Digests

Murugesu v. Canada (Minister of Citizenship and Immigration)

IMM-3368-99

Reed J.

15/9/00

10 pp.

Judicial review of senior immigration officer's decision pursuant to Immigration Act, s. 46.4--S. 46.4 providing when satisfied decision person eligible to claim refugee status based on fraud or misrepresentation of material fact, senior immigration officer shall find person ineligible and so notify Refugee Division--On notification refugee status null, void--Refugee Division granting applicant refugee status in December 1997--In April 1999 senior immigration officer learning applicant resident in France, in possession of French document conferring refugee status on her when applied for refugee status in Canada--Not disclosing status in France in application here, but alleging mistreatment in Sri Lanka during time in question--S. 46.01(1)(a) providing person not eligible to make refugee claim in Canada if recognized as Convention refugee by another country to which can be returned--Call-in notice sent to applicant requesting attendance at interview May 7, 1999--Although no disclosure in notice of concerns about applicant's ineligibility to have had claim referred to Refugee Division for determination, counsel informed of those concerns by phone--Immigration officer refusing to reschedule interview to accommodate counsel--Another lawyer from firm accompanied applicant to interview--At interview applicant questioned about whereabouts during relevant time, shown documents giving rise to concerns, told to obtain properly verified documentation from Sri Lanka to support claim--After reviewing file on May 21, counsel informing immigration officer advised applicant to obtain documentation from Sri Lanka confirming residence there--On June 10, counsel informing immigration officer did not know when documentation expected--On June 16 immigration officer made decision--On July 30 Board sent applicant notice of cancellation of refugee status--Application dismissed--(1) Procedure not unfair--(i) Adequate, full disclosure--Applicant informed, through disclosure to counsel of immigration officer's concerns--Knew as of May 7 immigration officer relying on visa application filed in France, details of documentation relating thereto--Also knew officer believed one of her sons born in France and Sri Lankan birth certificate fraudulent--Applicant given opportunity to respond, produce documentation in response--(ii) Applicant not denied counsel as accompanied by counsel--No right to counsel for purposes of May 7 interview, but even if right to counsel, no obligation on immigration officer to schedule interview to fit counsel's schedule--(iii) Applicant questioned about documentation now part of her file--Given ample opportunity to respond--Questions straightforward, not requiring reflection to answer--(iv) Assertion disclosure incomplete because counsel not seeing file until May 21 not well-founded--Assumes May 7 interview hearing of quasi-judicial nature upon which decision solely based--Interview more accurately characterized as information-exchange session, after which applicant given opportunity to respond to allegations with respect to status at time found eligible to have claim determined--Whole procedure administrative, having several component parts--Not useful to focus on one component, treat it as quasi-judicial hearing--(v) Applicant given adequate opportunity to respond--Immigration officer not required to wait indefinitely to make decision because assertions documents may be coming, especially when officer having convincing documentary evidence applicant perpetrated fraud, misrepresented facts when applied for refugee status--(2) Applicant arguing s. 46.4 procedure breach of Charter, s. 7 because allowing immigration officer to revoke Refugee Division decision--Logic of statutory scheme that decisions made by panel of Refugee Division revokable by it, decision made by senior immigration officers revokable by them--Decisions of latter type less complex, more amenable to decision by administrative process than former--Issue before senior immigration officer narrow, precise--Easily determined without formal quasi-judicial procedure appropriate for determination of more complex issues--Case law of this Court indicating s. 46.4 decision not engaging Charter, s. 7--Security of person not at issue as result of s. 46.4 decision because risk assessment will follow decision before person deported--If at risk will not be returned to country from which came--Immigration Act, R.S.C., 1985, c. I-2, ss. 46.01 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; as am. by S.C. 1992, c. 49, s. 36), 46.4 (as enacted by S.C. 1995, c. 15, s. 11)--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.