A-30-97
Philman Abu Raman (Appellant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Raman v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Linden, Robertson and McDonald JJ.A."Toronto, June 1 and 4, 1999.
Citizenship and Immigration " Exclusion and removal " Immigration inquiry process " Certified question: does SIO have jurisdiction to reopen hearing which resulted in removal order to allow person to make Convention refugee claim? " Doctrine of functus officio must be more flexible where no right of appeal " Where justice requires, administrative bodies should be able to reopen proceedings, but must be indications in enabling statute decision can be reopened " No such indication herein " Immigration Act, s. 44 stating refugee claims may not be determined if initiated after removal order made " Parliament thereby determining refugee claims must be initiated before removal order made " Refugee claims may not be heard in one specific circumstance: where refugee claim made after removal order " By referring to "appeal" from removal order in Immigration Act, s. 44(1), when no "appeal" actually exists, Parliament intending "appeal" to encompass judicial review " Judicial review appropriate process by which to contest removal order " Any common law right to reopen ousted by s. 44(1).
Constitutional law " Charter of Rights " Life, liberty and security " Upon arrival in Canada as visitor, appellant offered, declined to claim Convention refugee status, interpreter " Principles of fundamental justice mandate different procedures in different circumstances " Visitors have no right to enter into or remain in Canada " May be excluded with minimal procedural rights.
In denying an application for judicial review of a decision by a senior immigration officer (SIO), the Trial Division Judge certified the following question as one of general importance: (1) does an SIO have jurisdiction, either at common law or pursuant to Charter, section 7 and Constitution Act, 1982, subsection 52(1) to consider reopening a hearing which resulted in the issuance of a removal order in order for a person to claim protection as a Convention refugee?
During an interview with an immigration officer the appellant indicated that he was from Zimbabwe, although in fact he had come to Canada from Nigeria, and that he would remain in Canada for one week. In response to the immigration officer's questions, the appellant indicated that he did not wish to claim refugee status and that he did not require an interpreter. Upon being informed the following day that he was being excluded from Canada, the appellant advised the SIO that he wished to claim Convention refugee status. He was informed that he was unable to make such a claim at that time since a removal order had already been issued. An SIO subsequently formally advised the appellant that she had no jurisdiction to reopen the hearing, and the appellant was returned to Nigeria.
Held, the appeal should be dismissed.
The doctrine of functus officio must be more flexible where there is no right of appeal and, where justice requires, administrative bodies should be able to reopen proceedings. But there must be indications in the enabling statute that a decision can be reopened. There were no such indications herein; in fact there was a contrary indication: Immigration Act, subsection 44(1) states that refugee claims may not be determined if they are initiated after a removal order has been made against a person. Parliament thereby determined that refugee claims must be initiated before a removal order is made against a person. It specifically set out that refugee claims may not be heard in one circumstance i.e. where a refugee claim is made after a removal order.
Subsection 44(1) contemplates an "appeal" from a removal order, when in fact no "appeal" is actually available. Parliament must therefore have intended "appeal" to mean judicial review. The appropriate process by which to contest a removal order is to seek judicial review.
With regard to the common law, any right to reopen, which may have existed, was ousted by subsection 44(1).
The Charter did not require reopening the SIO's decision. The principles of fundamental justice mandate different procedures in different circumstances. A person with no status in Canada who declines both translation and the opportunity to make a refugee claim may be excluded with minimal procedural rights. Such a person is merely a visitor, and visitors have no right to enter into or remain in Canada. Fundamental justice was not denied.
| statutes and regulations judicially considered |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7. |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 44(1) (as am. by S.C. 1992, c. 49, s. 35), 80.1(1) (as enacted idem, s. 70), (2) (as enacted idem), (3) (as enacted idem), (4) (as enacted idem), (5) (as enacted idem). |
| Vienna Convention on the Law of Treaties, May 23, 1969, [1980] Can. T.S. No. 37. |
| cases judicially considered |
| applied: |
| Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277. |
| distinguished: |
| Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317; 10 Imm. L.R. (2d) 1; 104 N.R. 50 (C.A.); R. v. Monney, [1999] 1 S.C.R. 652. |
| referred to: |
| Canada (Attorney General) v. Symtron Systems Inc., [1999] 2 F.C. 514; (1999), 236 N.R. 143 (C.A.); Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 404; (1999), 157 F.T.R. 161 (C.A.); Bains v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 487; (1989), 61 D.L.R. (4th) 573; 47 C.R.R. 361; 8 Imm. L.R. (2d) 165 (C.A.). |
APPEAL from Raman v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 50; 37 Imm. L.R. (2d) 294 (F.C.T.D.), wherein the Trial Judge certified the question: whether a senior immigration officer has jurisdiction, either at common law, or pursuant to the Charter, section 7 and Constitution Act, 1982, subsection 52(1) to reopen a hearing which resulted in a removal order, in order to allow a person to claim Convention refugee status. Appeal dismissed, and the question was answered in the negative.
| appearances: |
| Barbara L. Jackman and Kevin J. MacTavish for appellant. |
| Lori Hendriks and Martin Anderson for respondent. |
| solicitors of record: |
| Jackman, Waldman & Associates, Toronto, for appellant. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for judgment rendered in English by
Linden J.A.: The certified questions in this case raise the issue of what jurisdiction a senior immigration officer has to reopen a hearing which resulted in the issuance of a removal order against a person who, having earlier declined the opportunity to claim refugee status, now wishes to claim protection as a Convention refugee.
The facts in this case are relatively simple to restate. The appellant came to Canada from Nigeria on June 12, 1995 and was examined by an immigration officer. During that interview the appellant informed the immigration officer that he was visiting Canada from Zimbabwe and would remain in Canada for one week. The appellant's answers to subsequent questions, as well as his plainly falsified Zimbabwean passport, caused the immigration officer to be suspicious of the appellant's story. The appellant was asked if he wished to claim refugee status, to which he replied "no". He was asked if he needed an interpreter, to which he replied "no". There is no indication that the officer asked the appellant if he wished to consult counsel.
On June 13, 1995, the appellant was brought before the senior immigration officer and was informed that he was being excluded from Canada. The file notes indicate that, at the point when the exclusion order was being drawn up, the senior immigration officer met with the appellant and advised him that he was being excluded from Canada. The appellant was advised of his rights under the Vienna Convention [Vienna Convention on the Law of Treaties, May 23, 1969, [1980] Can. T.S. No. 37]. At that time, the appellant stated his real name, that he had travelled to Canada on a false passport, that he was from Nigeria, and that he was a flight lieutenant in the Nigerian Air Force. He has since changed his story twice more in statements supporting his claim to Convention refugee status. When advised that he was being removed from Canada, the appellant advised the senior immigration officer that he wished to claim Convention refugee status. He was informed that, since a removal order had been drawn up, he would be unable to make such a claim at that time.
By letter dated June 26, 1995, appellant's counsel sought a reopening of the appellant's hearing before the senior immigration officer. Counsel indicated that the appellant had been misadvised regarding when to claim refugee status, and gave details of the appellant's refugee claim.
On June 30, 1995, a senior immigration officer advised the appellant that she had no jurisdiction to reopen the appellant's inquiry. We were told that the appellant was then returned to Nigeria, where he spent over one year, and that he is currently in Saint Lucia.
The appellant sought judicial review of the senior immigration officer's decision, which review was subsequently dismissed by the Trial Division of this Court.1 The Trial Judge certified three questions of general importance to this Court. These questions are as follows [at page 56]:
1. Does a senior immigration officer have jurisdiction, either at common law or pursuant to s. 7 of the Charter of Rights and Freedoms and section 52(1) of the Constitution Act, 1982, to consider reopening a hearing which resulted in the issuance of a removal order in order for a person to claim protection as a Convention refugee?
2. If a senior immigration officer does have jurisdiction to reopen is this jurisdiction limited to instances where there has been a breach of natural justice in respect of the original decision?
3. If it is so limited, was there a breach of natural justice or the principles of fundamental justice in the failure of the senior immigration officer to advise the applicant of a right to counsel prior to conclusion of the hearing before the senior immigration officer which resulted in the issuance of a removal order?
The appellant raised a fourth 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]] question regarding the constitutionality of subsection 44(1) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 35)] by way of a subsequent motion requesting permission to file a supplementary memorandum of argument, but the appellant's counsel chose not to argue that question before this Court.
I am of the view that the appeal must be dismissed.
As for the first question, the appellant's counsel rightly points out that the doctrine of functus officio must be more flexible where there is no right of appeal, and that, where justice requires, administrative bodies should be able to reopen proceedings. Indeed, this Court has recently restated and followed this principle.2 However, Justice Sopinka warned in Chandler v. Alberta Association of Architects, that there must be "indications in the enabling statute that a decision can be reopened."3 In this case there are no such indications; in fact there is a contrary indication. Subsection 44(1) of the Immigration Act, states that refugee claims may not be determined if they are initiated after a removal order has been made against a person. Subsection 44(1) reads as follows:
44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer.
The Trial Judge considered this section and reasoned that [at pages 55-56]:
In my view, s. 44(1) of the Act clearly precludes the SIO from reopening a decision to exclude. Once that decision is made a refugee may not seek a determination of a refugee claim unless an appeal from that order has been allowed. The decisions relied upon by the applicant are distinguishable in the sense that they were not made in the context of a SIO acting under s. 44(1) of the Act. [Emphasis added.]
I agree with this reasoning. Parliament has determined that refugee claims must be initiated before a removal order is made against a person. Parliament has specifically set out that refugee claims may not be heard in one circumstance, i.e., where a refugee claim is made after a removal order. Parliament's purpose in enacting this subsection was clearly to prevent people, after being excluded from Canada on the basis of an initial story, from changing their story to claim refugee status. If this Court were to allow removal orders to be reopened in order to permit consideration of these claims, then the subsection would be rendered marcescent.
I am also of the view that Parliament, in enacting subsection 44(1), contemplated judicial review of removal orders. It is noteworthy that subsection 44(1) of the Act contemplates an "appeal" from a removal order, when in fact no "appeal" is actually available. In my view, Parliament intended the word "appeal" used in subsection 44(1) to encompass judicial review. It follows from this that the appropriate process by which to contest a removal order is not to seek a reopening but to seek judicial review in the Trial Division of this Court.
I would briefly mention one of the arguments made by counsel for the appellant in favour of limiting subsection 44(1). Counsel argues, based on the language of subsection 44(1), that there is no "claim" for refugee status being made here, only an attempt to reopen a determination made by the senior immigration officer. I am not persuaded. As the certified question notes, the purpose for which a reopening is sought is to eventually allow the appellant to make a claim for Convention refugee status. In my view, subsection 44(1) is not open to the interpretation contended for by appellant's counsel.
The first certified question also asks whether the common law or the Charter gives jurisdiction to consider reopening the decision of the senior immigration officer. In my view, neither the common law nor the Charter assist the appellant. With regard to the common law, any right to reopen, which may have existed, was ousted by subsection 44(1) of the Act.
While the application of the Charter to a decision of the senior immigration officer is more complex, it is my view that the Charter does not require the reopening of this decision. The effect of the principles of the Charter on decision-makers varies according to the circumstances under which they arise. In this case, a non-citizen has presented himself for entry into Canada. He was offered, and has declined, translation. He was offered, and declined, the opportunity to make a Convention refugee claim. Fundamental justice cannot be said to have been denied in this situation.
Counsel for the appellant cites the Kaur4 case in support of an argument that section 7 of the Charter operates to allow the jurisdiction to reopen this decision. I do not think that Kaur, which deals with the powers of an immigration adjudicator, is applicable to this context. There are three reasons for this. First, immigration adjudicators have wide-ranging powers under the Act, which are not possessed by senior immigration officers, including "sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction" that arise in proceedings before them.5 In contrast, senior immigration officers have no jurisdiction to answer legal or constitutional questions6 and are expressly deprived by the Act of jurisdiction to reopen a decision to remove a person from Canada. In this case, the appellant seeks to have the senior immigration officer reconsider the decision on the ground that certain legal rights, such as the denial of natural justice, warrant vacating that decision in order to allow the appellant to make a claim for Convention refugee status. This is precisely the kind of legal consideration which is not open to the senior immigration officer. Rehearing and reconsideration by senior immigration officers may only be ordered by courts pursuant to judicial review. Second, both the majority and the concurring decisions in the Kaur case focus on the applicant's duress during the inquiry, in a context where there was a specific power to reopen. The record in this case shows no duress and no power to reopen on the part of Mr. Raman. Finally, the Court in Kaur held that the applicant was "effectively deprived of the ability to make a free, informed and independent decision respecting a claim to refugee status".7 In this case there is nothing on the record to show that the appellant was constrained from making a free and independent decision regarding a possible claim to refugee status. While it has been argued that the appellant was misinformed regarding the best time to make a refugee claim, I do not see how this can relieve him of his obligation to be truthful when presenting himself at our border for entry. A senior immigration officer is under no obligation to second-guess the representations of people who decline the opportunity to make a refugee claim.
As stated above, the demands of the principles of section 7 of the Charter under these circumstances are limited. Just how limited was elucidated by the Supreme Court in the recent case of R. v. Monney.8 In that case, the respondent Monney arrived at Pearson International Airport and presented himself to customs officials, who became suspicious of the respondent's story and detained him until he consented to give a urine sample, at which point it was revealed that he had ingested heroin which he was smuggling into Canada. The Supreme Court unanimously and unequivocally noted the lower standards of Charter scrutiny which exist in border examinations.9 Further, Iacobucci J. expressly rejected the argument that section 7 of the Charter was impugned in that case, despite the fact that Mr. Monney was in some medical danger (having ingested 84 pellets of heroin). He wrote that [at pages 685-686]:
The respondent contends that the actions of the customs officers placed his life at risk in a manner contrary to his guaranteed constitutional rights under s. 7 of the Charter by failing to ensure that his detention was conducted at all times under medical supervision. The Court held in Singh v. Minister of Employment and Immigration . . . that state action which has the likely effect of impairing a person's health engages the fundamental right under s. 7 to security of the person. What the respondent is seeking in this appeal, however, is to extend this constitutional guarantee to include an obligation by the state to provide medical supervision in response to the risk to the respondent's health which in these circumstances was self-induced, notwithstanding that the respondent himself refused the offer of medical attention.
As Weiler J.A. noted, although the respondent was deprived of his physical liberty during his period of detention, he was not deprived of the liberty to make his own decisions concerning his health, regardless of whether he made a decision which was contrary to his own best interests. The customs officers specifically inquired as to the respondent's well-being and made it clear to the respondent that unconditional medical assistance was available at any time. While it might have been preferable for the customs officers to have followed the official customs policy, as indicated in the testimony of the expert, they took reasonable steps to ensure the respondent's physical safety by monitoring his condition and specifically offering him access to medical care. Constitutional protection of life and security of the person pursuant to s. 7 of the Charter does not extend to providing access to medical supervision during a passive "bedpan vigil" over and above the rejection of medical attention by the suspect being detained. [Citation omitted, emphasis added.]
In the case at bar, the appellant was asked if he wished to make a claim for Convention refugee status, which opportunity he declined. If the refusal of medical attention is sufficient to relieve customs officials of the obligation to protect a person, then the conscious, voluntary refusal to make a Convention refugee claim must be sufficient to relieve the senior immigration officer of further constitutional duties. It is trite law that the principles of fundamental justice mandate different procedures in different circumstances. Where a person with no status in Canada declines both translation and the opportunity to make a refugee claim, they may be excluded with minimal procedural rights. Such a person is a mere visitor, and it is the fundamental principle of immigration law that visitors have no right to enter into or remain in Canada. Any person, who is not a citizen of Canada however, does have a right to make a claim for Convention refugee status. If a person properly makes such a claim at the appropriate time, the Charter offers significant procedural protections, but such a claim has not been made in this case.
I would, therefore, answer the first question in the negative. Because the first question is answered in the negative, there is no need to address the second and third certified questions. This appeal should be dismissed.
Robertson J.A.: I agree.
McDonald J.A.: I agree.
1 The Trial Division's reasons are reported at (1996), 125 F.T.R. 50 (F.C.T.D.).
2 Canada (Attorney General) v. Symtron Systems Inc., [1999] 2 F.C. 514 (C.A.), at paras. 56-58, pp. 536-537.
3 [1989] 2 S.C.R. 848, at p. 862.
4 ;Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (C.A.). See also Bains v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 487 (C.A.) I.A.B., time limit problem.
5 Immigration Act, R.S.C., 1985, c. I-2, s. 80.1(1) [as enacted by S.C. 1992, c. 49, s. 70]. See also ss. 80.1(2) [as enacted idem], 80.1(3) [as enacted idem], 80.1(4) [as enacted idem] and 80.1(5) [as enacted idem].
6 ;Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.).
7 Kaur, supra, note 4, at p. 218.
8 [1999] 1 S.C.R. 652.
9 Id., paras. 34, 36, and 38, pp. 673-675.