A-578-79
Kammy Boun-Leua (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie and Ryan ,JJ. and MacKay
D.J.—Toronto, March 13; Ottawa, June 17, 1980.
Judicial review — Immigration — Whether Minister's
determination that a claimant is a Convention refugee
automatically accords him a lawful status in Canada —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1), 4, 5,
27(1), 37(1), 45(1),(5), 47(1),(3), 72(2)(a),(6),(3) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The applicant's status as a visitor in Canada having expired,
an inquiry was held during which the applicant claimed that he
was a Convention refugee. Following compliance with section
45 of the Immigration Act, 1976, the inquiry was adjourned, an
examination held and a determination made by the Minister
that the applicant was a Convention refugee. The inquiry was
then resumed and the Adjudicator held that the applicant was
no longer lawfully in Canada and that, by virtue of section 4(2)
of the Act, he was not a Convention refugee who was entitled to
remain in Canada. This section 28 application seeks to have set
aside the departure notice issued against him as a result of
those findings. Applicant submits that to give any logical
meaning to section 4(2), it must be considered that the determi
nation by the Minister that a claimant is a Convention refugee
automatically accords him lawful status in Canada which
subsists so long as he does not fall within the exceptions
enumerated in section 4(2)(b).
Held, the application is dismissed. The Immigration Act,
1976, accords a particular status only to Canadian citizens,
immigrants and visitors. The only rights accorded to a Conven
tion refugee are first, not to be returned to a country where his
life or freedom would be threatened (section 55 of the Act)
and, second, to be able to appeal a removal order or a deporta
tion order made against him on a question of law or fact or of
mixed law and fact and on the ground that, having regard to
the existence of compassionate or humanitarian considerations,
he should not be removed from Canada (sections 72(2)(a),(b)
and 72(3) of the Act). In this case, the applicant as a refugee
admitted to France can return to that country. There is no
obligation on the Minister to permit him to remain in Canada
and the applicant has no legal right to do so.
APPLICATION for judicial review.
COUNSEL:
D. Greenbaum, Q.C. for applicant.
H. Erlichman for respondent.
SOLICITORS:
Moses, Spring, Greenbaum & Pang, Toronto,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside the departure notice made on
September 25, 1979 at Toronto by Adjudicator
Susan Comstock.
Briefly the relevant facts are these. The appli
cant who was born in Laos but who is apparently,
a stateless person, entered Canada as a visitor on
December, 4, 1978. He had travelled to Canada
from France where he had been accorded refugee
status and had resided. He was granted an exten
sion to his visitor's visa to enable him to remain in
Canada until January 3, 1979. On January 2,
1979, the applicant, accompanied by his lawyer,
attended before an immigration officer in Toronto
seeking status as a Convention refugee. He was
advised that it was possible to make such a claim
only while in a country other than Canada or
during an inquiry. As a result he did not then
pursue the matter further, but returned to the
Immigration Office on January 4, 1979 at which
time his visitor's status had expired as a result of
which a report was made to the Deputy Minister
of Employment and Immigration pursuant to sec
tion 27(2) of the Immigration Act, 1976, S.C.
1976-77, c. 52, and on January 9, 1979 the Deputy
Minister pursuant to section 27(3) of the Act
directed that an inquiry be held.
The inquiry was convened on January 25, 1979
at which the Adjudicator found that the applicant
who had entered Canada as a visitor, had
remained therein after he had ceased to be a
visitor. He had, however, during the inquiry, reit
erated his claim that he was a Convention refugee
as a result of which the Adjudicator did not make
a removal order or issue a departure notice, but
rather, pursuant to section 45(1)' of the Act,
adjourned the inquiry for an examination under
oath by a senior immigration officer.
Following compliance with the other subsections
of section 45, pursuant to section 45(5) 2 , the Min
ister, on June 21, 1979, informed the senior immi
gration officer and the applicant that he had deter
mined that the applicant was a Convention
refugee, a status defined by section 2(1) of the
Act. Thereafter, the adjourned inquiry was
resumed on September 11, 1979 as required by
section 47(1) 3 of the Act. Following the conclusion
thereof and after taking the matter under advise
ment, the Adjudicator held that having found in
the first stage of the inquiry that the applicant had
remained in Canada after he had ceased to be a
visitor, he was no longer lawfully in Canada. Thus,
by virtue of the requirements of section 4(2) of the
Act, he was not a Convention refugee who was
entitled to remain in Canada. Therefore, she
issued a departure notice to the applicant. It is this
notice that the applicant seeks to have set aside on
this section 28 application.
Section 4(2) reads as follows:
4....
(2) Subject to any other Act of Parliament, a Canadian
citizen, a permanent resident and a Convention refugee while
' 45. (1) Where, at any time during an inquiry, the person
who is the subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
2 45....
(5) When the Minister makes a determination with respect
to a person's claim that he is a Convention refugee, the
Minister shall thereupon in writing inform the senior immigra
tion officer who conducted the examination under oath respect
ing the claim and the person who claimed to be a Convention
refugee of his determination.
3 47. (1) Where a senior immigration officer is informed that
a person has been determined by the Minister or the Board to
be a Convention refugee, he shall cause the inquiry concerning
that person to be resumed by the adjudicator who was presiding
at the inquiry or by any other adjudicator, who shall determine
whether or not that person is a person described in subsection
4(2).
lawfully in Canada have a right to remain in Canada except
where
(a) in the case of a permanent resident, it is established that
that person is a person described in subsection 27(1); and
(b) in the case of a Convention refugee, it is established that
that person is a person described in paragraph 19(1)(c), (d),
(e), (f) or (g) or 27(1)(c) or (d) or 27(2)(c) or a person who
has been convicted of an offence under any Act of Parlia
ment for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed.
While counsel for the applicant advanced two
other contentions, essentially his principal submis
sion was that once the Minister accords a person
the "classification" of Convention refugee, a status
is accorded him which permits him to remain in
Canada lawfully for the purposes of section 4(2) of
the Act, provided he does not fall within any of the
enumerated paragraphs referred to in paragraph
(b) of that section. Since the applicant herein was
not a person falling within any of those classes of
persons, and since, by virtue of his having been
determined to be a Convention refugee by the
Minister, he was lawfully here and thus entitled to
remain here under section 47(3) 4 of the Act. In his
view, when the stage in an inquiry is reached
requiring an adjournment for the determination by
the Minister of whether or not the person subject
to the inquiry is a Convention refugee, every such
person is unlawfully in Canada by reason of the
fact that at that stage he must have been a person
who, but for his claim to be a refugee, would have
a removal order or a deportation order made or
issued against him (section 45(1)). That being so,
in his submission, paragraph (b) of section 4(2)
would be completely redundant.
Therefore, to give the section any logical mean
ing it was counsel's view that it must be considered
that when the Minister finds that a claimant is a
Convention refugee he automatically is accorded
lawful status in Canada which subsists so long as
he does not fall within the exceptions enumerated
in section 4(2)(b). The word "while" in the phrase
"while lawfully in Canada" is used, it was said, in
the sense of "so long as", so that if the refugee
does something during the duration of his Conven-
4 47....
(3) Where an adjudicator determines that a Convention
refugee is a Convention refugee described in subsection 4(2), he
shall, notwithstanding any other provision of this Act or the
regulations, allow that person to remain in Canada.
tion refugee status that brings him within the
enumerated exceptions set forth in paragraph (b),
he may lose the right to remain in Canada because
of it. Until he does though, his status as a Conven
tion refugee entitles him to remain here.
The argument has considerable force but foun
ders, I think, for the following reason. The Immi
gration Act, 1976 accords a particular status only
to Canadian citizens, immigrants and visitors. Sec
tion 4(1) gives to a Canadian citizen and to a
permanent resident who is not inadmissible by
virtue of section 27(1), the right to come into
Canada. As previously noted, section 4(2) entitles
those persons and Convention refugees, while law
fully in Canada, to remain in Canada. Section
4(3) provides that a registered Indian whether a
Canadian citizen or not, has the same rights and
obligations under the Act as a Canadian citizen.
According to section 5 5 no person other than
those described in section 4 has a right to come
into or to remain in Canada. Subsections (2) and
(3) of section 5 provide the basis for the landing
and entry of immigrants and visitors respectively.
They are the only non-Canadian citizens, other
than registered Indians, who are accorded a status
under the Act, i.e., a right to enter and remain in
Canada so long as they meet the requirements of
the Act and regulations. An immigrant by defini
tion is granted landing which means he is permit
ted to come into Canada to establish permanent
residence. A visitor, again by definition, is a person
granted entry into Canada for a temporary pur
pose and for a specified period of time.
A Convention refugee, on the other hand, is not
given the right to reside permanently in Canada
nor, by being designated such, is he given the right
5 5. (1) No person, other than a person described in section 4,
has a right to come into or remain in Canada.
(2) An immigrant shall be granted landing if he is not a
member of an inadmissible class and otherwise meets the
requirements of this Act and the regulations.
(3) A visitor may be granted entry and allowed to remain in
Canada during the period for which he was granted entry or for
which he is otherwise authorized to remain in Canada if he
meets the requirements of this Act and the regulations.
to remain in Canada for a specific period of time.
Presumably his right to remain is dependent upon
his continuing to be a refugee from the country of
his nationality. If for any reason, he no longer can
fulfil the requirements to be characterized as a
Convention refugee, he is subject to a removal or
deportation order. The duration of his stay, as a
Convention refugee, can only be fixed by a Minis
terial permit issued pursuant to section 37 of the
Act. If no such permit is issued then, if he is within
an inadmissible class, he may be the subject of a
removal or deportation order. The only rights
accorded to a Convention refugee are first, not to
be returned to a country where his life or freedom
would be threatened, a right granted by virtue of
section 55 of the Act, and, second, to be able to
appeal a removal order or a deportation order
made against him on a question of law or fact or of
mixed law and fact and "on the ground that,
having regard to the existence of compassionate or
humanitarian considerations" he should not be
removed from Canada (sections 72(2)(a) and (b)
and 72(3)).
From all of the above, I can only conclude that
the determination by the Minister that a person is
a Convention refugee does not, as urged by appli
cant's counsel, confer on that person a status of
some undefined nature. It gives him only the rights
to which I have previously alluded. In this case the
applicant as a refugee admitted to France can
return to France at least so long as his travel
permit, issued by that country to him, is valid.
France having found him to be a refugee, then
Canada as a signatory to the United Nations
Convention Relating to the Status of Refugees
would find it difficult to determine that he was not
a refugee. Whether or not such is the case is
immaterial in this case. Since he can return to
France, which is not the country of his nationality,
or where his life or freedom would be threatened,
there is no obligation on the Minister to permit
him to remain in Canada. The applicant has no
legal right to do so. In my view, therefore, appli
cant counsel's submission that the determination
by the Minister that his client was a Convention
refugee gave him the right to remain in Canada
must fail.
In view of this conclusion, it is unnecessary for
me to consider the second branch of the applicant's
argument relating to the question of whether or
not he is "lawfully in Canada" after the conclusion
of the first stage of the inquiry.
Accordingly, the section 28 application should
be dismissed.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.