90-T-612
Jose Ismael Abraham (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: ABRAHAM V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, MacKay J.—Toronto, September
11; Ottawa, September 20, 1990.
Federal Court jurisdiction — Trial Division — Inquiry
finding no credible basis for Convention refugee claim —
Applicant's agent not licensed to practice law in Canada —
Motion for leave to commence proceeding under Federal Court
Act, s. 18 for declaration legislated definitions of "counsel"
(including agent) void as unconstitutional — Leave already
granted by Court of Appeal to commence proceedings to set
aside inquiry's decision — Trial Division without jurisdiction
under s. 28(3) to entertain proceeding seeking declaratory
relief in respect of same decision subject to review in Court of
Appeal proceedings — If constitutional arguments advanced in
Court of Appeal, same effect as if relief declaratory —
Application dismissed.
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.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 28.
Immigration Act, R.S.C., 1985, c. I-2, ss. 44 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 14), 46.1 (as
enacted idem), 82.1 (as enacted idem, s. 19).
CASES JUDICIALLY CONSIDERED
APPLIED:
Penner v. Representation Commissioner for Canada,
[1977] 1 F.C. 147 (T.D.).
REFERRED To:
Fisher v. The Queen, [1978] 1 F.C. 300 (T.D.).
COUNSEL:
Rocco Galati for applicant.
John Vaissi Nagy for respondent.
SOLICITORS:
Rocco Galati, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MACKAY J.: In this motion the applicant seeks
leave, pursuant to section 82.1 [added by R.S.C.
1985 (4th Supp.), c. 28, s. 19] of the Immigration
Act, R.S.C., 1985, c. I-2 as amended (the Act) to
commence a proceeding under section 18 of the
Federal Court Act, R.S.C., 1985, c. F-7 for an
order for declaratory relief.
The application arises following proceedings of
an inquiry held pursuant to sections 44 [as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 14] to 46.01 [as
enacted idem] of the Act, a "credible basis hear
ing" to consider the applicant's claim to be permit
ted to remain in Canada as a Convention refugee.
The inquiry commenced November 21, 1989; it
continued on four other days concluding on Febru-
ary 5, 1990 when the decision of the inquiry
tribunal was rendered, finding no credible basis for
the applicant's claim to refugee status.
In the course of the inquiry proceedings, which
were held in Toronto, the applicant was represent
ed when evidence was presented relating to his
claim to refugee status, but not at the last session
which was limited to the decision of the inquiry, by
an agent. The agent was a person, not qualified to
practice law in Ontario, or in any other part of
Canada, who claimed a degree in law from Argen-
tina, who advertised in the local Spanish press in
Toronto and described herself at the opening ses
sion of the inquiry as a lawyer with a foreign
degree. At the beginning of the opening session the
inquiry asked the applicant whether he had been
informed of his "right to be represented by a
barrister, solicitor or other counsel" at this hear
ing. He responded affirmatively, was asked if he
had obtained counsel and he introduced the
person, who thereafter represented him, as his
counsel. The adjudicator asked that person if she
was licensed to practice in Ontario as a barrister
and solicitor, to which she responded "no", that
her degree was from Argentina. She declined to
accept the appellation "immigration consultant"
suggested by the adjudicator and described herself
as a "lawyer with a foreign degree".
After a few other preliminary procedural mat
ters were dealt with, the inquiry commenced with
the person then introduced by the applicant as his
counsel representing him. Counsel did not call to
testify any of the persons whose affidavits were
subsequently filed in this Court in support of the
applicant's claim for leave and his claim to refugee
status. The decision of the inquiry at the end of the
hearing included the following statements:
Mr. Abraham, we are of the opinion that your testimony is
credible ...
... we have given full weight to all of your testimony (Tran-
script of Inquiry, p. 74)
Nevertheless, the inquiry concluded that the appli
cant's fear of returning to his homeland was not
rationally based, apparently because despite his
testimony of persecution by police and other
authorities he had also testified of the help pro
vided by others on more than one occasion of
serious predicament. The inquiry found no credible
basis for his claim to refugee status.
Following that decision the applicant retained a
barrister qualified to practice law in Ontario as his
counsel and applications were then filed on behalf
of the applicant for leave (a) to commence pro
ceedings pursuant to section 28 of the Federal
Court Act in the Federal Court of Appeal to
review and set aside the decision of the inquiry,
and (b) this application to commence proceedings
in the Trial Division for a declaration. The
applications were made to the two Divisions of the
Court, both dated February 18, 1990 and were
filed on or about February 20. On April 4 the
Court of Appeal granted leave to commence an
application under section 28, a proceeding which
was commenced by application filed April 17,
1990 and which has not been completed.
This motion, heard in Toronto on September 11,
1990, seeks leave to apply for declaratory relief on
grounds that the applicant's claim was negligently
brought forward by an incompetent and mislead
ing "agent" as permitted under the Act; that as a
result the applicant was denied a full and fair
hearing, his rights under 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]] were denied, and the denial
of a credible basis for his claim to Convention
refugee status resulted in good part because of the
incompetent representation of the "agent"; and
finally, that permitting other than barristers and
solicitors to give legal advice, conduct quasi-judi
cial proceedings which affect the life of the
individual represented or otherwise to have a de
facto licence to practice immigration law under
the Act is ultra vires the legislative competence of
the Parliament of Canada.
The applicant seeks declaratory relief in the
nature of:
I. a Declaration that section 69 of the Immigration Act, as
amended, and section 2 of the Convention Refugee Determina
tion Division Rules, SOR/88-1026 *, as amended, both of which
define "counsel" of the claimant as meaning,
.. counsel or an agent ..."
be declared of no force or effect insofar as "or an agent" is
concerned as it is inconsistent with sections 91 and 92 of the
Constitution Act, 1867, as well as sections 7 and 52 of the
Constitution Act, 1982; and
2. a further Declaration that "counsel" as set out in the
Immigration Act shall mean a barrister or solicitor admitted to
the Bar of a Province in Canada; or
* Editor's Note: SOR/89-103.
3. in the alternative to 1. and 2. above, a Declaration that
"agent" under the Convention Refugee Determination Division
Rules shall be interpreted mean "agent" of a "counsel" acting
for a claimant and not "agent" of the claimant himself; and
4. such further or alternative declaratory relief as counsel may
advise and this Honourable Court permit.
In a subsequent notice of motion dated Septem-
ber 4 and filed the following day the applicant sets
out in somewhat different form claims to essential
ly the same relief as was claimed in the original
notice of motion, and adds additional relief now
sought if leave to commence proceedings in this
Division of the Court is granted. The additional
relief sought includes an order prohibiting the
Immigration and Refugee Board from allowing
"not-Barristers and Solicitors" to appear on behalf
of claimants to Convention refugee status, a decla
ration that the applicant's right to counsel under
the Charter was breached in this case, and if the
alternative relief in item 3 outlined in the original
notice of motion be granted, then there also be an
order in the nature of mandamus to order the
Immigration and Refugee Board to advise refugee
claimants, prior to commencing a hearing, as to
the difference between "agent" and "barrister and
solicitor", and the availability or access to legal
aid.
In response to the applicant's motion the
respondent first raises a preliminary question of
jurisdiction under subsection 28(3) of the Federal
Court Act which provides:
28....
(3) Where the Court of Appeal has jurisdiction under this
section to hear and determine an application to review and set
aside a decision or order, the Trial Division has no jurisdiction
to entertain any proceeding in respect of that decision or order.
The respondent relies upon Penner v. Represen
tation Commissioner for Canada, [1977] 1 F.C.
147 (T.D.) where Thurlow A.C.J., as he then was,
held the Trial Division had no jurisdiction to enter
tain a motion for an interlocutory injunction to
restrain the Representation Commissioner from
dealing with a draft representation order under the
Electoral Boundaries Readjustment Act [R.S.C.
1970, c. E-2] until an application under section 28
to the Court of Appeal for review and setting aside
a decision or order of the Electoral Boundaries
Commission of Ontario was heard and determined.
The learned Associate Chief Justice concluded
that the Trial Division lacked jurisdiction where
relief is sought in aid or as an adjunct of a
proceeding in the Court of Appeal under section
28, and further that subsection 28(3) applies
where the only basis put forward for relief in the
Trial Division is the alleged invalidity of the order
which is the subject of the section 28 application.
In reply the applicant points to the relief sought
in this application, declaratory relief, which is not
available through section 28 proceedings in the
Court of Appeal. Counsel for the applicant also
urges that the issue raised by the notice of motion
is an important one, not yet dealt with in any
court, and one which has great significance for all
claimants for Convention refugee status. In short,
the applicant submits that there is a serious issue
to be tried in proceedings for declaratory relief
here sought.
In my view, the decision of Thurlow A.C.J. in
Penner, supra, while dealing with an application
for a different form of relief, emphasizes the basis
for denying jurisdiction in the Trial Division under
subsection 28(3) where the Court of Appeal is
seized of the same matter. That basis is that the
proceeding in this Division is in substance and in
fact a proceeding in respect of the decision subject
to review in the Court of Appeal, or where the
ground for relief sought in this Division is the
validity of the order subject to review in the Court
of Appeal under section 28. (See also: Fisher v.
The Queen, [1978] 1 F.C. 300 (T.D.), at pages
305-306, per Walsh J.)
That is the case here for leave has now been
granted for application under section 28 to pro-
ceed, seeking review and setting aside of the deci
sion which also gives rise to this motion for
declaratory relief. While that form of relief will
not be obtained through the application now pro
ceeding in the Court of Appeal, the effect of any
decision relating to constitutional arguments, if
they are advanced in the Court of Appeal, will be
essentially the same for the applicant, and by
implication for all others, as if the relief sought
were declaratory. I note that in the notice of
motion for leave to commence proceedings in the
Court of Appeal, dated February 18, the grounds
for this application for leave to seek declaratory
relief are alluded to, though in different terms.
Whether constitutional arguments concerning the
validity of the inquiry's decision are raised in the
proceedings in the Court of Appeal will be for the
applicant and his counsel to determine. Even if
they are not there raised, since the validity of the
decision of the inquiry is under review in the Court
of Appeal, that same issue cannot be pursued in
this Division of the Court even though it is
declaratory relief that is here sought.
In view of subsection 28(3) of the Federal Court
Act, leave having been granted by the Court of
Appeal for the applicant herein to commence pro
ceedings under section 28, the Trial Division has
no jurisdiction to entertain a proceeding seeking
declaratory relief in respect of the same decision
subject to review in the proceedings of the Court of
Appeal.
Accordingly, this application for leave to com
mence proceedings pursuant to section 18 is dis
missed. As costs were not sought it seems appro
priate in this case that costs not be awarded.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.