Judgments

[1997] 3 F.C. 468

IMM-317-96

Fernando Arduengo Naredo and Nieves Del Carmen Salazar Arduengo (Applicants)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Arduengo v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Cullen J.—Toronto, January 22; Ottawa, May 29, 1997.

Citizenship and Immigration — Exclusion and removal — Judicial review of Immigration Expulsion Officer’s (IEO) decision to execute deportation orders by removal of applicants to Chile — Applicants unsuccessful Convention refugee claimants but in Canada for 20 years — While in Canada, implicating senior Chilean Police Force officials in human rights abuses — Fearing serious harm, death if returned to Chile — Execution of deportation orders stayed pending outcome of Immigration Act, s. 114(2) applications for landing on humanitarian, compassionate grounds.

Constitutional law — Charter of Rights — Life, liberty and security — Immigration Expulsion Officer making travel arrangements to remove applicants to Chile — Applicants unsuccessful refugee claimants but in Canada some 20 years — While in Canada, implicating senior Chilean Police Force officials in human rights abuses — Fearing serious harm, death if returned to Chile — Request for declaration Immigration Act, ss. 48, 52 unconstitutional not properly before Court as no notice of constitutional question — Removal provisions not violating principles of fundamental justice — Immigration Act, s. 114(2) application for landing on humanitarian, compassionate grounds according sufficient procedural safeguards to unsuccessful refugee claimants to satisfy principles of fundamental justice.

Constitutional law — Charter of Rights — Criminal process — Immigration Expulsion Officer making travel arrangements to remove applicants to Chile — While in Canada, applicants exposing human rights abuses of senior Chilean Police Force officials — Fearing serious harm, death if returned to Chile — Request for declaration Immigration Act, ss. 48, 52 unconstitutional not properly before Court as no notice of constitutional question — While Charter, s. 12 engaged in removal process, not violated where risk assessment conducted under provisions of Act, Regulations — No assessment of current risk herein — Inadmissible evidence on both sides of issue — Removal of applicants stayed until decision made on Immigration Act, s. 114(2) applications for landing on humanitarian, compassionate grounds.

Practice — Affidavits — Judicial review of immigration expulsion officer’s (IEO) decision to execute deportation orders by removal of applicants to Chile — Affidavits in application record as to: medical opinion regarding applicants’ children; human rights conditions in Chile; translation of news articles, inadmissible — Facts contained therein not before IEO — Court bound to record before tribunal — Although difficult to characterize IEO’s act as decision of tribunal, record of what was before IEO proper evidentiary basis on which to proceed.

Administrative law — Judicial review — Certiorari — Judicial review of immigration expulsion officer’s decision to execute deportation orders by removal of applicants to Chile — IEO’s decision administrative, not adjudicative — Not properly subject of review.

This was an application for judicial review of an immigration expulsion officer’s (IEO) decision wherein it was determined that the applicants’ deportation orders would be executed on February 13, 1996 by removal of the applicants to Chile. The applicants, citizens of Chile, were unsuccessful refugee claimants with a long history of residency in Canada. They had had approval in principle for landing, which was later revoked. They had also received approval for landing in Canada on humanitarian grounds, and subsequent Minister’s permits, which had not been renewed after 1988. The applicants were ordered deported in 1989. Judicial review of the deportation orders was dismissed in 1990 and the appeal therefrom was dismissed, almost five years later, in 1995. Leave to appeal to the Supreme Court of Canada was denied on January 11, 1996. The deportation order was stayed until final determination of this application for judicial review. The applicants were afraid to return to Chile because of their activities in Canada in exposing the human rights abuses by senior officials of the Chilean Police Force. They feared serious risk of harm, including a risk to their lives, from their former colleagues, and from friends of officials who had been so implicated.

The issues were: (1) whether affidavits contained in the applicants’ application record should be struck; (2) whether Charter, sections 7 or 12 are engaged when an IEO makes travel arrangements to remove a person to a particular country pursuant to a deportation order; and (3) whether there is an appropriate and just remedy available pursuant to Federal Court Act, section 44.

Held, the execution of the deportation orders should be stayed pending the outcome of applications for landing pursuant to Immigration Act, subsection 114(2).

(1) The affidavits, dealing with: medical opinion on applicants’ children; human rights conditions in Chile and a translation of new articles, were inadmissible. The facts contained therein were not before the IEO when she booked applicants’ flights to Chile. Generally, the Court is bound to the record filed before a federal board, commission or other tribunal. But an interview with an IEO was not even analogous to the type of hearing in respect of which the Court is strictly bound to the record on judicial review. The IEO’s administrative act of booking travel arrangements was in no way comparable to the expert, adjudicative function of the IRB. The interview with the IEO merely served an administrative function, in which the applicants were informed of the removal process, and in which travel arrangements were made. There was no adjudicative function. Although it was difficult to characterize the IEO’s act as the decision of a tribunal, the proper evidentiary basis on which to proceed was the record of what was before the tribunal, i.e. the IEO.

(2) The request for a declaration as to the unconstitutionality of Immigration Act, sections 48 and 52 because removal would infringe the applicants’ right under Charter, section 12 to be free from cruel and unusual treatment, was not properly before the Court as there had been no notice of a constitutional question.

While section 12 is engaged in the removal process, it is not violated in fact situations where a risk assessment has been conducted under the provisions of the Act or Regulations. There had, however, been no risk assessment in this case. New facts had arisen since 1994 which went to the issue of risk, and the applicants had not sought to have their refugee claims redetermined. Thus there was an issue of current risk, and a great deal of inadmissible evidence on both sides of the issue. It was not for the Court to determine country conditions necessary for such a risk assessment.

The impugned provisions did not violate the principles of fundamental justice. Further, the procedural safeguards accorded to unsuccessful refugee claimants through a subsection 114(2) application satisfy the principles of fundamental justice enshrined in section 7. But nothing in the Act or Regulations prohibits the deportation of an unsuccessful refugee claimant prior to the making of a decision on either of those types of applications.

A subsection 114(2) application for admission to Canada on humanitarian or compassionate grounds is the vehicle for the consideration of the applicants’ concerns regarding events that may have occurred that have changed their situation into one in which there is risk. The existence of this vehicle makes the process that the applicants have gone through comply with the principles of fundamental justice. If the applicants decline to use what is available to them, there is no denial of fundamental justice.

(3) The Court had jurisdiction to issue an order restraining the Minister from deporting the applicants pending the outcome of subsection 114(2) applications for landing on humanitarian or compassionate grounds, according to Federal Court Act, sections 18, 50 and 18.2.

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. 7, 12, 24(1).

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 18.2 (as enacted idem), 44, 50.

Federal Court Immigration Rules, 1993, SOR/93-22, Rule 17.

Federal Court Rules, C.R.C., c. 663, R. 1700.

Immigration Act, R.S.C., 1985, c. I-2, ss. 32.1(6)(c) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 12; S.C. 1992, c. 49, s. 23), 37 (as am. idem, s. 26), 48, 52 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73), 114(2) (as am. idem, s. 102).

Immigration Regulations, 1978, SOR/78-172.

CASES JUDICIALLY CONSIDERED

APPLIED:

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.); Sinnappu v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 791 (1997), 126 F.T.R. 29 (T.D.); 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.

DISTINGUISHED:

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), [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; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81.

CONSIDERED:

Rahi v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 212 (C.A.) (QL); Li v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 471 (T.D.) (QL); Owusu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1505 (T.D.) (QL); Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.) (QL); Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (1991), 15 Imm. L.R. (2d) 1; 135 N.R. 50 (C.A.); Rizzo v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 269 (F.C.T.D.); Gittens (In re), [1983] 1 F.C. 152 (1982), 137 D.L.R. (3d) 687; 68 C.C.C. (2d) 438; 1 C.R.R. 346 (T.D.).

REFERRED TO:

Naredo and Minister of Employment and Immigration, Re (1981), 130 D.L.R. (3d) 752; 40 N.R. 436 (F.C.A.); Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161; 11 Imm. L.R. (2d) 92 (F.C.T.D.); Naredo and Arduengo v. Minister of Employment and Immigration (1995), 184 N.R. 352 (F.C.A.); leave to appeal to S.C.C. refused [1996] 1 S.C.R. viii; Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49; 24 Imm. L.R. (2d) 95 (F.C.T.D.); Franz v. Minister of Employment and Immigration (1994), 80 F.T.R. 79 (F.C.T.D.); Shchelkanov v. Minister of Employment and Immigration (1994), 76 F.T.R. 151 (F.C.T.D.).

APPLICATION for judicial review of an immigration expulsion officer’s decision wherein it was determined to execute deportation orders by removal of the applicants to Chile. Execution of the deportation orders was stayed pending the outcome of applications for landing pursuant to Immigration Act, subsection 114(2).

COUNSEL:

Barbara L. Jackman for applicants.

Cheryl D. E. Mitchell for respondent.

SOLICITORS:

Jackman & Associates, Toronto, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Cullen J.: This is an application for judicial review, pursuant to section 82.1 of the Immigration Act [R.S.C., 1985, c. I-2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73)], of the decision of an immigration expulsion officer (hereinafter, the IEO), Ms. P. Davidson, communicated to the applicants on January 22, 1996, wherein the IEO determined that the applicants’ deportation orders were to be executed on February 13, 1996 by removal of the applicants to Chile, their country of nationality.

The applicants seek the following relief by way of this application:

(1) that this Court set aside the decision of the IEO;

(2) that this Court declare that sections 48 and 52 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42] of the Immigration Act, which provide the statutory foundation for the applicants’ removal to Chile, are of no force and effect under section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] in that such removal would constitute an infringement of the applicants’ right under section 12 of the 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]] to be free from cruel and unusual treatment given the present conditions in Chile; and

(3) that this Court enjoin the respondent pursuant to subsection 24(1) of the Charter against removing the applicants to Chile until such time as they no longer face a risk of cruel and unusual treatment in Chile.

THE FACTS

The applicants are citizens of Chile. They came to Canada on February 28, 1978, and have remained here since. They have two children, aged 18 and 16, who were born in Canada and are Canadian citizens.

The applicants claimed Convention refugee status upon their arrival in Canada. Their refugee claims were refused under the pre-1978 immigration policies, and then re-examined under the 1978 legislation. Their refugee claims were again refused on July 17, 1979. Their claims were redetermined by the Immigration Appeal Board, and again refused. The Federal Court of Appeal then returned their claims to the Immigration Appeal Board for reconsideration [Naredo and Minister of Employment and Immigration, Re (1981), 130 D.L.R. (3d) 752].

On June 22, 1982, the applicants withdrew their refugee claims from the Immigration Appeal Board as they had received approval in principle for landing in Canada under the pre-Chilean visa programme. The approval in principle for landing was revoked approximately one year later, and this decision was reviewed by the Minister of Immigration (hereinafter, the Minister). Over a year later, the Minister confirmed the revocation. On June 25, 1984, the Immigration Appeal Board allowed the claims to be reinstated for redetermination. The redetermination applications were refused in April 1985. The applicants then sought judicial review in the Federal Court of Appeal.

The applicants received approval for landing in Canada on humanitarian grounds in April 1986, and were issued Minister’s permits. The applicants withdrew their judicial review applications in September 1986, on the understanding that this was necessary to have their landing applications processed. On November 13, 1986, the processing of the applicants’ applications for landing was put on hold.

In December 1988, the Minister notified the applicants that their Minister’s permits, which had been renewed from time to time since 1986, would no longer be renewed, and that the applicants had to leave Canada by February 28, 1989. The applicants were ordered deported on March 28, 1989. The applicants sought judicial review of the deportation orders. The application for judicial review was dismissed by this Court in July of 1990 [Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37 F.T.R. 161 (F.C.T.D.)].

This decision was appealed to the Federal Court of Appeal [(1995), 184 N.R. 352], and the appeal was not heard until almost five years later. The appeal was dismissed on June 6, 1995, thereby upholding the legality of the deportation orders. Leave to appeal to the Supreme Court of Canada was dismissed on January 11, 1996 [[1996] 1 S.C.R. viii].

The applicants’ deportation order, which was to have been executed on February 13, 1996, was stayed by an order of this Court until such time as the final determination of this application for judicial review.

The applicants state that they are afraid to return to Chile, now, primarily because of their activities in Canada to aid in exposing the human rights abuses of the Chilean Police Force, DICAR (Direccion de Inteligencia de Carabineros). Before coming to Canada, the applicants were members of the security branch of DICAR. The female applicant resigned from her position in General Pinochet’s repressive military junta. The cross-examination of the female applicant’s affidavit, dated August 22, 1996, indicates that the male applicant was expelled from DICAR in 1977, for destroying records. In 1993 and 1994, the applicants met, in Canada, with officers of a special court unit of the Chilean police, and Chilean Interpol, to assist them with investigations of human rights abuses which occurred in Chile while the applicants were members of the DICAR. The applicants allege that they provided sworn declarations implicating senior officials of the Chilean police in human rights abuses, with the understanding that these declarations would be used in the prosecution of those officials. The applicants allege that their co-operation with the court unit has recently been publicized both in Canada and in Chile; the respondent denies this.

The applicants submit that they are viewed as traitors by the Chilean police. They believe that if they return to Chile to testify against superior officers, they will be killed. There is evidence that, although the government has changed in Chile, General Pinochet is still the head of the armed forces, and his officers continue to serve in the military and the police. Amnesty International reports indicate that the Chilean police force is the primary agency responsible for many of the instances of torture occurring in Chile today. The applicants fear a serious risk of harm, including a risk to their lives, from their former colleagues and the friends of the officers.

The Chilean court police have indicated that they would like the applicants to return to Chile to testify in person, and have promised the applicants police protection while they are testifying. The applicants are prepared to testify. However, as the police protection would continue for only a short time, the applicants fear for their safety should they have to remain in Chile for any extended period of time. The applicants submit that the RCMP had done an investigation on the applicants in 1986, and had concluded that, at that time, the applicants’ lives would be in danger in Chile. The respondent submits that there is no evidence to that effect.

The respondent submits some unsavoury details about the applicants’ activities while members of the DICAR. While it is true that the applicants were found not to be Convention refugees on several occasions, it should be borne in mind that neither were the applicants found to be war criminals. The applicants’ deportation orders were not issued due to any criminality, but because their Minister’s permits had expired, leaving them with no status in Canada.

I heard this matter in Toronto on January 22, 1997, and reserved my decision. On March 25, 1997, I issued directions to both counsel for submissions on section 44 of the Federal Court Act [R.S.C., 1985, c. F-7] and whether it would be in the interests of justice to suspend the execution of the deportation orders, pending the outcome of an application for landing pursuant to subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of the Immigration Act. This initiative coming from the Court was a result of reading section 44 and an appreciation that neither party had had an opportunity to comment on the possible application of that section to the case at bar.

Since the issuance of the deportation orders in 1989, the applicants have never submitted, to the knowledge of this Court, an application under subsection 114(2) of the Immigration Act to remain in Canada on humanitarian or compassionate grounds.

THE ISSUES

On an application for judicial review of this nature, the issue is always whether there was a reviewable error in terms of section 18.1 of the Federal Court Act [as enacted by S.C. 1990, c. 8, s. 5]. Did the IEO exceed her jurisdiction? Did she act perversely? Capriciously? Unreasonably? Err in law? To determine this issue, it is necessary to look at the following issues:

1. Are either the section 12 Charter right to be free from cruel and unusual treatment, or the section 7 Charter rights to life, liberty, and security of the person, engaged when an IEO makes travel arrangements to remove a person to a particular country pursuant to a deportation order?

2. Is there an appropriate and just remedy available in this case, pursuant to section 44 of the Federal Court Act?

3. Should the affidavit of Martha Lee, sworn February 21, 1996, the affidavit of Dr. Felix Yaroshevsky, sworn January 26, 1996, and the affidavit of Tamara Toledo, sworn August 3, 1996, said affidavits contained in the applicants’ application record, be struck?

DISCUSSION

I will deal with the last issue first. Dr. Yaroshevsky’s affidavit is in respect of his expert medical opinion regarding the applicants’ children. Ms. Lee’s affidavit is in respect of her documentary research regarding human rights conditions in Chile, and conditions relating particularly to the prosecution of officials of the Chilean government involved in human rights violations in Chile during the military regime of General Pinochet. Ms. Toledo’s affidavit contains a translation of news articles.

The respondent submits that the said affidavits are not properly before this Court in challenging an action taken by the IEO, because the facts contained in the affidavits were not submitted to the IEO when she booked the applicants’ flights to Chile on January 22, 1996. The respondent submits that, on a judicial review, this Court is bound by the record that was before the tribunal at the time of the decision. Therefore, the only proper evidence before this Court is the Rule 17 Federal Court Immigration Rules, 1993 [SOR/93-22] tribunal record. Therefore, the applicants are not entitled to rely upon the facts in the documentary evidence submitted by way of these affidavits.

The applicants submit that the said affidavits are properly before the Court because this is an application for declaratory relief.

Analysis

First of all, I will deal with the matter of Dr. Yaroshevsky’s affidavit concerning the applicants’ children. As the applicants’ children are not parties to the action via a Rule 1700 [of the Federal Court Rules, C.R.C., c. 663] litigation guardian, the psychiatric opinion in respect of them is inadmissible. The children’s concerns more properly would be raised within the framework of a subsection 114(2) humanitarian and compassionate application.

Regarding the remaining affidavits at issue, the case law is clear that the Court is bound to the record filed before a federal board, commission, or other tribunal.[1] In Rahi v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 212 (C.A.) (QL), MacGuigan J.A. dismissed an application for an extension of time to file a supplementary affidavit. Li v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 471 (T.D.) (QL), is a similar case. In Owusu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1505 (T.D.) (QL), Reed J. refused to consider new evidence that was not before the Immigration and Refugee Board (hereinafter, the IRB). Most significantly, Reed J. stated at paragraph 2:

With respect to the new evidence, I do not think it is open to me to consider it, nor do I think it is open to me to refer the application back for a rehearing so that the Board can consider it. The appropriate avenue is for it to be considered in the back-end humanitarian and compassionate review process. That is the safety valve for dealing with evidence of the type in issue.

In Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.) (QL), Nadon J. comments that the application to introduce into the record new evidence which was not before the Immigration and Refugee Board when it rendered its decision would have the effect of transforming the judicial review process into that of an appeal.

What I find problematic in this case is exactly which or which part of what decision is, or should be, the subject of review before this Court. It has already been decided, in case law, that the constitutionality of the issuance of a deportation order cannot be attacked, and that there is a possibility that the constitutionality of the execution of a deportation order may be attacked. However, who decides to execute the deportation order? Surely, it is not the IEO, who merely makes the travel arrangements for the execution of the said order. If it were really the IEO’s decision that should be attacked, then, there is no question that the above affidavits are inadmissible before this Court. I believe that the IEO’s decision (if it can even be called a “decision”) is not really the decision that should be under review here. However, this is the way the issue has been framed by counsel, and I will adjudicate upon it.

The applicants are challenging the IEO’s decision in response to the Nguyen [Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.)] and Barrera [Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (C.A.)] decisions (discussed later), which indicate that the issue of risk faced in a country of deportation coupled with the application of sections 7 and 12 of the Charter cannot be raised until the point that a decision to remove a person to a particular country is actually made; that is, until the removal arrangements are made. This strategy is the entrance way that technically allows for the constitutional challenge. However, I do not believe that the IEO’s decision is the proper one to be challenged in this regard, because it is merely an administrative decision.

I do not believe that this type of interview with an IEO is even analogous to the type of hearing in which this Court is strictly bound to the record on judicial review. The IEO’s administrative act of booking travel arrangements in the present case is in no way comparable to the expert, adjudicative function of the IRB. The interview with the IEO merely served an administrative function, in which the applicants were informed of the removal process, and in which travel arrangements were made. This, clearly, is not an adjudicative decision.

The relief requested by the applicants is declaratory relief. This declaratory relief is in respect of the decision of the “tribunal” IEO. Although I have trouble characterizing the IEO’s act as the decision of a tribunal, the proper evidentiary basis to proceed on is, nevertheless, the record of what was before the tribunal i.e., the IEO. If this Court were to hear additional evidence that was not before the IEO, that would have the effect of transforming the judicial review process into that of an appeal. Therefore, not only are the above affidavits submitted on behalf of the applicants inadmissible, but so too, is the affidavit of Janice Rodgers concerning country conditions in Chile, submitted on behalf of the respondent, inadmissible.

Having disposed of preliminary evidentiary matters, I can now move on to the more substantive issues of this case. This requires, first, a brief examination of the legislative scheme governing the applicants’ circumstances in Canada.

Legislative scheme: who has the right to enter and remain in Canada?

In the recent decision Sinnappu v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 791 (T.D.) (hereinafter Sinnappu), McGillis J. succinctly outlined the legislation that is applicable in a case such as the one before this Court. There is no need to recapitulate McGillis J.’s summary, save for a few points for the sake of clarity.

Paragraph 32.1(6)(c) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 12; S.C. 1992, c. 49, s. 23] of the Act provides that any conditional removal order, which may have been issued to permit the refugee claimant to remain in Canada pending the determination of the claim, becomes effective when the claimant “is determined by the Refugee Division not to be a Convention refugee and has been so notified.” It is at that point that the unsuccessful refugee claimant no longer has a right to remain in Canada, and is subject to deportation under the terms of the removal order. However, section 37 [as am. idem, s. 26] gives the Minister discretionary power to authorize a person to come into or remain in Canada who would not, under other provisions of the Act, normally be allowed to do so. The applicants received “Minister’s permits” pursuant to this section.

As McGillis J. outlined, in addition to a PDRCC class application,[2] an unsuccessful refugee claimant may make an application for permanent residence under the humanitarian or compassionate grounds in subsection 114(2) of the Act. An application for humanitarian or compassionate relief from the requirement to apply for permanent residence from abroad may be made at any time and may be supported by any documentation or written submissions, which may be submitted at any time prior to the making of the decision.

A subsection 114(2) application is most relevant to the present case. Guidelines issued by the Department of Immigration (known as “IE 9”) to immigration officers indicate that humanitarian or compassionate grounds exist when “unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration” upon departure from Canada.[3] The guidelines provide examples of situations which may justify humanitarian or compassionate relief, including the existence of severe sanctions or inhumane treatment in a person’s country of origin. In that regard, section 9.07, subsection (4) of the guidelines state as follows:

4) Severe Sanctions or Inhumane Treatment in Country of Origin

a) Positive consideration may be warranted where there exists a special situation in the person’s home country, and undue hardship would likely result from removal. Such persons might face severe government sanctions on returning home because of things they have said or done while in Canada, e.g. while in Canada, a visitor has made public condemnatory comments on the policies of his/her government or has publicly embarrassed a repressive government. Examples include members of official delegations, athletic teams or cultural groups who may have spoken out against their government or whose attempt to remain in Canada could in itself result in official sanctions upon return home.

b) Others may warrant consideration because of their personal circumstances in relation to current laws and practices in their country of origin. Such persons could reasonably expect unduly harsh treatment in their country should they be removed. In these cases there should be strong reasons to believe that the person will face a life threatening situation in his or her homeland as a direct result of the political or social situation in that country. Such situations are more likely to occur in countries with repressive governments or those experiencing civil strife or at war.

c) Persons described above will, in most cases, have indicated an intention to claim refugee status and a review of their situation will occur in the context of the refugee claim procedures….

d) Officers will consider the facts of the case and recommend what they believe is reasonable in the particular situation. The onus is on applicants to satisfy the officer that a) a particular situation exists in their country and that, b) their personal circumstances in relation to that situation make them worthy of positive discretion.

In the event that a person makes a subsection 114(2) application based on a risk of severe sanctions or inhumane treatment, the immigration officer reviewing the file may consider, as a factor to be assessed, a negative decision in a refugee claim.

Under normal circumstances, the filing of a subsection 114(2) application does not delay the removal process, due to the lack of discipline in the application process.[4]

A person may challenge a negative decision from a subsection 114(2) application in the Federal Court.

Pursuant to section 48 of the Act, a removal order shall be executed as soon as reasonably practicable. Removal officers, who arrange for the execution of the removal order, merely make the necessary arrangements for the removal of the person. They do not assess country conditions to determine whether the person may be at risk in the country to which he/she is to be removed.

Issue 1: Section 12 of the Charter and deportation orders

The applicants are not challenging the validity of the deportation order. Rather, they come to this Court submitting that, even though the deportation order is valid, removal under the order to Chile would put them at risk of cruel and unusual treatment.

Does section 12 of the Charter have application in this case?

Deportation, per se, is not a punishment.[5] In Gittens (In re)[6] (hereinafter Gittens) at page 161, Mahoney J., speaking for this Court, stated:

Execution of any deportation order must invariably, to some degree, disrupt the deportee’s life and change his prospects. The disruption may be extreme, involving separation from family and friends and expulsion, alone and friendless, to an entirely unfamiliar social, economic and political milieu. It may also merely entail a return to the totally unfamiliar. The incidents of deportation, whatever their degree, do not render it cruel and unusual treatment of an adult.

As the norm, execution of a deportation order is not, in the abstract, cruel and unusual treatment.

Therefore, we already know that section 12 of the Charter is not breached by deportation per se.

However, we are not dealing here with deportation in the abstract.

The subsequent decisions in Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.) (hereinafter Nguyen) and Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (C.A.) (hereinafter Barrera) distinguish between the execution of a deportation order and the fact of a deportation order itself. In Barrera, MacGuigan J.A., writing for the Court, observed that measuring the effect of the deportation for gross disproportionality may be “a balancing requirement”. However, MacGuigan J.A. did not decide the question of the constitutional standard applicable to “cruel and unusual treatment.” In the same vein, the obiter of Marceau J.A. in Nguyen [at pages 708-709] concerning the execution of a deportation order is as follows:

We have been dealing here: first, with the issuance of a deportation order, not its actual execution to a precise country …. It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of section 12 of the Charter, or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter. There are means to enjoin the Minister not to commit an act in violation of the Charter.

According to this obiter, the execution of a deportation order in the individual circumstances of the person to be deported may result in cruel and unusual treatment. However, the situation of the applicant in Nguyen, which gave rise to this obiter, is different from the case at bar in one significant respect. The applicant, in Nguyen had been denied access to the refugee determination system, while the applicants here have had several hearings. Also, in Nguyen, Marceau J.A., required actual evidence that “torture and possibly death will be inflicted” if Mr. Nguyen was returned to his country of nationality. In the present case, no such evidence relating to current country conditions is properly before this Court.

In support of the position that deportation to a particular country engages section 12, the applicants cite the obiter of Mahoney J.A. in the Federal Court of Appeal decision of Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 at page 608. Here, Mahoney J.A. commented that, “It would be a grave, and I hope justiciable, matter indeed if Canada were to execute deportation orders in circumstances which breached obligations under international law, and put the life, liberty or security of persons in peril.” However, these comments were not determinative of an issue in that particular appeal.

I believe that the most relevant discussion applicable to the facts of this case is that forwarded by McGillis J. in Sinnappu regarding the importance of a risk assessment before deportation. McGillis J. found that, although the applicants would be deported to a state engaged in ongoing civil war, Charter rights had not been violated because there had been a risk assessment through the PDRCC class process. What I draw from the Sinnappu decision is that while section 12 of the Charter is engaged in the removal process, it is not violated in fact scenarios where a risk assessment has been conducted under the provisions of the Act or Regulations [Immigration Regulations, 1978, SOR/78-172].

McGillis J. went on to conclude at page 832 that, given the legislative safeguards and protection afforded to an unsuccessful refugee claimant, deportation would offend neither the “standards of decency” test in Chiarelli nor the “gross disproportionality” test suggested in Barrera. In this respect concerning the present applicants’ section 12 rights, I agree, and apply McGillis J.’s reasoning. However, this does not get us around the issue of a risk assessment, which is absent in this particular case.

There is an issue of current risk, and a lot of inadmissible evidence on both sides of this issue. However, is it even the place of this Court to determine country conditions, necessary for such a risk assessment? I think not.

At pages 832-833 of Sinnappu, McGillis J. found that, as the issue of risk had not been properly evaluated, it was possible that the applicants’ section 12 rights may be engaged through deportation to Sri Lanka. McGillis J. enjoined the Minister not to remove the applicants before a decision is made on their pending subsection 114(2) applications. I believe that the same result would be the just result in the unusual circumstances of the case at bar.

Issue 2: Section 7 and deportation orders

In my section 7 analysis of the issues, I again will draw heavily from McGillis J.’s section 7 analysis in Sinnappu. Although McGillis J.’s decision in that case was in respect of the appeal of a PDRCC class decision, the analysis concerning the Charter rights of unsuccessful refugee claimants applies equally here.

Section 7 of the Charter provides as follows:

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.

In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, Sopinka J. outlined, at page 584, the following approach to assess an alleged violation of the section 7 Charter rights of an individual to life, liberty and security of the person:

Section 7 involves two stages of analysis. The first is as to the values at stake with respect to the individual. The second is concerned with possible limitations of those values when considered in conformity with fundamental justice.

There is no unqualified right for non-citizens to enter or remain in Canada.[7] In Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 (hereinafter Kindler), the Supreme Court held that the extradition of an individual, even if the individual were to face the death penalty, did not infringe either sections 7 or 12 of the Charter. La Forest J., for the majority, held that the Government had the right and duty to keep out and to expel aliens from this country if it considered it advisable to do so. However, the Kindler case is distinguishable from the case at bar because it was recognized that the appellant, in Kindler, had gone through due process in relation to the imposition of the death penalty. The applicants at bar are not claiming that they will face trial and the possible imposition of the death penalty after a full and fair trial. They claim that they face the risk of extra-judicial killing by former colleagues from the police.

The threshold question to be determined in the first stage of the section 7 analysis is whether the IEO’s arrangements for the execution of the deportation order to a particular country engages section 7 life, liberty or security of the person interests. If the answer in the first stage is in the positive, the second stage of the section 7 analysis requires an examination of whether the execution of the deportation order would constitute a deprivation of their right to life, liberty or security of the person, that is not in accordance with fundamental justice. However, at this point, I must stop the analysis and refer back to my determination in the previous section concerning the necessity of a risk assessment in this case. I cannot completely answer this issue until there is a decision on a subsection 114(2) application.

It was entirely open to Parliament to enact the removal provisions in the Act as they now stand. There are adequate safeguards. The applicants have availed themselves of many. Under the current legislation regarding removal, the applicants have had at least fifteen opportunities to have their case heard. In the circumstances, I cannot accept the proposition that the impugned provisions violate the principles of fundamental justice.

Further, I believe that the procedural safeguards accorded to unsuccessful refugee claimants such as the applicants through a subsection 114(2) application are enough to satisfy the principles of fundamental justice enshrined in section 7 of the Charter.[8] But, nothing in the Act or the Regulations prohibits the deportation of an unsuccessful refugee claimant prior to the making of a decision on either of those types of applications.

The applicants at bar are the subjects of a deportation order because their legal status in Canada has expired. In terms of the process of implementing the deportation order, the applicants come before this Court after a long litigation history and numerous applications to various tribunals. The legality of the removal decisions made against the applicants have all been upheld. The applicants have had the opportunity to be heard on numerous occasions. Contrary to the fact situation in Chiarelli, the applicants have had aggravating or mitigation circumstances reviewed through a succession of ministers. I fail to see at which point the applicants were denied fundamental justice.

Where, exactly, in the decision-making process is the breach of fundamental justice (if there is one) located? Where have the applicants been denied fundamental justice? The applicants submit that the constitutional breach has occurred because there is no statutory or administrative process whereby the human rights of the person may be balanced against state interests in respect of the execution of a removal order to a particular country. The alternative argument is that the principles of fundamental justice may only be complied with by a consideration by this Court of the circumstances of the applicants balanced against state interests in the context of consideration for declaratory relief.

A vehicle exists for the consideration of the applicant’s concerns regarding events that may have occurred that have changed their situation into one in which there is risk. The vehicle is a subsection 114(2) application for admission to Canada on humanitarian or compassionate grounds. The existence of this vehicle makes the process that the applicants have gone through comply with the principles of fundamental justice. This Court cannot force the applicants to make use of this vehicle. If the applicants decline to use what is available to them, there is no denial of fundamental justice.

The Federal Court Act: Remedies available

According to Gittens (In Re), [1983] 1 F.C. 152 (T.D.), this Court has jurisdiction under section 18 [as am. by S.C. 1990, c. 8, s. 4] to issue an injunction restraining a minister or a federal board from executing their statutory duties in a manner that is illegal or ultra vires. Section 50 of the Federal Court Act allows this Court, in its discretion, to stay proceedings in any cause or matter where for any other reason it is in the interest of justice that the proceedings be stayed. Any stay ordered under this section may subsequently be lifted in the discretion of this Court. Section 18.2 [as enacted idem, s. 5] allows this Court, on an application for judicial review, to make such interim orders as it considers appropriate pending the final disposition of the application. According to the above sections, I believe that this Court has jurisdiction to issue an order restraining the Minister from deporting the applicants pending the outcome of subsection 114(2) applications for landing on humanitarian or compassionate grounds. The facts peculiar to this case, and the implication in Sinnappu that a risk assessment should be done before deporting failed refugee claimants in order to determine whether deportation may violate their Charter rights, cry out for such an outcome.

CONCLUSION

By way of judicial review, the applicants, who are unsuccessful refugee claimants with a long history of residency in Canada, have challenged the constitutional validity of removal orders requiring their deportation to Chile.

A technical problem with this case is the decision being challenged, that being a decision primarily administrative in nature. However, there are numerous substantive grounds upon which I can resolve this case, thus overcoming this shortcoming.

The applicants state that they are afraid to return to Chile because they face a risk of extra-judicial killing or torture. However, they have already had their claims to refugee status rejected. New facts seem to have arisen since 1994 which go to the issue of risk, but the applicants have not sought to have their refugee claim redetermined. As counsel for the applicants has stated, it would be pointless for the applicants to try to re-open their refugee claims (yet again) over twenty years after their claims were made, to try to establish that they still fit within the definition of a Convention refugee. I certainly agree that the issues have gone beyond that in relation to the position the applicants are in now. Considering the length of time that has elapsed since the original claims to refugee status, a re-opening of their refugee claims may not be the most appropriate route to dispose of this case, anyway.

The applicants have pointed out a potential deficiency in the removal process. This deficiency is constitutionally relevant if the applicants can establish, on the facts, that they face a risk of harm if deported to Chile, such harm as would be an affront to Canadian standards of decency. The Federal Court of Appeal decision in Nguyen opens a door to such a conclusion, and the Federal Court, Trial Division’s decision in Sinnappu further paves the way. However, such a conclusion is not obligatory.

The applicants ask for a finding as to the unconstitutionality of sections 48 and 52 of the Act. In the absence of notice of a constitutional question, this request is not properly before this Court.

In any event, there is no room for a Charter determination by this Court in the way that the applicants have presented their case. There is, however, authority for the discretionary remedy of an order prohibiting the deportation of the applicants pending the outcome of a subsection 114(2) application in which the applicants’ Charter rights, amongst other factors, will be determined. Counsel for the applicants submits that the evidence shows that, in the applicants’ 19 years of residence in Canada, they have become well established and have led exemplary lives, and are raising their children well. These are factors that are relevant to a subsection 114(2) application for admission to Canada on humanitarian or compassionate grounds, but not to this application for judicial review. There is a process available to the applicants in which their concerns would be most properly addressed.

It must be remembered that this couple has been in Canada for almost 20 years, and has never been in trouble with the law here. The suggestion here is that the applicants have helped the police forces both here and in Chile. They have been able to secure Minister’s permits in Canada, and have twice been approved in principle for landing in Canada. These are indications leaning in favour of them. In addition, the extent of the extraordinary waiting period of time for a decision of the Federal Court of Appeal must be taken into account.

The real issue here is whether this couple should be permitted to stay in Canada on humanitarian or compassionate grounds, pursuant to subsection 114(2) of the Act. Justice can only be served by staying the pending deportation orders, to permit a subsection 114(2) application. Failing to make this application within 45 days, this stay shall be removed.

If the applicants make subsection 114(2) applications within 45 days of this order—and I would strongly encourage them to do so—then, the stay of the deportation orders shall continue until the processing of the applications is complete. I would suggest, in the event that such an application is made, that the applicants file all of their background data, including the IEO’s decision. When there is a decision on the subsection 114(2) applications, this Court can render its final decision regarding the Charter issue in the current section 18 application for judicial review. If the applicants are already landed as immigrants at that point in time, then the issues in this case will be moot. On the other hand, if it is determined that there are insufficient humanitarian or compassionate grounds for landing the applicants, having given due regard to the question of risk, then this stay will be dissolved and the applicants will be deported from Canada because there will be no question as to the breach of any Charter rights.

The applicants, who have no right to remain in Canada, have an obligation to pursue actively and aggressively all legislative avenues available to them in an attempt to obtain status in this country.

An order will go that the execution of the deportation orders against the applicants be stayed for 45 days to allow the applicants to submit subsection 114(2) applications. If no such applications are submitted in 45 days, then this stay is removed. If the applications are submitted in the time frame indicated, then this stay will continue until a decision has been reached on those applications, at which point this Court will render its final decision in this matter, should it be required.

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