IMM-2788-97
Peter Ndebele Gwala (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Gwalav. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Tremblay-Lamer J."Ottawa and Vancouver (video conference), May 14; Ottawa, May 25, 1998.
Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Judicial review of Senior Immigration Officer's (SIO) decision applicant ineligible pursuant to Immigration Act, s. 46.4(1) to have refugee status claim determined by CRDD, declaring Refugee Division's decision re: claim null, void — Applicant granted Convention refugee status — SIO subsequently concluding applicant obtained referral to Refugee Division by fraud, misrepresentation of material fact — Court lacking jurisdiction on judicial review to decide constitutional questions because SIO lacking power to determine questions of law — Administrative tribunal not having independent source of jurisdiction pursuant to Constitution Act, 1982, s. 52(1) — Powers to determine questions of law must be conferred either expressly or implicitly — Immigration Act not expressly conferring on SIO authority to consider questions of law — Courts have yet to decide whether jurisdiction conferred implicitly on SIO to consider questions of law — S.C.C. case suggesting tribunal should have adjudicative role to have power to determine questions of law — SIO not having adjudicative function — Simple administrative procedure whereby SIO making decision as to refugee claimant's eligibility — Parliament not intending to confer on SIO s. 52(1) jurisdiction — Question certified: Whether SIOs having implied jurisdiction to decide questions of law; if not, whether F.C.T.D., when hearing judicial review application under Federal Court Act, s. 18.1, having jurisdiction to decide constitutional validity of Immigration Act section.
Constitutional law — Charter of Rights — Life, liberty and security — Judicial review of Senior Immigration Officer's (SIO) decision applicant ineligible pursuant to Immigration Act, s. 46.4(1) to have claim for refugee status determined by CRDD, declaring Refugee Division's decision re: claim null, void — Applicant granted Convention refugee status — SIO subsequently concluding applicant obtained referral to Refugee Division by fraud, misrepresentation of material fact — Application dismissed — S. 46.4 providing for —redetermination of eligibility— where prior positive finding on eligibility induced by fraud, misrepresentation — Not amounting to return to country where found to have well-founded fear of persecution — Applicant not Convention refugee — But for fraud, would never have been considered refugee — Argument once Convention refugee determination made, finding of misrepresentation, fraud cannot supplant it, creating distinction based on stage at which fraud, misrepresentation found out — Cannot make such distinctions — As any right applicant may have had as Convention refugee obtained by fraud, not entitled to it — Furthermore, s. 46.4 eligibility provision — F.C.A. holding eligibility screening terminating right of refugee claimants to claim protection under Charter, s. 7 — No s. 7 right engaged by s. 46.4.
Constitutional law — Charter of Rights — Criminal process — Judicial review of Senior Immigration Officer's (SIO) decision applicant ineligible pursuant to Immigration Act, s. 46.4(1) to have claim for refugee status determined by CRDD, declaring Refugee Division's decision re: claim null, void — Applicant granted Convention refugee status — SIO subsequently concluding applicant obtained referral to Refugee Division by fraud, misrepresentation of material fact — Charter, s. 12 not offended by s. 46.4 — Refugee claimant obliged to truthfully present circumstances of case to SIO under s. 45(5) — To allow refugee claimants who misrepresent themselves or attempt by fraud to obtain protection of Canadian state to gain rights, would outrage society's standards of decency.
This was an application for judicial review of a senior immigration officer's (SIO) decision that the applicant was ineligible pursuant to Immigration Act, subsection 46.4(1) to have his refugee status claim determined by the Immigration and Refugee Board, Convention Refugee Determination Division. The applicant had been granted refugee status in August 1994. It subsequently came to light that the eligibility decision may have been obtained through fraud and misrepresentation of a material fact, namely that the applicant had previously made a refugee claim in Canada which had been denied. After an interview, the SIO concluded, pursuant to section 46.4, that the applicant had obtained his referral to the Refugee Division by fraud and misrepresentation of a material fact. She then revisited the initial eligibility decision and determined that, pursuant to subsection 46.01(1), the applicant was ineligible for determination of his claim by the Refugee Division because he had already had a claim decided by the tribunal. She also advised the applicant that pursuant to subsection 46.4(2), any decision rendered by the Refugee Division in respect of his refugee claim would be null and void.
The applicant challenged the constitutionality of section 46.4 in so far as it required the making of an order which violated his rights under Charter, sections 7 and 12.
The issues were: (1) whether the Court had jurisdiction on judicial review to decide the constitutional question; (2) whether the SIO had the power under Constitution Act, 1982, subsection 52(1) to declare inoperative sections of the Immigration Act; (3) whether, in so far as a refugee claimant has been declared a Convention refugee by the Refugee Division, it violates a refugee claimant's rights to life, liberty and security of the person guaranteed by Charter, section 7 to void the Refugee Division's decision, revisit the initial eligibility decision and declare the claimant ineligible to make a claim, because it exposes the claimant to return to the country where he was determined to have a well-founded fear of persecution; and (4) whether it would amount to cruel and unusual treatment to return the applicant to a country where he faces a risk of persecution.
Held, the application should be dismissed.
(1) This Court lacked jurisdiction on judicial review to decide the constitutional question because the SIO did not have the power to determine the constitutional validity of section 46.4.
(2) An administrative tribunal does not have an independent source of jurisdiction pursuant to Constitution Act, 1982, subsection 52(1). Rather, the powers to determine questions of law must have been conferred on it either expressly or implicitly by the legislature before it is able, by virtue of subsection 52(1), to declare inoperative provisions of its empowering legislation. There is no provision in the Immigration Act which expressly confers on an SIO the authority to consider questions of law. And the courts have not yet decided whether SIOs have implicit jurisdiction to consider questions of law.
It has been suggested that for a tribunal to have the power to determine questions of law, it should have an adjudicative role. The scheme of the Act supports a finding that an SIO does not have an adjudicative function. Clearly, the legislator intended a simple administrative procedure whereby the SIO would make a decision with respect to the eligibility of the refugee claimant. Parliament did not intend to confer on the SIO subsection 52(1) jurisdiction. The SIO lacks any special expertise in dealing with questions of law, and does not have jurisdiction to decide such questions.
(3) Section 46.4 provides for the redetermination of eligibility by the SIO, in the event that a prior positive finding on eligibility was induced by fraud or misrepresentation. This does not amount to the return (refoulement) of a Convention refugee. In fact, the applicant was not a Convention refugee. Were it not for his fraud or misrepresentation, he would have been precluded from the refugee determination system, and never considered a refugee for the purposes of the Act.
To accept the argument that once a Convention refugee determination is made, a finding of misrepresentation and fraud cannot supplant it, would create a distinction between refugee claimants whose fraud or misrepresentation was discovered before their claim was referred to the Refugee Division and who were precluded from the system, and those who managed to keep their fraud or misrepresentation from being discovered on time, thereby having their claim referred and then accepted by the Board. A distinction cannot be based on the stage at which the fraud was perpetrated or the misrepresentation was found out. Any right that the applicant may have had as a Convention refugee was obtained by way of fraud, and therefore he was not entitled to it.
Furthermore, section 46.4 is an eligibility provision. The Federal Court of Appeal has held that eligibility screening has terminated the right of refugee claimants to claim protection under section 7. Thus, no section 7 right was engaged by section 46.4.
(4) Charter, section 12 is not offended by section 46.4. A refugee claimant has an obligation to truthfully present the circumstances of his case to the SIO under subsection 45(5). To allow a refugee claimant who misrepresents himself or who attempts to fraudulently obtain the protection of the Canadian state to use his misrepresentation to gain rights would outrage society's standards of decency.
As the case law stands, the only avenue remaining for challenging the validity of section 46.4 would be to bring an action in the Federal Court or a provincial superior court for a declaration of constitutional invalidity simultaneously with a judicial review proceeding in the Federal Court, which would have to be stayed pending the outcome of the action (or, in the event that the parties failed to do so, the Court would have to sever the proceeding into an action and a judicial review). This multiplicity of procedures would be impractical, costly and time consuming. Moreover, the judicial review proceeding might be the appropriate way of dealing with situations similar to this. Federal Court Act, paragraph 18.1(4)(f) is a basket clause which allows the Court to intervene where a tribunal has "acted in any other way that was contrary to the law". It has been noted that this provision was added to allow the Court on judicial review to consider Charter issues where the tribunal whose decision is under review did not have the power to decide questions of law. The introduction of fresh evidence on Charter issues should be allowed, although normally on judicial review only evidence that was before the decision maker can be considered. This is an important consideration when dealing with a section 1 argument under the Charter.
The following question was certified: whether SIOs have implied jurisdiction to decide questions of law, and if not, whether the Trial Division, when hearing an application for judicial review under Federal Court Act, section 18.1, has jurisdiction to decide a constitutional challenge to the validity of a section of the Immigration Act.
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], ss. 1, 7, 12.
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52(1).
Family Allowances Act, 1973, S.C. 1973-74, c. 44, s. 15.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(f) (as enacted by S.C. 1990, c. 8, s. 4).
Immigration Act, R.S.C., 1985, c. I-2, ss. 45(5) (as am. by S.C. 1992, c. 49, s. 35), 46.01(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 46.4 (as enacted by S.C. 1995, c. 15, s. 11).
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 31.
cases judicially considered
applied:
Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996); 140 D.L.R. (4th) 193; 40 C.R.R. (2d) 81; 204 N.R. 1; Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.); 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.); Chiarelli v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 299; (1990), 67 D.L.R. (4th) 697; 42 Admin. L.R. 189; 10 Imm. L.R. (2d) 137; 107 N.R. 107 (C.A.); Chan v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 612; (1994), 22 Imm. L.R. (2d) 105; 73 F.T.R. 279 (T.D.).
considered:
Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 91 CLLC 14,023; 126 N.R. 1; Tétreault-Gadoury v. Canada (Canada Employment and Immigration Commission), [1989] 2 F.C. 245; (1988), 53 D.L.R. (4th) 384; 33 Admin. L.R. 244; 23 C.C.E.L. 103; 88 CLLC 14,050; 88 N.R. 6 (C.A.); Canada (Attorney General) v. Sirois (1988), 90 N.R. 39 (F.C.A.); Armadale Communications Ltd. v. Adjudicator (Immigration Act), [1991] 3 F.C. 242; (1991), 83 D.L.R. (4th) 440; 14 Imm. L.R. (2d) 13; 127 N.R. 342 (C.A.);
referred to:
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94; [1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC 17,002; 118 N.R. 340; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1; Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174; (1995), 129 D.L.R. (4th) 226 (T.D.); Franz v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 79 (F.C.T.D.); Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139; 29 Imm. L.R. (2d) 1 (F.C.T.D.); Sivaraj v. Canada (Minister of Citizenship & Immigration) (1996), 107 F.T.R. 64 (F.C.T.D.); affd sub nom. Nagarajah v. Canada (Minister of Citizenship and Immigration), A-42-96, Robertson J.A., judgment dated 23/5/96, not reported; sub nom. Gowrinathan v. Canada (Minister of Citizenship and Immigration), A-72-96, Robertson J.A., judgment dated 23/5/96, not reported; sub nom. Vilvaratnam v. Canada (Minister of Citizenship and Immigration), A-74-96, Robertson J.A., judgment dated 23/5/96, not reported.
authors cited
Desjardins, Alice. "Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting", in Special Lectures of the Law Society of Upper Canada , Toronto: Carswell, 1992.
Waldman, Lorne. Immigration Law and Practice, Vol. 1, Toronto: Butterworths, 1992.
APPLICATION for judicial review of a senior immigration officer's decision that the applicant was ineligible pursuant to Immigration Act, subsection 46.4(1) to have his refugee status claim determined by the Immigration and Refugee Board, Convention Refugee Determination Division, and declaring the Refugee Division's decision that he was a Convention refugee null and void because it was based on fraud and misrepresentation of a material fact. Application dismissed and question certified.
counsel:
Carolyn McCool for applicant.
Leigh A. Taylor for respondent.
solicitors:
Legal Services Society Immigration and Refugee Law Clinic, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Tremblay-Lamer J.: This is an application for judicial review of a decision of a senior immigration officer (SIO) wherein it was determined that the applicant was ineligible, pursuant to subsection 46.4(1) of the Immigration Act1 (Act), to have his claim for refugee status determined by the Convention Refugee Determination Division of the Immigration and Refugee Board (Refugee Division).
In November 1993, the applicant attended the Canada Immigration office in Vancouver to make a refugee claim. He stated that he was a citizen of South Africa. His claim was referred to the Refugee Division which eventually granted him refugee status in August 1994. Evidence subsequently came to the attention of the respondent, however, that the eligibility decision may have been obtained through fraud and misrepresentation of a material fact, namely, that the applicant had previously made a refugee claim in Canada which was denied.
While attending the Canada Immigration office in Vancouver in January 1995, the applicant was apprehended by an investigation officer who believed him to be Louis Onodjamue against whom an arrest warrant had been issued. Mr. Onodjamue came to Canada in October 1990. He claimed to be a citizen of Nigeria and asked for refugee status which he was eventually denied by the Refugee Division. The immigration authorities were unable, however, to effect Mr. Onodjamue's removal from Canada as his whereabouts were unknown at the time.
Following the applicant's arrest, a detention hearing was held. The applicant advised the adjudicator that he was really Peter Gwala. He explained that while he was sitting in the waiting room, the real Mr. Onodjamue handed him his documents while he went to the bathroom. When Mr. Onodjamue's name was called, the applicant stood up with the documents.
Meanwhile the immigration authorities were conducting an investigation into the applicant's identity. His prints were compared with Mr. Onodjamue's prints contained in his passport. The results of the analysis were inconclusive. Fingerprints could not be compared because Onodjamue's passport fingerprint was not good enough. A handwriting analysis was then done. Handwriting samples contained in documents taken from the file of Onodjamue were compared with those taken from the file of Gwala. It was determined, based on the significant handwriting similarities coupled with the lack of significant differences, that the same person wrote all the samples.
In a letter addressed to the applicant, the respondent advised him that he may have obtained his referral to the Refugee Division on the basis of fraud and misrepresentation. The letter also invited the applicant to attend before a SIO in order to address the evidence to be considered in his case. The applicant was provided with copies of this evidence.
At the interview, the applicant was accompanied by his counsel. He was given the opportunity to make oral submissions. He declined, but later provided written submissions.
The SIO advised the applicant of her decision in a letter dated June 17, 1997. She concluded, pursuant to section 46.4 [as emacted idem] of the Act, that the applicant had in fact obtained his referral to the Refugee Division on the basis of fraud and misrepresentation of a material fact. The SIO then revisited the initial eligibility decision and determined that, pursuant to subsection 46.01(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9] of the Act, the applicant was ineligible for determination of his claim by the Refugee Division because he already had a claim decided by the tribunal. She also advised the applicant that pursuant to subsection 46.4(2) of the Act, any decision rendered by the Refugee Division in respect of his refugee claim would be null and void.
The applicant now seeks judicial review of the SIO's decision, challenging the constitutionality of section 46.4 of the Act in so far as it requires the making of an order which violates his constitutional rights. Section 46.4 reads:
46.4 (1) Where a person's claim has been referred to the Refugee Division and a senior immigration officer is satisfied that the decision with respect to the eligibility of the person to have their claim referred was based on fraud or a misrepresentation of a material fact and the person would not otherwise be eligible to have their claim referred, the senior immigration officer shall forthwith
(a) make a determination that the person is ineligible to have their claim referred to the Refugee Division; and
(b) notify the Refugee Division of that determination.
(2) On being notified pursuant to subsection (1), the Refugee Division shall terminate its consideration of the claim and any decision made by the Refugee Division in respect of the claim is null and void.
1. JURISDICTIONAL ISSUE
Before addressing the constitutional questions, I must first deal with the preliminary issue raised by the respondent with respect to this Court's jurisdiction. The respondent takes the position that this Court does not have the jurisdiction on judicial review to decide the constitutional questions because the SIO does not have the power under subsection 52(1) of the Constitution Act, 19822 to declare inoperative sections of the Immigration Act.
For this proposition, the respondent relies on the Supreme Court of Canada's decision in Tétreault-Gadoury v. Canada (Employment and Immigration Commission).3 In that case, the constitutionality of section 31 of the Unemployment Insurance Act, 19714 was challenged directly before the Federal Court of Appeal [[1989] 2 F.C. 245] from the Board of Referees, without the benefit of a ruling by the Umpire. La Forest J. found that the Board of Referees had no jurisdiction to decide the constitutional question. Because the jurisdiction of the Federal Court of Appeal was limited to overseeing and controlling the legality of decisions rendered by administrative bodies and to referring matters back for redetermination, the Court did not have the jurisdiction to rule on the constitutional question when the Board of Referees itself did not have such jurisdiction. La Forest J. wrote:
The appellant raises a subsidiary issue as to whether the Federal Court of Appeal was entitled to consider the constitutional question, if the Board of Referees did not have jurisdiction over it.
. . .
. . . one cannot overlook the special nature of the Federal Court of Appeal's powers of review under s. 28 of the Federal Court Act. The powers of the Federal Court of Appeal under that section are limited to overseeing and controlling the legality of decisions of administrative bodies and to referring matters back to those bodies for redetermination, with directions when appropriate; see Federal Court Act, R.S.C., 1985, c. F-7, s. 52(d); Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233, per Marceau J., at p. 247. I am therefore of the view that, while the jurisdictional question was legitimately before the Court of Appeal, the court had no jurisdiction to make a final determination of the constitutional question.5
The respondent also refers the Court to decisions of the Federal Court of Appeal which stand for the same proposition. For example, in Canada (Attorney General) v. Sirois,6 the Court of Appeal held that it did not have on judicial review the power to rule on the constitutionality of certain provisions of the Family Allowances Act, 1973,7 because the tribunal created under section 15 of that Act did not have the power to rule on such a matter.
Given these authorities, the first question I must determine is whether or not the SIO has the power to decide the constitutional validity of section 46.4 of the Act. The issue of whether an administrative tribunal has the power to determine the constitutionality of a statutory provision was dealt with by the Supreme Court of Canada in four cases, namely Douglas/Kwantlen Faculty Assn. v. Douglas College;8 Cuddy Chicks Ltd. v. Ontario (Labour Relations Board);9 Tétreault-Gadoury v. Canada (Employment and Immigration Commission)10 and more recently in Cooper v. Canada (Human Rights Commission).11 All four cases make it clear that an administrative tribunal empowered to decide questions of law may consider the constitutional validity of its enabling legislation. An administrative tribunal does not have an independent source of jurisdiction pursuant to subsection 52(1) of the Constitution Act, 1982. Rather, the legislature must have conferred upon it either expressly or implicitly the powers to determine questions of law before it is able, by virtue of subsection 52(1), to declare inoperative provisions of its empowering legislation.
It was recognized by the respondent that there is no provision in the Act which expressly confers on the SIO the authority to consider questions of law. It then becomes necessary to determine whether the legislator has granted SIOs the implicit jurisdiction to consider questions of law. This issue has not yet been decided by the courts.
In his book entitled Immigration Law and Practice,12 Lorne Waldman argues in favour of the SIO having jurisdiction to consider questions of law. He bases his argument on the Federal Court of Appeal's decision in Armadale Communications Ltd. v. Adjudicator (Immigration Act),13 wherein it was decided that immigration adjudicators have subsection 52(1) jurisdiction. In reaching this conclusion, Hugessen J.A. was influenced by the fact that there was no appeal to another competent body which had Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] jurisdiction. Using this type of reasoning, Waldman posits that the SIO does have the power to decide questions of law because "there is no other appellate body that would have such jurisdiction, the importance to the refugee claimant of the eligibility determination and the finality of a negative determination all point to granting senior immigration officers Charter jurisdiction".14
However, Waldman also acknowledges that there is a difference between the jurisdiction of the adjudicator, who is often called upon to make complex legal decisions involving interpretations of foreign statutes, and the jurisdiction of the SIO which is very limited. This is a valid point, especially considering the decision of the Supreme Court of Canada in Cooper.
The issue in Cooper was whether the Canadian Human Rights Commission had the implicit power to determine the constitutionality of its enabling legislation. To determine the issue, La Forest J., for the majority, considered whether the Commission had been given the mandate by Parliament to determine questions of law. The mandate given to an administrative tribunal can be evidenced by such factors as the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal, and the expertise of the tribunal. La Forest J. also took into account other practical considerations, though he noted that these considerations take second place to the intention of the legislator.15
La Forest J. concluded that the Commission did not have the jurisdiction to determine Charter issues. He held that it had not been the intention of Parliament to give that mandate to the Commission. This is evidenced by the fact that Parliament did not vest the Commission with an adjudicative role. Rather, the Commission's role is that of screening complaints and determine which ones warrant an inquiry. Thus, La Forest suggests that in order for a tribunal to have the power to determine questions of law, it should have an adjudicative role. He wrote at page 891:
The striking down of s. 15(c) by the Commission, which is what a referral to a tribunal in the present case would amount to, would be an assumption by the Commission of an adjudicative role for which it has no mandate. When Parliament has failed to vest an administrative body with such a jurisdiction (which is the case here), then it is not the role of a court to create such jurisdiction. Administrative bodies and tribunals are creatures of statute; the will of the legislature as it appears therein must be respected.
And again at page 893:
The role of the Commission as an administrative and screening body, with no appreciable and adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law. There is simply nothing in the Act indicating that the Commission has the mandate which the appellants and the Commission would wish it to have.
La Forest J. also found that the practical advantages in having the Commission consider the constitutionality of its own statute were limited. First, he noted that the Commission, since not an adjudicative body, did not have appropriate mechanisms to deal with multifaceted constitutional issues. For example, the Commission is not bound by traditional rules of evidence. This is inappropriate when determining the constitutional validity of a legislative provision, which requires suitable evidentiary safeguards. Second, he noted the Commission's lack of expertise in dealing with such constitutional matters.
I find it difficult to distinguish the circumstances in the case at bar from those in Cooper. As in the case of the Commission, the SIO does not have an adjudicative function. The scheme of the Act supports this finding. Subsection 45(1) of the Act requires that a SIO make a determination as to eligibility . The Act does not provide for any hearing or other procedure. Clearly, the legislator had in mind a simple administrative procedure where the SIO, after gathering the necessary information, would make a decision with respect to the eligibility of the refugee claimant. As stated by La Forest J. in Cooper, this is a clear indication of Parliament's intention of not conferring on the SIO subsection 52(1) jurisdiction.
Furthermore, the same practical considerations noted by La Forest J. in Cooper are also present in the case of the SIO. The SIO lacks any special expertise in dealing with questions of law.
The combination of all these considerations lead me to conclude that the SIO does not have the jurisdiction to decide questions of law. Given this finding and given the authorities, it follows that this Court also lacks jurisdiction on judicial review to consider the constitutional validity of section 46.4 of the Act. However, in case I have wrongly decided the issue, I find myself compelled (and for reasons of expediency) to consider the constitutionality of section 46.4.
2. SECTION 7 OF THE CHARTER
Counsel for the applicant did not argue that section 46.4 of the Act was invalid in its entirety. Rather, she argued that in so far as a refugee claimant has been declared to be a Convention refugee by the Refugee Division, it is a violation of his section 7 rights to life, liberty and security of the person, to void the Refugee Division's decision, revisit the initial eligibility decision and declare the claimant ineligible to make a claim. This is so because it exposes the claimant to return to the country where he was determined to have a well-founded fear of persecution. In a nutshell, counsel for the applicant submits that once a Convention refugee determination is made, a finding of misrepresentation and fraud cannot supplant it.
I do not share her view. Section 46.4 of the Act provides for the redetermination of eligibility by the SIO, in the event that a prior positive finding on eligibility was induced by fraud or misrepresentation. It allows the SIO to turn back the clock and revisit the initial eligibility determination. This does not amount to the return of a Convention refugee. In fact, the applicant is not a Convention refugee. Were it not for his fraud or misrepresentation, he would have been precluded from the refugee determination system and never considered a refugee for the purposes of the Act.
The respondent argues that to accept the applicant's argument would be tantamount to creating a distinction between refugee claimants whose fraud or misrepresentation was discovered before their claim was referred to the Refugee Division and who were precluded from the system, and those who managed to keep their fraud or misrepresentation from being discovered on time, thereby having their claim referred and then accepted by the Board. Put in this light, it is clear in my view that the applicant's argument is untenable. A distinction cannot be based on the stage at which the fraud or misrepresentation was discovered. Time is an irrelevant consideration. The fact is that the applicant obtained his referral based on a misrepresentation.
Therefore, the applicant cannot argue that he has acquired the rights of a Convention refugee. Any right that he might have had as a Convention refugee (such as the right to non-return) was obtained by way of fraud and therefore, he is not entitled to it.
Furthermore, section 46.4 is an eligibility provision. The Federal Court of Appeal has taken the position that eligibility screening has terminated the right of refugee claimants to claim protection under section 7. In Berrahma v. Minister of Employment and Immigration,16 the claimant was found to be ineligible to make a claim pursuant to paragraph 46.01(1)(c), which denies access to previously refused claimants who have been outside Canada for less than 90 days since their first claim was refused. The Federal Court of Appeal found that there was no right to make a refugee claim per se and that Parliament had the right to declare that certain persons were not eligible to make a refugee claim in Canada:
. . . the reason the Supreme Court concluded as it did in Singh is that, to give effect to its international obligations assumed earlier, Parliament had recognized and granted foreign nationals the right to claim refugee status . . . . That, I think is the difference between Singh and the case of an ineligible claimant: Singh was denied a status which the law gave him the right to claim without having any opportunity of showing that he met the conditions for obtaining it, whereas the ineligible claimant is not denied a status he is entitled to claim.17
The Federal Court of Appeal also upheld the constitutionality of eligibility criteria in Nguyen v. Canada (Minister of Employment and Immigration).18 In Nguyen, Marceau J.A. held that a decision made pursuant to subparagraph 46.02(1)(e)(ii) does not violate the Charter. Marceau J.A. stated:
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 . . . 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.19
Thus, no section 7 right is engaged by section 46.4 of the Immigration Act. I need not proceed any further with my analysis.
3. SECTION 12 OF THE CHARTER
With respect to the section 12 argument, counsel for the applicant argued that it would amount to a cruel and unusual treatment to return the applicant to a country where he faces a risk of persecution.
Section 12 involves a two-stage analysis.20 The first step is to determine whether the treatment at issue falls within the context of the system for the administration of justice. The second step is to determine whether the treatment is cruel and unusual in that it is so grossly disproportionate to the offence that it would outrage the standards of decency.
I fail to see how section 12 is offended by section 46.4 of the Act. In fact, it is my opinion that allowing the applicant to further use his misrepresentation to gain rights would outrage the standards of decency. A similar reasoning was given by Sopinka J. in Chiarelli v. Canada (Minister of Employment and Immigration),21 wherein he decided that the deportation of a permanent resident convicted of an offence did not offend the standards of decency:
The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately.22
A refugee claimant has an obligation to truthfully present the circumstances of his case to the SIO under subsection 45(5) [as am. by S.C. 1992, c. 49, s. 35] of the Immigration Act. To allow refugee claimants who misrepresent themselves or who attempt to fraudulently obtain the protection of the Canadian state to gain rights, would, in my opinion, outrage much more society's standards of decency.
Given the above conclusions, the application for judicial review is dismissed.
Counsel for the applicant asked that the following three questions be certified:
1. Whether the Trial Division, when hearing an application for judicial review under section 18.1 of the Federal Court Act, has the jurisdiction to decide a constitutional challenge to the validity of a section of the Immigration Act when that constitutional challenge was not raised in front of the Senior Immigration Officer?
2. Does the making of a decision under s. 46.4 of the Immigration Act, in the case of a person previously determined to be a Convention refugee, violate his or her rights to non-refoulement, to life, liberty and security of the person, and not to be subjected to any cruel and unusual punishment?
3. Is a person who was found to be a Convention refugee still a Convention refugee after a decision is made pursuant to s. 46.4(1) of the Immigration Act, notwithstanding the provisions of s. 46.4(2) of the Act?
In my view, the first question is worthy of certification for the following reasons.
Unless the case law is changed, the only avenue left for challenging the validity of section 46.4 of the Immigration Act would be for the applicant to bring an action in the Federal Court or a superior court.23
However, I am not convinced that proceeding by way of action does lead to a practical and harmonious result. The parties would be required to simultaneously start an action for declaration of constitutional invalidity in either the Federal Court or a provincial superior court, and a judicial review proceeding in the Federal Court, which would have to be stayed pending the outcome of the action (or, in the event the parties failed to do so, the Court would have to sever the proceeding into an action and a judicial review). This multiplicity of procedures seems quite impractical, costly and time consuming.
My colleague Rothstein J. expressed the same view in Chan v. Canada (Minister of Employment and Immigration):24
If respondent's counsel's position is correct, applicants seeking relief from decisions of immigration officers would be required to choose between different processes depending upon the grounds to be advanced by them. This could lead to two processes having to be instituted in a case such as the one at bar; an application for judicial review for some grounds and an action for a declaration for others. This multiplicity of procedures would apply only in certain circumstances, i.e. when the tribunal whose decision is being challenged did not have jurisdiction to decide a question of law. I see no useful purpose to such a multiplicity of procedures. On the contrary, the confusion and additional cost inherent in them are clear disadvantages. I do not think Parliament intended to complicate access to the Federal Court by creating an obscure requirement for the commencement of proceedings by way of action in cases such as the one at bar. It has not been demonstrated that the Court would be impeded from performing its functions or that any party would be prejudiced by there being only one process, that is judicial review, for seeking relief in this Court from decisions of immigration officers.25
Moreover, as noted by Desjardins J.A. in an article published in 1992,26 the judicial review proceeding might in fact be the appropriate way of dealing with situations similar to the circumstances in the case at bar and those in Tétreault-Gadoury: Tétreault-Gadoury was decided before the changes to sections 18 and 28 of the Federal Court Act.27 In the amendments, a basket clause was added in the form of paragraph 18.1(4)(f) [as enacted by S.C. 1990, c. 8, s. 4] to allow the Court to intervene where a tribunal has "acted in any other way that was contrary to the law".
She noted that this provision was added in order to allow the Court on judicial review to consider Charter issues where the tribunal whose decision is under review did not have the power to decide questions of law:
It has been suggested, moreover, that this final ground of review might permit the court to determine whether a given decision is contrary to the Charter, particularly where the tribunal is without jurisdiction to determine Charter questions. This possibility should be reflected upon in light of the Supreme Court of Canada decision in Tétreault-Gadoury v. Canada (Employment & Immigration Commission). In Tétreault-Gadoury, the Supreme Court held that where an administrative tribunal does not have jurisdiction to entertain a question of law, the Federal Court of Appeal is also without jurisdiction to decide the constitutional matter.
. . .
But, Tétreault-Gadoury, of course, was based on s. 28, as formerly known. Whether para. 18.1(4)(f) constitutes remedial legislation which will change the law as established by Tétreault-Gadoury is an open question. In the affirmative, fresh evidence on Charter issues should be tendered.28
As pointed out by Desjardins J.A., the introduction of fresh evidence on Charter issues should be allowed. One must remember that on judicial review only evidence that was before the decision-maker can be considered.29 This is an important consideration when dealing with a section 1 argument under the Charter.
Therefore, in light of the foregoing and considering of the importance of the issue, I will certify the question raised by the applicant for the Court of Appeal. I have, however, modified the question as follows:
Whether SIOs have the implied jurisdiction to decide questions of law? If not, whether the Trial Division, when hearing an application for judicial review under section 18.1 of the Federal Court Act, has the jurisdiction to decide a constitutional challenge to the validity of a section of the Immigration Act?
As for the remaining two questions, I see no reason for certification.
1 R.S.C., 1985, c. I-2 [as enacted by S.C. 1995, c. 15, s. 11].
2 Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
3 [1991] 2 S.C.R. 22.
4 S.C. 1970-71-72, c. 48.
5 Supra, note 3, at pp. 37-38.
6 (1988), 90 N.R. 39 (F.C.A.), at p. 42.
7 S.C. 1973-74, c. 44.
8 [1990] 3 S.C.R. 570.
9 [1991] 2 S.C.R. 5.
10 Supra, note 3.
11 [1996] 3 S.C.R. 854.
12 Lorne Waldman, Immigration Law and Practice, Vol. 1 (Toronto: Butterworths, 1992).
13 [1991] 3 F.C. 242 (C.A.).
14 Supra, note 12, at p. 9.19.2.
15 Supra, note 11, at pp. 888-889 and 893.
16 (1991), 132 N.R. 202 (F.C.A.).
17 Id., at pp. 212-213.
18 [1993] 1 F.C. 696 (C.A.).
19 Id., at p. 704.
20 ;Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
21 [1992] 1 S.C.R. 711.
22 Id., at p. 736.
23 Sivaraj v. Canada (Minister of Citizenship & Immigration) (1996), 107 F.T.R. 64 (F.C.T.D.); affd sub nom Nagarajah v. Canada (Minister of Citizenship and Immigration), A-42-96, Robertson J.A., judgment dated 23/5/96, not reported; sub nom. Gowrinathan v. Canada (Minister of Citizenship and Immigration), A-72-96, Robertson J.A., judgment dated 23/5/96, not reported; sub nom. Vilvaratnam v. Canada (Minister of Citizenship and Immigration), A-74-96, Robertson J.A., judgment dated 23/5/96, not reported.
24 [1994] 2 F.C. 612 (T.D.).
25 Id., at p. 623.
26 Alice Desjardins, "Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting" in Special Lectures of the Law Society of Upper Canada (Toronto: Carswell, 1992), at p. 405.
27 R.S.C., 1985, c. F-7.
28 Supra, note 26, at pp. 431-432.
29 ;Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.); Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139 (F.C.T.D.), at p. 143; Franz v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 79 (F.C.T.D.), at p. 80.