Judgments

[1995] 3 F.C. 252

IMM-1236-94

John Martin Kaberuka (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Kaberuka v. Canada (Minister of Employment and Immigration) (C.A.)

Trial Division, Heald D.J.—Toronto, May 24; Ottawa, July 20, 1995.

Citizenship and Immigration — Exclusion and removal — Whether Immigration Act, ss. 46.01(1)(a), 53(1) (providing no right to oral hearing or reasons in case of determination no threat to person’s life in country to which ordered removed) subject to rules of natural justice or Charter, ss. 7, 12, 15 — If so, whether in violation thereof.

Constitutional law — Charter of rights — Immigration Act, ss. 46.01(1)(a), 53(1) (providing no right to oral hearing or reasons in case of determination no threat to person’s life in country to which ordered removed) not in violation of Charter, ss. 7, 12, 15.

The applicant, a citizen of Rwanda, had been accepted as a Convention refugee by Kenya in the early 1980’s and lived there as a permanent resident until 1992. After a four-month stay in the United States, he attempted to enter Canada in March 1993. A report was issued under paragraph 20(1)(a) of the Immigration Act that it would be contrary to the Act and regulations to grant admission to the applicant on the basis that he was a person described in paragraph 19(2)(d) of the Act. At the inquiry before a senior immigration officer (SIO) to determine whether the allegations in the report were correct, the applicant claimed Convention refugee status, but the SIO declared the applicant ineligible to make that claim as he had already been recognized as such by Kenya. An exclusion order followed. The SIO later determined that the applicant’s removal from Canada was not prohibited by subsection 53(1) of the Immigration Act on the basis that the applicant would not face a threat to his life or freedom if removed from Canada. The applicant was deported to the United States.

This was an application for judicial review of that decision. The applicant argued that paragraph 46.01(1)(a) and subsection 53(1) of the Immigration Act must be read together and were meant to cover the possibility of a person fearing persecution in a country of asylum. He argued that the legislative scheme for determining the validity of the threat to life and freedom must be in accordance with section 7 of the Charter or the requirements of natural justice. The applicant also argued that the legislative scheme violated sections 12 and 15 of the Charter.

The issues were (1) whether paragraph 46.01(1)(a) and subsection 53(1) of the Immigration Act were subject to scrutiny, individually or in combination, under sections 7, 12 or 15 of the Charter; if so, (2) did paragraph 46.01(1)(a) and subsection 53(1), individually or in combination, infringe sections 7, 12 and 15 of the Charter?; if so (3) was the decision of the SIO made in accordance with sections 7, 12 and 15 of the Charter?; and (4) was the decision of the SIO made in accordance with the duty of fairness?

Held, the application should be dismissed.

(1) It was well established that the eligibility requirements, including those set out in section 46.01, did not in themselves attract section 7 or 12 of the Charter. However, paragraph 46.01(1)(a) and subsection 53(1) should be considered together. Since the ineligibility determination was automatic and mandatory for all claimants having Convention refugee status elsewhere, with the only bar to the execution of a removal order being a determination pursuant to subsection 53(1), section 7 of the Charter was engaged. Section 12 of the Charter was not engaged as the ineligibility provision and the review of the applicant’s removal, individually or in combination, did not involve the question of cruel or unusual treatment or punishment. It is only at the removal stage that this issue arises. In Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696(C.A.), there was a clear indication that the Federal Court of Appeal was of the opinion that ineligibility requirements in the Act were subject to scrutiny under section 15 of the Charter.

(2) (a) section 7 of the Charter

Substantive aspects

The purpose of subsection 46.01(1) of the Act was to prevent “asylum shopping”, that is preventing unnecessary and/or multiple claims by those seeking the most favourable conditions of asylum. The prohibition of removal in subsection 53(1) was automatic. Therefore, the automatic operation of subsection 53(1) for those ineligible under paragraph 46.01(1)(a) was a legitimate compromise between the interest of the state in preventing asylum shopping and ensuring that possible consequences of the eligibility criteria—removal from Canada—were assessed within a mandatory evaluation of the potential harm to a paragraph 46.01(1)(a) claimant at the hands of his country of asylum.

Procedural aspects

There was no formal procedure for the implementation of subsection 53(1). However, the requirement therein is simply that the applicant must show that there “would” be a threat. Former subsection 46.02 of the Immigration Act permitted a determination of a Convention refugee claim where the claimant, who had already been recognized as such by another country, claimed persecution by that country. The repeal of the substance of that provision indicated that Parliament had chosen to exclude persons recognized as Convention refugees by another country from claiming a well-founded fear of persecution by their country of asylum. Fundamental justice did not require statutory procedures pursuant to subsection 53(1) for those already recognized as Convention refugees in another jurisdiction. The evaluation of the circumstances, specified under subsection 53(1), in which those found to be ineligible under paragraph 46.01(1)(a) have a right not to be removed should be left to the discretion of immigration officials. It was not insignificant that the exercise of this discretionary power remained subject to judicial review by this Court under section 18.1 of the Federal Court Act. Therefore, the statutory scheme was consistent with Charter section 7.

(b) section 12 of the Charter

The issue of a possible infringement of Charter section 12 need not be addressed as any issues under section 12 arise only where the removal proceedings are directly under attack. The applicant had already been removed.

(c) section 15 of the Charter

It was argued that individuals found to be Convention refugees in Canada had the right to appeal a removal order under paragraph 70(2)(a) of the Immigration Act whereas no such right was afforded those found to be Convention refugees elsewhere. However, the applicant did not make any argument as to which, if any, of the expressly mentioned or analogous grounds listed in section 15 of the Charter might apply.

(3) The SIO had not exercised his discretion in a manner consistent with the requirements of fundamental justice with respect to the applicant’s fear of harm in Kenya, his country of asylum. However, there was evidence that the applicant was not removed to Kenya but to the United States. The applicant has not met the burden of proving, on a balance of probabilities, that the SIO’s finding under subsection 53(1) that the applicant would be removed to the United States contains a reviewable error. For similar reasons, it could not be found that applicant’s section 12 rights had been infringed. Even if section 12 was engaged by the decision under subsection 53(1), the applicant was being deported to the United States, not Kenya.

(4) In general, decisions under subsection 53(1) are administrative in nature and, as such, the principles of fairness are met by the opportunity, given to the applicant herein, to make written submissions. In any event, there was insufficient evidence to support a conclusion that the principles of fairness had been violated herein.

Two questions were certified, one as to whether paragraph 46.01(1)(a) and subsection 53(1) infringe section 7 of the Charter, the other, as to whether paragraph 46.01(1)(a) infringes Charter section 15.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, s. 36.

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], ss. 7, 12, 15.

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).

Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 3, 19(2)(d), 20(1)(a), 23(4) (as am. by S.C. 1992, c. 49, s. 13), 28 (as am. idem, s. 17), 46.01(1)(a) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 46.01(2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 53(1) (as am. by S.C. 1992, c. 49, s. 43), 70(2)(a) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 83(1) (as am. by S.C. 1992, c. 49, s. 73).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 33.

CASES JUDICIALLY CONSIDERED

APPLIED:

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.); Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (1992), 99 D.L.R. (4th) 264; 18 Imm. L.R. (2d) 81; 151 N.R. 28 (C.A.); Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; (1993), 101 D.L.R. (4th) 654; 10 Admin. L.R. (2d) 1; 20 C.R. (4th) 34; 14 C.R.R. (2d) 1; 18 Imm. L.R. (2d) 245; 150 N.R. 241; Cunningham v. Canada, [1993] 2 S.C.R. 143; (1993), 11 Admin. L.R. (2d) 1; 80 C.C.C. (3d) 492; 20 C.R. (4th) 57; 14 C.R.R. (2d) 234; 151 N.R. 161; 62 O.A.C. 243; Canada (Minister of Employment and Immigration) v. Letshou-Olembo, [1990] 3 F.C. 45 (1990), 73 D.L.R. (4th) 560; 11 Imm. L.R. (2d) 225; 113 N.R. 136 (C.A.); Panjwani v. Minister of Employment and Immigration (1994), 76 F.T.R. 144 (F.C.T.D.); Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Canada (Minister of Employment and Immigration) v. Agbasi, [1993] 2 F.C. 620 (1993), 61 F.T.R. 254; 10 Imm. L.R. (2d) 94 (T.D.); Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).

CONSIDERED:

Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35; 120 N.R. 193 (F.C.A.).

REFERRED TO:

Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Arica v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 670 (C.A.) (QL); Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (1989), 57 D.L.R. (4th) 153 (C.A.); Chichmanov v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 832 (C.A.) (QL); Egan v. Canada, [1995] S.C.J. No. 43 (QL); Thibaudeau v. Canada (Minister of National Revenue—M.N.R.), [1995] S.C.J. No. 42 (QL); Miron v. Trudel, [1995] S.C.J. No. 44 (QL); Kaberuka v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 369 (T.D.) (QL).

APPLICATION for judicial review of a senior immigration officer’s decision that the applicant’s removal from Canada was not prohibited by subsection 53(1) of the Immigration Act. Application dismissed.

COUNSEL:

Daniel L. Winbaum for applicant.

Donald A. MacIntosh for respondent.

SOLICITORS:

Gordner, Klein, Windsor, Ontario, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Heald D.J.: This is an application for judicial review of the decision of Senior Immigration Officer Frank Parko (the SIO) dated February 21, 1994 wherein he determined that the applicant’s removal from Canada was not prohibited by subsection 53(1) of the Immigration Act, R.S.C., 1985, c. I-2 [as am. by S.C. 1992, c. 49, s. 43] (the Act) on the basis that the applicant would not face a threat to his life or freedom if he were removed from Canada. This decision follows the determination on April 6, 1993, that pursuant to paragraph 46.01(1)(a) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36] of the Act the applicant was ineligible to make a Convention refugee claim.

I.          The Facts

The applicant is a citizen of Rwanda and a member of the Tutsi tribe. He was accepted as a Convention refugee by Kenya in the early 1980’s.[1] He lived in Kenya as a permanent resident from 1982 to 1992, leaving Kenya on November 23, 1992 for the United States. He remained in the United States until March 31, 1993 when he attempted to enter Canada. At this time a report was issued under paragraph 20(1)(a) of the Act that it would be contrary to the Act and regulations to grant admission to the applicant on the basis that the applicant was a person described in paragraph 19(2)(d) of the Act. An inquiry before an SIO was scheduled on April 6, 1993 to determine if the allegations in the report were correct. During the inquiry, the applicant claimed Convention refugee status and pursuant to paragraph 46.01(1)(a), the SIO declared the applicant ineligible to make a Convention refugee claim as the applicant has been recognized as a Convention refugee in a country other than Canada, namely Kenya. An exclusion order was then issued pursuant to subsection 23(4) [as am. by S.C. 1992, c. 49, s. 13] of the Act.

Pursuant to subsection 53(1) of the Act, a person declared ineligible to make a Convention refugee claim under paragraph 46.01(1)(a) of the Act shall not be removed from Canada to a country where that person’s “life or freedom would be threatened” by reason of any of the grounds set out in the definition of Convention refugee in subsection 2(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1] of the Act. Subsequent to the finding that the applicant’s removal was not prohibited by subsection 53(1), on March 18, 1994, Wetston J. dismissed an application to stay the execution of the deportation order [[1994] F.C.J. No. 369 (T.D.) (QL)]. The applicant was deported to the United States on March 22, 1994, under the provisions of a U.S.-Canada agreement. The applicant’s counsel did not know the whereabouts of the applicant as of April 7, 1994. The record is silent as to whether the applicant was subsequently deported to Kenya.

After reviewing the applicant’s file, the submissions of the applicant’s counsel and internal documentary evidence, the SIO recommended in an internal memorandum on February 10, 1994 as follows:

It is my decision that Mr. Kaberuka fails to identify a specific individual and personal risk which would be directed solely upon him as opposed to the general situation in Kenya. He may not want to be returned to a country where disorder exists and I share this opinion however he is a person who is under order of removal from Canada and I note from his file that his removal would be to the United States under the reciprocal agreement.[2]

No formal reasons for the SIO decision, supra, were given. Instead, the applicant received a letter from the respondent on February 21, 1994 stating:

Your submission that your life or freedom would be at risk if you were returned to the country of asylum has been reviewed. It is the decision, after this review, that the provision of Section 53 of the Immigration Act whereby your removal would be prohibited, should not apply to you.[3]

II.         Applicant’s Submissions

The applicant submits that the provisions of paragraph 46.01(1)(a) and subsection 53(1) of the Act must be read together. It is counsel’s further submission that when the provisions are read together, it is evident that they contemplate the possibility of a person fearing persecution in a country of asylum. The applicant supports this argument by reference to the Act’s intent to fulfil Canada’s international obligations to refugees and Article 33 of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6]. On this basis, counsel for the applicant submits that under subsection 53(1) an SIO is in essence required to determine whether the person is a Convention refugee. Given that a threat to life and freedom are at issue, the applicant argues that the legislative scheme for determining the validity of the threat must be in accordance with section 7 of the Canadian Charter of Rights and Freedoms (the Charter)[4] or in the alternative meet the requirement of natural justice. As subsection 53(1) provides no right to an oral hearing or reasons, the applicant submits it is inconsistent with the requirements of fundamental justice or natural justice. The applicant also argues that the legislative scheme violates sections 12 and 15 of the Charter.

III.        Respondent’s Submissions

The respondent submits that eligibility decisions do not attract section 7 or 12 of the Charter as there is no absolute right for persons such as the applicant to make a Convention refugee claim or to remain in Canada. The respondent further submits that if the operation of paragraph 46.01(1)(a) and subsection 53(1) does engage section 7, fundamental justice does not guarantee the most favourable or the ideal legislative scheme and on this basis the opportunity to make written submissions meets the requirement for both fundamental justice and any natural justice and procedural fairness owed. The respondent submits that the issuance of the exclusion order is not a quasi-judicial or judicial decision but the exercise of discretion and as such requires minimal fairness in its exercise. Finally, the respondent submits that subsection 53(1) requires the SIO to consider where the applicant would be sent and on the facts herein the applicant would be and was sent to the United States where he was not claiming subsection 53(1) would be violated.

IV.       Issues

1. Are paragraph 46.01(1)(a) and subsection 53(1) of the Act subject to scrutiny, individually or in combination, under sections 7, 12 or 15 of the Charter?[5]; if so

2. Do paragraph 46.01(1)(a) and subsection 53(1), individually or in combination, infringe sections 7, 12 and 15 of the Charter?; if so

3. Was the decision of the SIO made in accordance with sections 7, 12 and 15 of the Charter?; and

4. Was the decision of the SIO made in accordance with the duty of fairness?

V.        Analysis

1.         Are paragraph 46.01(1)(a) and subsection 53(1) of the Act subject to scrutiny, individually or in combination, under sections 7, 12 or 15 of the Charter?

The statutory provisions relevant to this application are as follows. Under section 23, the applicant was subject to the following process:

23. …

(4) Subject to section 28, where a senior immigration officer receives a report made pursuant to paragraph 20(1)(a) in respect of a person and the senior immigration officer is satisfied that

(a) there is no ground on which the adjudicator would be required to make a deportation order under paragraph 32(5)(a), and

(b) the person is

(i) a member of a class of persons referred to in paragraph 19(1)(i), or

(ii) a member of a class of persons referred to in paragraph 19(2)(d) by reason of the fact that the person does not possess a valid and subsisting passport, visa or student or employment authorization and is not a person to whom a document was provided pursuant to section 10.3,

the senior immigration officer shall allow the person to leave Canada forthwith or make an exclusion order against the person. [My emphasis.]

Section 28 [as am. by S.C. 1992, c. 49, s. 17] provides:

28. (1) Where a senior immigration officer is of the opinion that a person who claims to be a Convention refugee is eligible to have the claim referred to the Refugee Division and is a person in respect of whom the senior immigration officer would, but for this section, have made an exclusion order under subsection 23(4) or a departure order under subsection 27(4), the senior immigration officer shall make a conditional departure order against the person.

The relevant eligibility provision is set out in subsection 46.01(1):

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

(a) has been recognized as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned.

The exception to the operation of the provisions supra, is section 53:

53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless ….

The exceptions in this section to the prohibited removal relate to inadmissible classes of which the applicant is not a member.

There are several significant aspects to the legislative scheme quoted supra. The first is that the operation of subsection 23(4), section 28 and paragraph 46.01(1)(a) afford no discretion to the SIO in respect of admitting the applicant to Canada on any basis, although the nature of the removal is discretionary. I conclude this despite the applicant’s submission that the wording of paragraph 46.01(1)(a) requires a substantive analysis, pursuant to Canada’s international legal obligations to refugees, of whether the person “can be returned” to the country of asylum.[6] The second is that subsection 53(1) speaks to only two classes of persons, those who have been granted Convention refugee status under the Act and those who are not eligible to claim this status by operation of paragraph 46.01(1)(a). The latter is the only class of persons ineligible to remain in Canada that is accorded this additional right not to be removed from Canada.

The jurisprudence establishes that the eligibility requirements, including those set out in section 46.01, do not in themselves attract section 7 or 12 of the Charter. In Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696(C.A.), Marceau J.A., speaking for the Court, commented at page 704:

There appears to be even less difficulty in coming to the conclusion that the other decision, made pursuant to subparagraph 46.02(1)(e)(ii) of the Act, is, in itself, also constitutionally sound. 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 [citations omitted].

However, this determination in itself does not defeat the applicant’s Charter arguments. As Marceau J.A. also noted in Nguyen, supra, at page 705:

A legislative scheme may be denounced even if its parts are in themselves acceptable. The interaction between the parts may create a completely new context and force a new approach. This, I believe, is the attitude that the Supreme Court adopted in Chiarelli,[7] supra.

With respect to sections 7 and 12 of the Charter it is the interaction of paragraph 46.01(1)(a) with subsection 53(1) which remains at issue before me.

It is worth quoting extensively from Marceau J.A.’s comments on the interaction of the statutory scheme before the Court in Nguyen, supra. After referring to Chiarelli, supra, Marceau J.A. continued at pages 705-706:

Similarly in our case, while a determination of ineligibility under subparagraph 46.01(1)(e)(ii) of the Act is only indirectly linked to the deportation order, nevertheless it has the effect of taking away the only possible barrier to the issuance of an unconditional deportation order, and as such participates in the deprivation of liberty, and, possibly, the security of the individual which results from deportation. More generally, the deprivation of liberty involved in any forced deportation is given a new dimension by the fact that the individual to be deported claims to be a refugee. It is appropriate, therefore, to assume that section 7 of the Charter is brought into play with respect to the scheme as a whole, that is to say with respect not only to the issuance of the deportation order, but also to the ineligibility decision based on the public danger certificate. The question becomes whether the issuance of the public danger certificate, the central feature of the scheme as a whole, could be said to have violated a principle of fundamental justice.

A complete answer to the question requires that two aspects be examined: the substantive aspect, which is concerned with the contents or the substance of the legislative provision, and the procedural aspect, which looks at the manner in which the legislation is in fact implemented.

Under the statutory scheme being challenged herein, the ineligibility determination is automatic and mandatory for all claimants having Convention refugee status elsewhere, with the only bar to the execution of a removal order being a determination pursuant to subsection 53(1). In my view, such a scheme engages section 7 of the Charter. It does not, however, engage section 12 of the Charter. The ineligibility provision and the review of the applicant’s removal, individually or in combination, do not involve the question of cruel or unusual treatment or punishment. It is only at the stage of the actual removal of the applicant that this issue arises. On this point I rely on the comments of MacGuigan J.A., writing for the Court, in Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3(C.A.) as follows [at pages 23-24]:

But, in any event, it is only a return to Chile which could conceivably put the appellant in any section 12 danger, and it is only the Minister who has the statutory power to subject him to that danger. The Minister cannot even make a decision as to the country of removal until the issue of deportation is settled by the Board.

For this reason I take the view that the appellant cannot succeed in overturning subsection 27(2) or section 32. His case must therefore rest on a challenge to section 53, which is the only provision that can put the appellant’s section 12 rights in jeopardy, because it is the only provision that allows him to be returned to Chile.

…

However, I cannot agree with the appellant’s contention that a judicial review of the Minister’s exercise of discretion would unduly circumscribe the appellant’s case, since as I see it, it is the constitutionality of section 53 which is at the heart of his case, and it may be supposed that his counsel will put this issue before a Court in relation to the ministerial decision. The ex post facto nature of the review (as far as the ministerial decision is concerned) could also be relevant, as urged by the appellant, to the question of whether the Minister provided an opportunity for a hearing, as well as to the psychological trauma which, it was said, accompanies an order of refoulement.[8] [Underlining added.]

I further read Marceau J.A.’s comments at page 704 of Nguyen, supra, as a clear indication that the Federal Court of Appeal is of the opinion that eligibility requirements in the Act are subject to scrutiny under section 15 of the Charter despite the respondent’s submission before me that persons such as the applicant do not have section 15 Charter rights as section 15 of the Charter operates only with respect to permanent residents and citizens of Canada. On this basis, paragraph 46.01(1)(a) in itself engages section 15 of the Charter. It remains for the applicant to show that the eligibility conditions, in the words of Marceau J.A., “have the effect of subjecting a group of claimants to discriminatory treatment within the meaning of section 15”.

2.         Are paragraph 46.01(1)(a) and subsection 53(1), individually or in combination, consistent with sections 7, 12 and 15 of the Charter?

(a)       Are paragraph 46.01(1)(a) and subsection 53(1) consistent with section 7 of the Charter?

Section 7 of the Charter reads:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

An evaluation of the legislative scheme requires an analysis of both the substantive and procedural aspects. As the respondent submitted, the requirements for fundamental justice are not immutable. An evaluation of the legislative scheme requires a contextual approach, an approach confirmed in Chiarelli, supra. Fundamental justice also requires at a minimum procedural fairness: Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, and requires a fair balancing of the interest served by the legislative scheme and the interests of the individual at stake: Cunningham v. Canada, [1993] 2 S.C.R. 143.

The Substantive Aspects

In the context of immigration matters, Sopinka J. in Chiarelli, supra, directed as follows at page 733:

Thus in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country.

The purpose served by subsection 46.01(1) of the Act is consistent with the practice in many jurisdictions in preventing “asylum shopping”, that is preventing a multiplicity of claims by those seeking the most favourable conditions of asylum: see Canada (Minister of Employment and Immigration) v. Letshou-Olembo, [1990] 3 F.C. 45 (C.A.), at page 48. An additional purpose was described by Simpson J. in Panjwani v. Minister of Employment and Immigration (1994), 76 F.T.R. 144 (F.C.T.D.), as follows [at page 147]:

Essentially, s. 46.01(1) is directed to preventing the assertion of unnecessary and unwelcome claims and to establishing some procedural closure on the making of claims.

Against this state interest, what is the right of the individual involved herein? A person ineligible to claim Convention refugee status by operation of paragraph 46.01(1)(a) of the Act is, unlike any other ineligible claimant, granted the right not to be removed from Canada notwithstanding a valid removal order, where removal would threaten her life or freedom for any ground specified in the definition of Convention refugee in subsection 2(1) of the Act. This right is also a right attached to the status of a Convention refugee. On the implications of the rights attached to the status of a Convention refugee, including the right under subsection 53(1), formerly section 55 of the Immigration Act, 1976,[9] I am guided by the comments of both Wilson and Beetz JJ. in Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Wilson J. commented as follows at page 210:

… if the appellants had been found to be Convention refugees as defined in s. 2(1) of the Immigration Act, 1976 they would have been entitled as a matter of law to the incidents of that status provided for in the Act. Given the potential consequences for the appellants of a denial of that status if they are in fact persons with a “well-founded fear of persecution”, it seems to me unthinkable that the Charter would not apply to entitle them to fundamental justice in the adjudication of their status.

As Beetz J. noted in his concurring judgment in Singh, supra, at page 230:

The Immigration Act, 1976 gives convention refugees the rights to “remain” in Canada, or, if a Minister’s permit cannot be obtained, at least the right not to be removed to a country where life and freedom is threatened, and to re-enter Canada if no safe country is willing to accept them. The rights at issue in these cases are accordingly of vital importance for those concerned.

The right afforded to ineligible claimants under subsection 53(1) is clearly intended by Parliament to give effect to international obligations, specifically Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees to which Canada is a signatory, which provides as follows:

Article 33

Prohibition of Expulsion or Return (“Refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

This intent is affirmed by section 3 of the Act:

3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need

…

(g) to fulfil Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted.

Thus the obligation under Article 33 is preserved in the case of those who are barred from having a claim to be a Convention refugee determined by automatic operation of subsection 53(1) in constraining their removal. Given the fundamental principle that non-citizens do not have an unqualified right to remain in Canada, and in light of Marceau J.A.’s conclusion that a foreigner has no absolute right to be recognized as a political refugee, I conclude that the fact that the prohibition of removal in subsection 53(1) is triggered by a declaration of ineligibility under paragraph 46.01(1)(a) is consistent with the substantive requirements of fundamental justice. The automatic operation of subsection 53(1) for those ineligible under paragraph 46.01(1)(a) is a legitimate compromise between the interest of the state in preventing asylum shopping and ensuring that possible consequences of the eligibility criteria—removal from Canada—are assessed within a mandatory evaluation of the potential of harm to a paragraph 46.01(1)(a) claimant at the hands of his country of asylum.

The Procedural Aspects

How is subsection 53(1) in fact implemented? According to the record before me, there is simply no procedure. Neither the Act nor the regulations provided for a hearing of any kind, a duty to give reasons or an opportunity to make submissions. There is no right of appeal. In addition, it is clear from the record that immigration officials are equally lacking in established policy and procedure to deal with this type of decision. In a memorandum of July 15, 1993 to the Program Manager of Hearing & Appeals for the Ontario Region, the following question is posed:

Reference is made to refugee claimants deemed ineligible by an SIO under A46.01(1)(a) and the referral to Region for a risk assessment …

We have now received 2 submissions from clients for risk assessment by our PCDO [Post Claims Determination Office?]. The PCDO is unaware of this responsibility as PCDO and is referencing the Manual where the referral to Region for assessment is directed. Who is to do these risk assessments?

If they are to be done by PCDO’s instead of region then specific instructions should go to the PCDO’s and all field offices in Ontario so that the SIO’s are aware of this change from the Manual.[10]

A memorandum from Hearing & Appeals, Ontario Region dated December 7, 1993, outlines the policy of the respondent:

Because of the small number of these type of cases to date, an informal arrangement to deal with them was initiated shortly after C86 came into effect between our Directorates.

By way of this memo, we are confirming that you may continue to refer cases of this type directly to the PCDO unit in your area for assessment. Please forward the material required as per IE12.19 and the file to the appropriate PCDO unit.[11]

This being said, the determination under subsection 53(1) is not, as the applicant would have this Court decide, a similar determination to that under subsection 2(1) of the Act. The difference can be explained with reference to the requirement that the applicant must show there “would” be a threat … to meet the requirement in subsection 53(1) in contrast to the threshold of “more than a mere possibility” as it relates to establishing an objectively well-founded fear of persecution.[12] It is of further interest that Parliament chose in the Immigration Act to permit a determination of a Convention refugee claim where a person recognized as a Convention refugee in another jurisdiction claimed persecution by the country of asylum. Subsection 46.01(2) operated as an exception to paragraph 46.01(1)(a) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14]:

46.01 …

(2) Notwithstanding paragraph (1)(a), a person is eligible to have a claim determined by the Refugee Division if, in the opinion of the adjudicator or the member of the Refugee Division considering the claim, the person has a credible basis for a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion in the country that recognized the person as a Convention refugee.

This provision was repealed and replaced.[13] Subsection 46.01(2) now reads as follows:

46.01 …

(2) The Minister may, by order, suspend the application of paragraph (1)(b) for such period, or in respect of such classes of persons, as may be specified in the order.

While under subsection 46.01(2) of the Immigration Act those with Convention refugee status elsewhere were permitted to make Convention refugee claims against their country of asylum, there is no equivalent to this provision in the Act as it now reads. The repeal of the substance of subsection 46.01(2) of the Immigration Act indicates that Parliament has chosen to exclude persons recognized as Convention refugees by another country from claiming a well-founded fear of persecution by their country of asylum.

While a decision pursuant to subsection 53(1) is not equivalent to the evaluation of a Convention refugee claim, it nevertheless must be procedurally consistent with the principles of fundamental justice. There is no jurisprudence directly on point. Hoang v. Canada (Minister of Employment& Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.), appears relevant given that on its facts a Convention refugee was facing deportation potentially in violation of subsection 53(1). However, evaluation of a threat to life or freedom was irrelevant to the deportation as the deportee therein fell within the exceptions to subsection 53(1). As MacGuigan J.A. noted at page 41:

Finally, with respect to Canada’s international obligations, we note that Article 33 of the United Nations Convention Relating to the Status of Refugees of 1951 itself provides an exception to the prohibition against refoulement where the deportee has been convicted of a particularly serious crime, which constitutes a danger to the community.

Thus the Federal Court of Appeal did not consider the nature of the determination or the Charter implications of this section.

The applicant did not convince me that fundamental justice requires statutory procedures pursuant to subsection 53(1) for those already recognized as Convention refugees in another jurisdiction. Those declared ineligible pursuant to paragraph 46.01(1)(a) are not entitled as a class to a statutory right to similar procedures in an assessment under subsection 53(1) as those mandated by section 7 of the Charter for persons eligible to claim Convention refugee status under the Act. Those found ineligible under paragraph 46.01(1)(a) are the only ineligible class automatically accorded the significant right accorded to Convention refugees under the Act—a right not to be removed in the circumstances specified under subsection 53(1). The evaluation of these circumstances should be left to the discretion of immigration officials. It is not insignificant that the exercise of this discretionary power remains subject to judicial review by this Court under section 18.1 of the Federal Court Act , R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], where exercised pursuant to the grounds of review set out in subsection 18.1(4).

For all of the above reasons, I find the statutory scheme challenged herein consistent with section 7 of the Charter.

(b)       Are paragraph 46.01(1)(a) and subsection 53(1) consistent with section 12 of the Charter?

I do not need to address this issue in light of my finding that any issues under section 12 arise only where the removal proceedings are directly under attack. However, in the circumstances of this applicant, the removal has occurred. It is, therefore, appropriate to consider later in these reasons whether, in effecting the applicant’s removal, the respondent infringed section 12 of the Charter.

(c)        Does paragraph 46.01(1)(a) infringe section 15 of the Charter?

Subsection 15(1) of the Charter reads as follows:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[14]

The applicant argued that paragraph 46.01(1)(a) “unfairly attempt[s] to make a distinction between convention [sic] refugees so found in Canada as against those found to be refugees in another country”.[15] In particular, the applicant submitted that individuals found to be Convention refugees in Canada have the right to appeal a removal order to Immigration and Appeal Division under paragraph 70(2)(a) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act whereas no such right is afforded those found to be Convention refugees elsewhere.

The eligibility requirements clearly limit the rights of some classes of persons seeking to claim Convention refugee status. To show discrimination under section 15 of the Charter the applicant must also show that the basis for drawing the distinction between those having Convention refugee status elsewhere rests on one of the enumerated grounds in section 15 or on an analogous ground: see Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.[16] The applicant did not make any argument before me as to which, if any, of the expressly mentioned grounds listed in section 15 of the Charter are subsumed in the status of a Convention refugee in another jurisdiction. Nor did the applicant suggest any basis to find an analogous ground linked to the applicant’s status as a person with Convention refugee status elsewhere.

For all of the above reasons, I cannot find that distinctions created by paragraph 46.01(1)(a) subject persons such as the applicant to discriminatory treatment under section 15 of the Charter.

3.         Was the decision of the SIO made in accordance with sections 7, 12 and 15 of the Charter?

While I find the statutory scheme constitutional, I do not find that in the circumstances of the applicant, the discretion was exercised in a manner consistent with the requirements of fundamental justice with respect to the applicant’s fear of harm in Kenya, his country of asylum. On this point I adopt the words of Dubé J. of this Court in Canada (Minister of Employment and Immigration) v. Agbasi, [1993] 2 F.C. 620(T.D.), at pages 635-636:

Furthermore, the case law of this Court indicates quite clearly that the Tribunal has not only the authority, but also the responsibility to consider whether the relevant statutory provisions might violate the Charter rights of the parties in any given case, and a duty not to apply that legislation in cases of Charter violation. This Court has also underscored the importance of interpreting statutory provisions in light of Charter values. [Citations omitted.]

The applicant herein was recognized as a Convention refugee in Kenya on the basis of a well-founded fear of persecution in Rwanda, his country of origin. The applicant’s alleged fear of persecution in Kenya was two-fold. The first was related to the Kenyan government’s alliance with the Rwandan government the applicant had actively sought to overthrow by his membership in the Rwandan Patriotic Front and Kenya’s expressed intent to deport Rwandan refugees back to Rwanda at the request of the Rwandan government. The second aspect of the applicant’s claim was related to his specific experiences of harassment by the police as a Rwandan and a refugee which included beatings and imprisonment and the state’s refusal to renew his work permit. The applicant was accorded the right to counsel and the right to make written submissions. He was not, however, accorded the right to an oral hearing or entitled to reasons.

I return to the comments of Beetz J. in Singh, supra, at page 231 on the content of procedural fairness:

… threats to life or liberty by a foreign power are relevant, not with respect to the applicability of the Canadian Bill of Rights, but with respect to the type of hearing which is warranted in the circumstances. In my opinion, nothing will pass muster short of at least one full oral hearing before adjudication on the merits.

There are additional reasons why the appellants ought to have been given an oral hearing. They are mentioned in the following submission with which I agree:

The Appellants submit that although “fundamental justice” will not require an oral hearing in every case, where life or liberty may depend on findings of fact and credibility, and it may be [sic] in these cases, the opportunity to make written submissions, even if coupled with an opportunity to reply in writing to allegations of fact and law against interest, would be insufficient.

According to the applicant’s written submissions, he was jailed, beaten, denied a work permit and any opportunity to work. He knew of several colleagues who were kidnapped by the Kenyan police and handed over to Rwandan authorities. The applicant stated that these actions were aimed at forcing Rwandan refugees from Kenya. The applicant also provided evidence that the Kenyan government had forcibly repatriated 1000 refugees to Rwanda without due process of law and in violation of Article 33 of the Convention, supra.[17] Given this, the SIO’s conclusion that the applicant failed to identify a personal risk “directed solely at him” must have been based in part on an adverse assessment of the applicant’s credibility. I arrive at this conclusion on the facts before me in light of the supporting documentary evidence. In these circumstances an oral hearing and a fuller opportunity to know the case to meet would normally be required.

However, as the respondent emphatically submitted, the applicant was, at least initially, facing removal to the United States, from where he had originally attempted to enter Canada, by operation of “Section III.2.C of the Reciprocal Arrangement”. This “Reciprocal Arrangement” was not in evidence before me. There was evidence on the record to the effect that the applicant was removed to the United States, that is, was not removed to Kenya: a letter of April 6, 1993 from the Manager, Canada Immigration Centre to Port Director, United States Immigration and Naturalization Services confirming the applicant’s upcoming removal to the United States and the February 21, 1994 direction to report for removal which informs the applicant as follows: “Your removal will be to the United States, Under the Canada/USA Reciprocal Agreement”. In the affidavit filed in support of the application for judicial review and during the hearing of this matter, counsel for the applicant informed the Court that he has had no contact with the applicant subsequent to the applicant’s removal and is not aware of the applicant’s whereabouts.

I am thus faced with a similar situation to that described by Wetston J. in his reasons dismissing the applicant’s motion to stay the execution of the deportation order issued against him:

In the absence of evidence as to the procedure that would be followed with respect to the Applicant upon his arrival in the United States this Court cannot find that irreparable harm would follow from the denial of the stay application. The onus is on the Applicant to bring forth evidence of irreparable harm.[18]

The onus remains on the applicant in the matter before me. The applicant bears the burden of proving his case on a balance of probabilities both in relation to judicial review and more particularly in relation to any alleged infringement of the Charter by either the statutory framework or its application to the applicant. It is clear that while the SIO considered the possibility of the applicant’s removal to Kenya, the SIO also determined that the applicant was, in any event, facing removal to the United States where the applicant did not claim his life or freedom would be threatened. This was the basis for the SIO’s finding that such a removal would not breach the provisions of subsection 53(1). I conclude that the applicant has not met the burden of proving, on a balance of probabilities, that the SIO’s finding under subsection 53(1) that the applicant would be removed to the United States contains a reviewable error.

For similar reasons, I do not find that the applicant’s section 12 Charter rights were infringed. Even if section 12 was engaged by the decision under subsection 53(1), the applicant was being deported to the United States. The applicant was not alleging he would face cruel or unusual treatment or punishment there.

4.         Was the decision of the SIO made in accordance with the principles of fairness?

In general, decisions under subsection 53(1) are administrative in nature. As such, they require a level of fairness which is certainly met by an opportunity to make written submissions: see Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.). In light of the onus on the applicant, there was insufficient evidence before me to support a conclusion that the principles of fairness had been violated in the circumstances of this case.

VI.       Conclusion

For all of the above reasons, this application for judicial review is dismissed.

I turn now to the issue of certification of a serious question of general importance pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Act. Both parties submitted questions concerning the constitutionality of paragraph 46.01(1)(a) and subsection 53(1) in relation to sections 7, 12 and 15 of the Charter. The applicant submitted four questions: (1) Does paragraph 46.01(1)(a) infringe sections 7 and 15 of the Charter; (2) Does subsection 53(1) infringe sections 7, 12 or 15 of the Charter; (3) Do paragraph 46.01(1)(a) and subsection 53(1) together infringe sections 7, 12 or 15 of the Charter; and (4) Is the failure of subsection 53(1) to provide formal guidelines for evaluating threats to life or freedom in the context of paragraph 46.01(1)(a) inconsistent with the requirements of fundamental or natural justice?

The respondent submitted that the section 12 infringement was not argued and should not be certified, and further objected to the certification of the fourth question on the basis that natural justice can be abrogated by statute. The respondent suggested his own question: Do persons in the position of this applicant have section 15 rights with respect to the legislative provisions of paragraph 46.01(1)(a) and subsection 53(1)?

The Federal Court of Appeal outlined the criteria for certification in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.) as follows [at page 5]:

In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application … but it must also be one that is determinative of the appeal.

I find it clear, from the jurisprudence discussed herein, that the eligibility provision of paragraph 46.01(1)(a) in itself is constitutionally sound with respect to section 7 of the Charter. It is also clear that the Federal Court of Appeal in Nguyen, supra, contemplated the application of section 15 of the Charter to the eligibility provisions of the Act. I agree with the respondent that section 12 of the Charter does not arise at this stage as the removal order was not directly under attack. The remaining questions, which are determinative of any appeal, relate to whether when read together paragraph 46.01(1)(a) and subsection 53(1) infringe section 7 of the Charter and whether paragraph 46.01(1)(a) infringes section 15 of the Charter. I therefore certify the following questions:

1. Do paragraph 46.01(1)(a) and subsection 53(1) infringe section 7 of the Charter by

(i) denying a person claiming persecution in the person’s country of asylum the right to make a Convention refugee claim; or

(ii) not according fundamental justice in the evaluation of a claim that a person’s life or freedom would be threatened in the person’s country of asylum for reasons of race, religion, nationality, membership in a particular social group or political opinion?; and

2. Does paragraph 46.01(1)(a) infringe section 15 of the Charter?

I decline to certify any question in relation to the more specific issues of whether the application of the statutory framework to the applicant violated his section 7 Charter rights or the duty of fairness owed on the facts of his case as these questions do not transcend the interests of the immediate parties.

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