IMM-940-07
2007 FC 1069
Ikejiani Ebele Okoloubu (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Okoloubu v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Harrington J.—Montréal, October 3; Ottawa, October 17, November 9, 2007.
Citizenship and Immigration — Status in Canada — Permanent Residents — Humanitarian and Compassionate Considerations — Judicial review of pre-removal risk assessment (PRRA) officer’s decision not having jurisdiction to deal with international law, constitutional issues in application for exemption from permanent resident visa requirements pursuant to Immigration and Refugee Protection Act (IRPA), s. 25 — Applicant married to Canadian permanent resident, having Canadian-born child but because of criminal record, disqualified from inclusion as spouse, common-law partner in Canada class — Applicant denied fair hearing when officer failed to consider applicant’s arguments — PRRA officer obliged to consider questions of law, constitutional issues since exercising Minister’s discretion under IRPA, s. 25 — Also failed to appreciate significance of Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration) which emphasized importance of considering children’s interests in H&C application — Ramifications of R. v. Hape, dealing with extra-territorial application of Charter in immigration context — PRRA officer should have asked whether applicant’s removal would violate Canadian law, which should be interpreted consistently with international law — Question certified as to immigration officer’s jurisdiction to consider whether removal would breach International Covenant on Civil and Political Rights — Application allowed.
International Law — Judicial review of pre-removal risk assessment (PRRA) officer’s decision not having jurisdiction to deal with international law, constitutional issues in application for exemption from permanent resident visa requirements pursuant to Immigration and Refugee Protection Act (IRPA), s. 25 — Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) stating international conventions having no direct application within Canadian law unless implemented by Parliament, but values reflected therein serving as aid in interpreting domestic law — Federal Court of Appeal interpreting IRPA, s. 3(3)(f) as not giving priority to international human rights instruments inconsistent with IRPA provisions and noting expanding role of international law in interpretation of domestic law — Ramifications of Supreme Court of Canada’s decision in R. v. Hape, that prohibitive rules of international custom incorporated directly into Canadian domestic law through common law, without need for legislative action to continued applicability of principles regarding international law stated in Baker — Question certified as to immigration officer’s jurisdiction to consider whether removal would breach International Covenant on Civil and Political Rights.
statutes and regulations judicially
considered
American Declaration of the Rights and Duties of Man, approved by the Ninth International Conference of American States, 1948, Bogotá, Colombia.
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].
Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Art. 3.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(f), 25.
Immigration and Refugee Protection Regulations, SOR/2002-227, s. 72(2) (as am. by SOR/2004-167, s. 26).
International Covenant on Civil and Political Rights, December 19, 1966, [1976] Can. T.S. No. 47, Preamble, Arts. 17, 23.
Universal Declaration of Human Rights, GA Res. 217 A (III), UN GAOR, December 10, 1948, Art. 25.
cases judicially considered
applied:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; R. v. Hape, [2007] 2 S.C.R. 292; (2007), 280 D.L.R. (4th) 385; 220 C.C.C. (3d) 161; 47 C.R. (6th) 96; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26.
distinguished:
Covarrubias v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 169; (2006), 148 C.R.R. (2d) 45; 56 Imm. L.R. (3d) 178; 354 N.R. 367; 2006 FCA 365.
considered:
Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; (2002), 212 D.L.R. (4th) 139; 20 Imm. L.R. (3d) 119; 288 N.R. 174; 2002 FCA 125; de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655; (2005), 262 D.L.R. (4th) 13; 42 Admin. L.R. (4th) 234; 137 C.R.R. (2d) 20; 51 Imm. L.R. (3d) 17; 345 N.R. 73; 2005 FCA 436; leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 70 (QL); Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529 (C.A.).
referred to:
Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; (2002), 222 D.L.R. (4th) 265; 24 Imm. L.R. (3d) 34; 297 N.R. 187; 2002 FCA 475; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Mobil Oil Canada Ltd. v. Canada‑Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; (1994), 115 Nfld. & P.E.I.R. 334; 111 D.L.R. (4th) 1; 21 Admin. L.R. (2d) 248; 163 N.R. 27; Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39 (F.C.T.D.).
APPLICATION for judicial review of a pre-removal risk assessment officer’s decision that she did not have jurisdiction to deal with international law and constitutional issues in an application for exemption from permanent resident visa requirements pursuant to section 25 of the Immigration and Refugee Protection Act. Application allowed.
appearances:
Stewart Istvanffy for applicant.
Patricia Nobl for respondent.
solicitors of record:
Stewart Istvanffy, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Harrington J.: The normal rule is that an application for permanent resident status must be made from outside Canada. However, taking into account humanitarian and compassionate considerations, including the best interests of children, section 25 of the Immigration and Refugee Protection Act [S.C. 2001, c. 27] [IRPA] authorizes the Minister to waive that requirement. The Minister rarely makes such decisions personally. Rather, he delegates others to make the decision in his stead. Mr. Okoloubu sought such an exemption. The factors raised included marriage to a Canadian permanent resident, who had health issues, and a young Canadian‑born child. This is a judicial review of a negative decision.
[2]Were it not for a criminal conviction, he would have been entitled to remain in Canada while his application for a permanent resident visa was being considered. However, his conviction disqualified him from being a member of the spouse or common‑law partner in Canada class. Through counsel he raised our 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]], the International Covenant on Civil and Political Rights [December 19, 1966, [1976] Can. T.S. No. 47] [hereinafter Covenant] and the Organization of American States Declaration on the Rights and Duties of Man [approved by the Ninth International Conference of American States, 1948, Bogotá, Colombia]. He argued that protection of the family and the rights of his wife and child had to be properly considered. The decision maker, whose title is that of a pre‑removal risk assessment (PRRA) officer, said she did not have jurisdiction to deal with international law and constitutional issues, and that a request for exemption from permanent resident visa requirements was not the proper venue “for resolving such complex legal issues including questions of constitutional interpretation” and “whether his removal will constitute a breach of international law will not be addressed in this decision.”
[3]The PRRA officer acknowledged that the interests of children must be well identified and defined in accordance with the legislation: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (F.C.A.); and Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (F.C.A.). She correctly stated that the best interests of the child are an important factor and must be given significant weight, but that those interests do not outweigh all other factors. They are not conclusive. She also noted that Baker referred to Article 3 of the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3].
[4]As noted by the Court of Appeal in Legault, at paragraph 12:
It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada… that the Minister must exercise his discretion in favour of said parent.
It is up to the Minister, in this case a PRRA officer, to determine the appropriate weight to be given to the different factors asserted. It is not the role of the courts.
[5]That being said, by refusing to consider some of the arguments advanced, Mr. Okoloubu was not given a fair hearing. It is not that the consideration of those submissions would dictate a particular result, but as stated by the Supreme Court in Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643 [at page 661], denial of a right to a fair hearing renders a decision invalid. “It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.” The decision was discretionary in nature, but was based on the exercise of a wrong principle (Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2). This is not a case where there could only have been one result (Mobil Oil Canada Ltd. v. Canada– Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202).
INTERNATIONAL LAW
[6]Articles 17 and 23 of the International Covenant on Civil and Political Rights, which Canada has ratified but not legislated upon, provide that the family is a natural and fundamental group unit of society and is entitled to protection by the state. A child has [Article 24] “the right to such measures of protection as are required by his status as a minor, on the part of his family, society and State.” The American Declaration of the Rights and Duties of Man, which actually precedes the Covenant, is not in fact a treaty. It is no broader in scope than the Covenant or the Convention on the Rights of a Child. Canada is a member of the OAS [Organization of American States].
[7]Mr. Okoloubu’s submission that “the expulsion of a father living with a Canadian mother constitutes an arbitrary interference with… family life and is not compatible with the notion of a democratic society” is wrong in law. However it must be said that Baker and Hawthorne were single mothers and Legault was divorced from his first wife and separated from his second. The PRRA officer has taken the position that she did not have jurisdiction to deal with international law and that a request for exemption from permanent resident visa requirements was not the proper venue for resolving complex legal issues. Yet, by referring to Baker, she appears to take the position that the Court may take these issues into consideration on judicial review and then refer the matter back to the Minister for reconsideration in accordance with the reasons given.
[8]However, in Baker the Court noted that the decision maker was the Minister or his delegate: “[t]he Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply” (paragraph 59).
[9]In my opinion the PRRA officer failed to appreciate the significance of Baker. Madam Justice L’Heureux‑Dubé, who also spoke for Justices Gonthier, McLachlin, as she then was, Bastarache and Binnie, dealt with international law at paragraphs 69 through 71 of her reasons. She said that an “indicator of the importance of considering the interests of children when making a compassionate and humanitarian decision [was] the ratification by Canada of the Convention on the Rights of the Child” which reflects the Universal Declaration of Human Rights [GA Res. 217 A (III), UN GAOR, December 10, 1948] which recognizes that “childhood [is] entitled to special care and assistance.” Although a convention not implemented by Parliament had no direct application within Canadian law, nevertheless the values reflected there serve as an aid in interpreting domestic law.
[10]As with the Convention on the Rights of the Child, Canada is also signatory to the International Covenant on Civil and Political Rights. Section 25 of IRPA is clearly the proper venue for taking that treaty into consideration.
[11]The current Immigration and Refugee Protection Act was enacted post‑Baker. Paragraph 3(3)(f) provides the Act “is to be construed and applied in a manner that. . . complies with international human rights instru-ments to which Canada is signatory.” This section was considered by the Federal Court of Appeal in de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655, leave to appeal to the Supreme Court refused [[2006] S.C.C.A. No. 70 (QL)]. Speaking for the Court, Mr. Justice Evans held that that section does not give priority to international human rights instruments over inconsistent IRPA provisions. However, at paragraph 62 and following, he described the evolution of the common law and the expanding role given to international law in the interpretation of domestic law.
[12]What then are the ramifications of the recent decision of the Supreme Court in R. v. Hape, [2007] 2 S.C.R. 292, which dealt with the extraterritorial application of the Charter, in the immigration context? Mr. Justice LeBel followed the adoptionist approach to the reception of customary international law, by which [at paragraph 36] “[p]rohibitive rules of international custom [are] incorporated directly into domestic law through the common law, without the need for legislative action.”
[13]He said at paragraph 39:
Despite the Court’s silence in some recent cases, the doctrine of adoption has never been rejected in Canada. Indeed, there is a long line of cases in which the Court has either formally accepted it or at least applied it. In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary. Parliamentary sovereignty dictates that a legislature may violate international law, but that it must do so expressly. Absent an express derogation, the courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law and the development of the common law.
[14]He also referred to the reasons for judgment given by Lord Denning in Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529 (C.A.). Mr. Justice LeBel said at paragraph 36:
Lord Denning considered both the doctrine of adoption and the doctrine of transformation, according to which international law rules must be implemented by Parliament before they can be applied by domestic courts. In his opinion, the doctrine of adoption represents the correct approach in English law. Rules of international law are incorporated automatically, as they evolve, unless they conflict with legislation. He wrote, at p. 554:
It is certain that international law does change. I would use of international law the words which Galileo used of the earth: “But it does move.” International law does change and the courts have applied the changes without the aid of any Act of Parliament . . . .
…Seeing that the rules of international law have changed—and do change—and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows, too, that a decision of this court—as to what was the ruling of international law 50 or 60 years ago—is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change—and apply the change in our English law—without waiting for the House of Lords to do it.
[15]Must Baker be reassessed in the light of Hape? Should family integration be reassessed, not withstanding that removal of one family member is nearly always accompanied by disruption and heartbreak? (Melo v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 39 (F.C.T.D.)).
[16]As Mr. Justice LeBel noted, and as was held in Baker, not only is conformity with international law an interpretative principle of our domestic law, but our Courts have looked to international law to assist in interpreting our Canadian Charter of Rights and Freedoms.
[17]The Minister submits that a PRRA officer does not have jurisdiction to decide complex issues of law. He relies upon Covarrubias v. Canada (Minister of Citizenship and Immigration), [2007] 3 F.C.R. 169 where the Federal Court of Appeal said at paragraph 56:
This Court recognizes that PRRA officers make extremely important decisions, and for a significant number of people a PRRA assessment may be the final assessment of risk that they receive before being deported. However, based on the above considerations, and on the fact that the IRPA explicitly confers jurisdiction on its other decision makers to consider questions of law and constitutional issues, I agree with the applications Judge, and with Russell J. in Singh, that a PRRA officer does not have implied jurisdiction to consider questions of law, in particular, the implied jurisdiction to declare inoperative subsections of the IRPA when their operation would result in the violation of a person’s rights under the Charter.
[18]That case is clearly distinguishable. The officer in this case was not carrying out a pre‑removal risk assessment. She was exercising the Minister’s discretion pursuant to section 25 of IRPA. As per Baker, the Minister had the obligation to consider questions of law and constitutional issues. So did she.
[19]To summarize, the officer mischaracterized the issue. The question which she should have asked herself was whether Mr. Okoloubu’s removal would violate Canadian law, which law, if possible, is to be interpreted in a manner consistent with international law. Following Hape, a further question must be asked. Since the preamble of the International Covenant on Civil and Political Rights, which entered into force in March 1976, speaks of “considering,” “recognizing,” and “realizing” so that the States Parties to the Convention “agree” on certain principles, are those principles prohibitive rules of customary international law which have been incorporated into domestic law, without the benefit of legislation?
[20]As discussed during the hearing, the ramifications of Hape should be thought through and at a higher level. The Minister has until October 27, 2007 to submit a question or questions of general importance which would support an appeal to the Federal Court of Appeal. The applicant shall have seven days to respond. Thereafter, an order shall issue. Nothing said herein shall be taken as an endorsement or rejection of the other parts of the decision. The referral back for redetermination shall be on a full de novo basis and shall include an update of Mr. Okoloubu’s wife’s health and financial issues.
ORDER
UPON THIS COURT’S REASONS issued October 17, 2007;
AND UPON the written submissions of the parties regarding the submission of a serious question for certification;
THIS COURT ORDERS that:
1. The application for judicial review is granted.
2. The matter is referred back to another immigration officer for a de novo redetermination in accordance with the reasons provided.
3. For the purposes of section 74 of the Immigration and Refugee Protection Act, the following serious question of general importance is certified and stated:
Does an immigration officer in charge of assessing an application under section 25 of the Immigration and Refugee Protection Act (for an exemption from the obligation to present an application for an immigrant visa from outside Canada) have jurisdiction to consider whether an applicant’s removal would breach the International Covenant on Civil and Political Rights, more specifically Articles 17, 23 and 24?
Est-ce qu’un agent d’immigration chargé de l’évaluation d’une demande présentée en vertu de l’article 25 de la Loi sur l’immigration et la protection des réfugiés (pour une exemption de l’obligation de présenter une demande de visa d’immigrant de l’extérieur du Canada) a compétence pour décider si le renvoi d’un demandeur contrevient au Pacte international relatif aux droits civils et politiques, plus particulièrement à ses articles 17, 23 et 24?