approach was taken by Mr. Justice Rothstein in Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 (T.D.) in which he wrote at paragraph 40, page 221:
Given that a decision of an administrative tribunal in excess of its jurisdiction "is not a decision at all", it seems paradoxical that the same "decision" would be immunized from review where jurisdiction is never raised and the tribunal's jurisdiction and/or the constitutionality of its enabling legislation is assumed . This is tantamount to saying that parties to an administrative proceeding may, by waiver or acquiescence, confer jurisdiction on a tribunal that was not, or could not be, conferred by Parliament, and that this conferral of authority by the parties is unreviewable once the decision is made.
Accordingly, this Court has jurisdiction to hear the constitutional questions raised even although the SIO may not have had jurisdiction to hear these arguments; as found in the alternative reasoning in Gwala, above cited.
In Chan v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 612 (T.D.), Mr. Justice Rothstein noted that the result of holding that this Court lacks jurisdiction on applications for judicial review to hear Charter issues when the tribunal lacks the jurisdiction to hear the issue is impractical as it would be costly and time consuming to institute two separate proceedings: one to challenge the decision via judicial review and the second by way of action challenging the validity of a provision of an Act. At page 623 he noted:
If respondent's counsel's position is correct, applicants seeking relief from decisions of immigration officers would be required to choose between different processes depending upon the grounds to be advanced by them. This could lead to two processes having to be instituted in a case such as the one at bar; an application for judicial review for some grounds and an action for a declaration for others. This multiplicity of procedures would apply only in certain circumstances, i.e. when the tribunal whose decision is being challenged did not have jurisdiction to decide a question of law. I see no useful purpose to such a multiplicity of procedures. On the contrary, the confusion and additional cost inherent in them are clear disadvantages. I do not think Parliament intended to complicate access to the Federal Court by creating an obscure requirement for the commencement of proceedings by way of action in cases such as the one at bar. It has not been demonstrated that the Court would be impeded from performing its functions or that any party would be prejudiced by there being only one process, that is judicial review, for seeking relief in this Court from decisions of immigration officers.
On the basis of differing opinions, Madam Justice Tremblay-Lamer [in Gwala] certified the following questions at page 63:
Whether SIOs have the implied jurisdiction to decide questions of law? If not, whether the Trial Division, when hearing an application for judicial review under section 18.1 of the Federal Court Act, has jurisdiction to decide a constitutional challenge to the validity of a section of the Immigration Act?
As it seems clear that this Court does have jurisdiction to hear the Charter issue raised, the next issue to be determined is whether subsection 44(1) of the Immigration Act contravenes section 7 of the Charter.
Counsel for the applicant argues that the effect of this provision is that the applicant cannot make a claim to refugee status as his removal order has not been executed. This results in denial of opportunity for the applicant to present his new claim before the CRDD.
According to the Federal Court of Appeal in Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.), eligibility screening to make a claim to refugee status does not infringe section 7 of the Charter. In that case, the applicant was found to be ineligible to make a claim pursuant to paragraph 46.01(1)(c) and subsection 46.01(5) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14] of the Act, because the applicant was a refused claimant who had not been outside Canada for more than 90 days after his first claim was refused. The Court of Appeal held that there was no right to make a refugee claim and that Parliament had the right to declare certain persons ineligible to make a refugee claim in Canada. At pages 212-213 Mr. Justice Marceau made the following comments:
There seems no question that the adjudicator's reasoning cannot stand; and yet, one cannot disagree with several of the propositions contained in it. In my view the problem results from his starting-point, the initial proposition which as we have seen the adjudicator accepted without hesitation. The legislation which in certain circumstances does not allow a foreign national to claim refugee status, the adjudicator said, infringes his life and security, as the Supreme Court held in Singh. This statement, on which his entire reasoning depends, seems to me to be simply mistaken.
I absolutely cannot see how it can be said that, by denying refuge to a foreign national, Parliament is infringing that person's life or security. Section 7 of the Charter is not to be interpreted in the abstract; it lays down limits for the action of governmental authority, but does not compel the latter to act; for it to be applicable, there must be a specific act, legislation, not merely a failure to act. It does not of itself impose a duty on the government to provide protection to everyone whose life or liberty may be at risk, still less to provide a refuge for all inhabitants of the globe who may fear for their lives or security, and this is so whatever the cause of the apprehended danger.
As I understand it, the reason the Supreme Court concluded as it did in Singh is that, to give effect to international obligations assumed earlier, Parliament had recognized and granted foreign nationals the right to claim refugee status, but failed at the same time to create along with the exercise of this right"a right connected with the protection of life and security"a procedure consistent with the requirements of fundamental justice. That, I think, is the difference between Singh and the case of an ineligible claimant: Singh was denied a status which the law gave him the right to claim without having any opportunity of showing that he met the conditions for obtaining it, whereas the ineligible claimant is not denied a status he is entitled to claim.
One can easily imagine conditions of eligibility in legislation dealing with aliens seeking refuge which would infringe the precepts of the Charter. We need go no further than the requirements of s.15, for example (whether they correspond to or go beyond the obligations resulting from Article 3 of the Convention). However, I do not see how it can be said that by limiting the right to claim refugee status in an objective and non-discriminatory manner"as it did, Parliament infringed the provisions of s. 7. In my opinion, therefore, the adjudicator and member of the Division were right in concluding that the constitutional argument made by counsel for the applicant was not valid. I would therefore dismiss this application to set aside made against the decision rendered by them.
Similarly, in Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.), Mr. Justice Marceau stated at page 704:
A foreigner has no absolute right to be recognized as a political refugee under either the common law or any international convention to which Canada has adhered. It follows that legislation which purports to define conditions for eligibility to claim refugee status may violate the Charter only if those conditions have the effect of subjecting a group of claimants to discriminatory treatment within the meaning of section 15. To deny dangerous criminals the right, generally conceded to immigrants who flee persecution, to seek refuge in Canada certainly cannot be seen as a form of illegitimate discrimination. Only section 15 of the Charter is engaged since, contrary to the first decision which entailed forced deportation and therefore deprivation of liberty, a declaration of ineligibility does not imply or lead, in itself, to any positive act which may affect life, liberty or security of the person.
Accordingly, section 7 of the Charter, it would appear, is not engaged and the analysis on this section does not need to proceed further. The issue of whether subsection 44(1) of the Immigration Act offends against section 7 of the Charter was never raised by the applicant or his counsel before the decision maker, the senior immigration officer. But, why would it be, if the SIO had no jurisdiction to decide it? The Court's decision in Sivaraj, noted and quoted earlier above, argues for the necessity of bringing an action for a declaration rather than judicial review, in order to achieve the applicant's objectives in these circumstances. That decision was unanimously affirmed, as noted, in one short paragraph by the Appeal Division. At the hearing the applicant's counsel stated (transcript, at page 129), without documentation, that:
. . . the issue of allowing for a constitutional exemption was put before the immigration officer. It was put before him in January. It is true, it was put . . . I admit it was put before him late, but it was put before him, and he did not respond to that.
The applicant's counsel, in reply, made reference to the Appeal Division's decision expressed by Linden J.A. in Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581, but the circumstances there are not readily transposable to the outcome here.
The applicant's second argument is that the SIO erred in holding that the applicant had not executed his removal order by voluntarily leaving Canada. In support of this argument, the applicant cites Ramkissoon v. Minister of Manpower and Immigration, [1978] 2 F.C. 290 in which the Court of Appeal held that a person who had voluntarily left Canada after having a deportation order issued against him could not have recourse to appeal the deportation order to the Immigration Appeal Board as his deportation was "executed". At page 294 Mr. Justice Heald wrote:
With deference, I am unable to agree that the ordinary dictionary meaning of "removal" is so narrow as to preclude a person from "removing" himself from Canada to "the place whence he came to Canada" which is exactly what transpired in the case at bar. "Remove" is defined, inter alia , in The Shorter Oxford English Dictionary as "to go away or depart from a place" and "to change one's place of residence". Both of these definitions are capable of including a positive voluntary act on the part of the person concerned. Thus, in my view, on the facts here present, "removal" from Canada to Trinidad by this applicant was accomplished on March 16, 1975 and the effect of that "removal" was to "execute" the first deportation order. Accordingly, it seems to me that the legal effect of the applicant's voluntarily leaving Canada was that he was thereby deprived of any status entitling him to appeal against the first deportation order under the equitable section 15 jurisdiction of the Board.
In response, the respondent, cites two decisions of the Trial Division in which both justices held that the voluntary removal of an applicant cannot be regarded as "execution" of the deportation order. In particular, the respondent refers to the decision of Mr. Justice Joyal in Mercier v. Minister of Employment and Immigration (1986), 14 F.T.R. 28 (F.C.T.D.) in which he held that an individual who had a deportation order issued against him on the basis of his criminal activities had not "executed" his deportation order by voluntarily leaving Canada for a short period of time. That applicant sought to make a claim to refugee status upon his return to Canada, but due to his outstanding deportation order, could not make his claim. At page 30, Joyal J. wrote:
In my opinion, the matter falls within s. 54 of the Act in the context of the provisions of the other sections of the statute under the heading "Execution of Orders". Section 54(1) deals with voluntary departure. It reads as follows:
"54(1) Unless otherwise directed by the Minister, a person, against whom a removal order is made may be allowed to leave Canada voluntarily and to select the country for which he wishes to depart." (My emphasis.)
On the basis of the subsection Mr. Justice Joyal held at page 30:
I conclude from the foregoing that s. 54 is clear on this point. The voluntary departure of someone who is the subject of a deportation order can only be made under the Act with leave. It was not in dispute that such leave was never given to the applicant . . . .
In the absence of such leave, the applicant cannot argue that he carried out the removal order himself. His visit to Haiti, or to any other country, does not count and the order remains fully in effect.
In my opinion, any other conclusion would be incompatible with the wording of s. 54 of the Act and inconsistent with the meaning and scope of its other provisions. Further, any other conclusion would be likely to bring into disrepute the administration of the Immigration Act and the fair and generous system provided by it.
The learned Judge interpreted "may be allowed to leave" as meaning "may be accorded the Minister's permission".
However, he did not have regard to section 56 of the Act as it read at the time [Immigration Act, 1976, S.C. 1976-77, c. 52] (now subsection 54(1) [as am. by S.C. 1992, c. 49, s. 44]) which provided that:
56. Where a person against whom a removal order is made is removed from or otherwise leaves Canada, the order shall be deemed not to have been executed if the person is not granted lawful permission to be in any other country, and that person may, notwithstanding section 57 [now 55(1)], come into Canada without the consent of the Minister.
This provision makes it clear that the Minister's consent is required when a person voluntarily "executes" a deportation order and the failure to obtain such consent results in the removal order not being executed. The Act as it read when Ramkissoon was determined did not have a similar provision. Rather, the Act [Immigration Act, R.S.C. 1970, c. I-2] provided that:
33. . . .
(2) Unless otherwise directed by the Minister or an immigration officer in charge, a person against whom a deportation order has been made may be requested or allowed to leave Canada voluntarily.
Accordingly, Mr. Justice Heald's determination that a voluntary departure amounts to execution of a removal order must be read in light of the provisions as they stood then. Now, the Act makes it clear that consent is required. As the applicant did not seek the Minister's consent, it cannot be said that the SIO erred in holding that the applicant had not executed his removal order by voluntarily leaving Canada. Accordingly, it appears that this application for judicial review should be dismissed.
It further appears that the Supreme Court's decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at page 1222, because of differing circumstances and law, has no application here.
The applicant, it should be remembered, made a refugee claim in 1988. It was found to have no credible basis, and was rejected. If the applicant had left Canada in accordance with the Act, he would have been able to claim refugee status again upon re-entering Canada in August 1996, because more than 90 days would have elapsed after he previously last came into Canada. At all times while he was previously in Canada, it was open to the applicant to seek to make an application for landing and permanent residence pursuant to subsection 114(2) ([as am. by S.C. 1992, c. 49, s. 44] of the Immigration Act, but, no, he had to do it his way in disregard for the law.
This Court finds no breach of natural or fundamental justice to ground any valid complaint on the applicant's part, from the outset. For this, among the other reasons, the application will be dismissed. Reference is made to Daher v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 946 (T.D.) (QL), MacKay J.
The matter of a certifiable question or questions arose at the end of the hearing. Both sides' counsel agreed that the first two questions certified by Mr. Justice Dubé in Raman v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 51 (F.C.T.D.), at page 56, paragraph 27, would be apt here, because they have not been presented to the Appeal Division of this Court. They run as follows:
"1. Does a senior immigration officer have jurisdiction, either at common law or pursuant to s. 7 of the Charter of Rights and Freedoms and section 52(1) of the Constitution Act, 1982, to consider re-opening a hearing which resulted in the issuance of a removal order in order for a person to claim protection as a Convention refugee?
"2. If a senior immigration officer does have jurisdiction to reopen is this jurisdiction limited to instances where there has been a breach of natural justice in respect of the original decision?
The applicant's counsel propounded a further question about a senior immigration officer having jurisdiction to allow for a constitutional exemption to refer an individual to the Convention Refugee Determination Division despite that individual's being subject to an unexecuted removal order. In view of the Court's discussion and findings articulated in earlier paragraphs hereof, the Court declines to certify such question.
The Court certifies the two questions from Raman recited in paragraph 46, above. They are important questions of general application, which might have a bearing on the outcome of any further appeal herein.
The Court awards no costs in favour of either party.