T-364-85
Paul Tonato (Petitioner)
v.
Minister of Employment and Immigration
(Respondent)
Trial Division, Walsh J.—Montreal, June 10 and
17, 1985.
Immigration — Application for order quashing deportation
order — Petitioner entering Canada under Ministerial permit
and claiming Convention-refugee status — Claim refused —
Petitioner not having hearing — S. 45(1) of Immigration Act,
1976, providing hearing procedure only if claim made "at any
time during inquiry" — Ss. 70 and following referring back to
s. 45 — Petitioner subject to discrimination as not having right
to request redetermination of claim, unlike visitors or immi
grants — Singh et al. v. Minister of Employment and Immi
gration, [1985] / S.C.R. 177 holding part of s. 71(1) inopera
tive as inconsistent with holding of oral hearing, and
incompatible with s. 2(e) of Canadian Bill of Rights and s. 7 of
Charter — Words `pursuant to s. 45(5)" in s. 70(1) and
"referred to in s. 45(l)" in s. 70(2) inoperative as discriminat
ing against persons not having right to inquiry and for whom
inquiry not ordered — Petitioner to be examined by senior
immigration officer — Deportation order suspended until final
determination of claim for Convention-refugee status —
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 37(4),(5),(6),
45(l),(5), 70(1),(2), 71(l) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, /982, c. 11 (U.K.), ss. 7, 12, 14 —
Canadian Bill of Rights, R.S.C. /970, Appendix III, s. 2(e) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. /8, 28.
Constitutional law — Charter of Rights — Life, liberty and
security — Fundamental justice — Petitioner contending
deportatiôn pursuant to s. 36(7) of Immigration Act, 1976
violating ss. 7 and 12 of Charter — Petitioner entering Canada
under Ministerial permit and claiming Convention-refugee
status — Minister refusing claim — Petitioner not having
right of appeal to Immigration Appeal Board pursuant to s.
70(1) of Immigration Act, /976 which refers back to s. 45(5).
as claim not made at hearing — Singh et al. v. Minister of
Employment and Immigration, [1985] l S.C.R. 177 applied —
Distinction between privileges and rights not acceptable in
relation to Charter — Charter applying to entitle persons with
well-founded fear of persecution to fundamental justice, given
potential consequences of denial of Convention-refugee status
— Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), ss. 7, 12.
Constitutional law — Charter of Rights — Enforcement —
Remedial powers — Court of competent jurisdiction —
Application to quash deportation order under Federal Court
Act, s. 18 — Decision to cancel Ministerial permit administra
tive — Federal Court, Trial Division "court of competent
jurisdiction" within s. 24 of Charter — Singh et al. v. Minister
of Employment and Immigration, 119851 1 S.C.R. 177 applied
— Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 24 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 18, 28.
The petitioner is seeking an order, pursuant to section 18 of
the Federal Court Act, quashing a deportation order or an
order for prohibition or injunction preventing deportation of the
petitioner until he has had a hearing. The petitioner argues that
his deportation pursuant to subsection 37(6) of the Immigra
tion Act, 1976 violates sections 7 and 12 of the Charter as well
as the audi alteram partem rule. The petitioner was admitted
to Canada by a Ministerial permit. Subsequently, he was given
notice that his permit would not be renewed and that he should
leave Canada. The petitioner has never had an immigration
hearing, but claimed Convention-refugee status in a sworn
statement. The Minister refused his claim. He was advised that,
as his claim was not presented at a hearing, he could not ask
the Immigration Appeal Board to examine it. Subsection 45(1)
provides that a person shall be examined under oath by a senior
immigration officer in respect of a claim to be a Convention
refugee made during an inquiry. Subsection 70(1) provides for
a redetermination by the Immigration Appeal Board following
the refusal by the Minister of a claim for Convention-refugee
status of which the applicant has been informed pursuant to
subsection 45(5). Subsection 71(1) provides that if the Board is
of the opinion that there are reasonable grounds to believe that
a claim could be established, it shall allow the application to
proceed. The Supreme Court of Canada, in Singh et al. v.
Minister of Employment and Immigration, [1985] 1 S.C.R.
177, decided that subsection 71(1) of the Act is inconsistent
with the holding of an oral hearing and incompatible with
paragraph 2(e) of the Canadian Bill of Rights and section 7 of
the Charter. All of subsection 71(1) following the words
"Where the Board receives an application referred to in subsec
tion 70(2), it shall forthwith consider the application ..." was
held to be inoperative.
Held, (1) The words "pursuant to subsection 45(5)" in
subsection 70(1) of the Immigration Act, 1976 and "referred to
in subsection 45(1)" in subsection 70(2) are inoperative. (2)
The petitioner shall be examined under oath by a senior
immigration officer respecting his claim for Convention-refugee
status. (3) The deportation order shall be suspended until final
determination of his renewed claim for Convention-refugee
status.
The decision to cancel the Ministerial permit is an adminis
trative one, not one required to be made on a judicial or
quasi-judicial basis, although required to be made fairly: Min
ister of Manpower and Immigration v. Hardayal, [1978] 1
S.C.R. 470. However, the recent Singh case (supra) seems to
invalidate the statement in Hardayal that Parliament cannot
have intended that the exercise of the power be subject to a
right of a fair hearing. The finding in Vincent v. Minister of
Employment and Immigration, judgment dated June 27, 1983,
Federal Court, Appeal Division, A-144-83, not yet reported, is
also questionable as a result of the Singh case. Cases such as
Arumugam v. Min. of Employment & Immigration (1985), 11
Admin. L.R. 228 (F.C.T.D.), Milius v. Minister of Employ
ment and Immigration (1985), 55 N.R. 389 (F.C.A.) and
Brempong v. Minister of Employment and Immigration,
[1981] I F.C. 211 (C.A.) have held that a claim for certiorari
concerning the merits of the application is precluded by the
alternative remedy provided in the Act, that of an appeal to the
Immigration Appeal Board. In this case, no right of appeal to
the Board exists. Subsection 45(I) provides a procedure when a
person claims to be a Convention refugee "at any time during
an inquiry". The redetermination and appeals procedure in
sections 70 and following refer back to section 45. The Act does
not provide for a hearing for someone coming into Canada,
neither as a visitor nor as an immigrant, but by Ministerial
permit, the renewal of which can be refused at any given time
by an administrative act of the Minister.
The respondent submits that although the petitioner has not
had a hearing, nor does he have a right of appeal under the Act,
the Court cannot alter the law so as to give him rights which
the Act does not give him. In the Singh case, Wilson J.
expressed doubt as to a distinction between privileges and rights
which had narrowed the scope of the Canadian Bill of Rights.
She held that this analysis was not acceptable in relation to the
Charter. In her opinion, given the potential consequences for
the appellants of a denial of Convention-refugee status if they
are in fact persons with a "well-founded fear of persecution",
the Charter should apply to entitle them to fundamental jus
tice. However, the remedial power under subsection 24(I) of
the Charter is restricted to "a court of competent jurisdiction".
In the Singh case the Court of Appeal did not have jurisdiction
to review Ministerial determinations made pursuant to section
45 because they were "administrative" decisions. Section 28 of
the Federal Court Act gives the Federal Court of Appeal
supervisory powers only over decisions made on a "judicial or
quasi-judicial basis". Wilson J. commented that "If the appeals
originated as petitions for certiorari brought in the Trial Divi
sion of the Federal Court pursuant to s. 18 of the Federal
Court Act, the Ministerial decisions made pursuant to s. 45 of
the Immigration Act, 1976 would be subject to review."
The Act is unfair, but the Court cannot amend it. However,
in light of the Supreme Court having held part of subsection
71(1) to be inoperative in Singh, it is open to the Federal
Court, Trial Division on a section 18 application to find that
certain words in subsections 70(1) and (2) are inoperative
since, by their references to section 45, they restrict appeals to
the Immigration Appeal Board from a Ministerial decision
based on a claim for Convention-refugee status, to claims made
during the course of an inquiry, thereby creating discrimination
against persons for whom an inquiry has not been ordered and
cannot be demanded. Such a discrimination is contrary to the
principles set out in Singh. This remedy may be ordered
pursuant to subsection 24(1) of the Charter.
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
DISTINGUISHED:
Arumugam v. Min. of Employment & Immigration
(1985), 11 Admin. L.R. 228 (F.C.T.D.); Milius v. Minis
ter of Employment and Immigration (1985), 55 N.R.
389 (F.C.A.); Brempong v. Minister of Employment and
Immigration, [1981] 1 F.C. 211 (C.A.).
CONSIDERED:
Minister of Manpower and Immigration v. Hardayal,
[1978] I S.C.R. 470; Vincent v. Minister of Employment
and Immigration, judgment dated June 27, 1983, Federal
Court, Appeal Division, A-144-83, not yet reported;
Singh v. Minister of Employment and Immigration,
[1984] 2 F.C. 68 (C.A.).
COUNSEL:
Melvin Weigel for petitioner.
Suzanne Marcoux-Paquette-for respondent.
SOLICITORS:
Weigel, Duong & Kliger, Westmount,
Quebec, for petitioner.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
WALSH J.: The petitioner seeks an interlocutory
injunction and what he refers to as a declaratory
judgment against a decision rendered on Septem-
ber 12, 1984 ordering his deportation pursuant to
subsection 37(6) of the Immigration Act, 1976
[S.C. 1976-77, c. 52] which he contends violates
sections 7 and 12 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] and fails to respect the audi
alteram partem rule. The petition was drawn in
great haste as the petitioner was being held at the
Immigration Offices on the afternoon of February
19, 1985 and was unable to communicate with his
attorney until February 20, and the attorney was
informed on the morning of February 21 that the
petitioner would be deported on February 22. This
no doubt accounts for ambiguous drafting of the
petitioner's conclusions which ask that the authori
ties of the Ministry be prohibited from deporting
the petitioner until they have proceeded with an
immigration hearing and the petitioner has been
able to exercise the recourses provided in sections
45 and 70 of the Immigration Act, 1976 and also
that the deportation order of September 12, 1984
be declared to be null and without effect.
The petitioner's counsel argued that he concedes
that a declaratory judgment cannot be rendered on
a simple petition but what was really sought was
that the order of September 12, 1984 should be
quashed, or a finding in the nature of a prohibition
or injunction be made that the petitioner be not
deported until he has had a hearing. By an earlier
decision of Mr. Justice Pinard granted by consent
the respondent has agreed to suspend the deporta
tion until a final judgment on this petition.
The matter is far from simple and I believe the
petitioner's situation should be dealt with on its
merits rather than as a result of any defects in
procedure, since on the one hand we have the
provisions of the Immigration Act, 1976 which
have been strictly complied with and on the other
hand the recent judgment of the Supreme Court of
Canada in the case of Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R.
177, which, while not directly in point certainly
indicates that a person seeking Convention-
refugee status is entitled to a hearing, including
the opportunity to be advised of and to deal with
the evidence against him before his refugee claim
is finally decided.
The facts as revealed by the affidavits and
annexed exhibits submitted in evidence are as
follows.
The applicant was born on January 28, 1956 at
Grand Popo, Benin, West Africa. He is a citizen of
that country nor does he claim to have resident
status anywhere else. He came to Canada on June
27, 1982 as a participant in a youth exchange
programme sponsored by a non-government organ
ization known as "Frontier Foundation" and
worked as a volunteer for it in native rural com
munities in Alberta. He was admitted by a Minis
terial permit pursuant to section 37 of the Act.
This was renewed on September 2, 1982 until
March 2, 1983. On February 23, 1984, nearly a
year later, he was given a notice by the Minister
advising him that his permit would not be renewed
and that he should leave Canada before March 8,
1984.
On October 3, 1983 he had given an address to
the Immigration Appeal Board stating that he
resided at 8645 Pie IX Boulevard, Apt. 37 in
Montreal. On January 7, 1985 he phoned the Jean
Talon office of immigration in Montreal to give an
address change, stating that henceforth he would
be at 2673 Coleraine, Montreal. His record was
then transferred to the Dorchester Street Office.
Between October 3, 1983 and January 7, 1985 he
had not advised of any other change of address.
On October 22, 1984 a letter from the Commis
sion sent to his last known address was returned as
unclaimed so accordingly a search was made for
him. On November 7, 1984 an arrest warrant was
issued. Both this arrest warrant and deportation
order were brought to his attention when he came
to the Immigration Office on February 19, 1985
accompanied by Roger Forget a Franciscan Broth
er seeking a work permit. He stated that he had
been} living at 2673 Coleraine in Montreal for
three` months but had left his address at 8645 Pie
IX Boulevard for more than a year and in-between
had resided at St. François du Lac on a farm. He
also stated that he had a brother living in Canada
since November 28, 1949 whose telephone number
he gave to the immigration officer. He was there
upon arrested.
Most of this is admitted by the petitioner. His
affidavit also states that he is afraid to return to
Benin because of persecution due to his political
opinions and belonging to a social group. He has
never had an immigration hearing but claimed
refugee status in a sworn statement dated January
17, 1983. This was refused by the Minister on
advice of the Refugee Status Advisory Committee
on June 22, 1983. The letter states [TRANSLATED]
"Information which you have provided does not
establish that you have reason to fear persecution.
You state that the people in the south of your
country are victims of discrimination and that for
example they do not have access to higher educa
tion. Nevertheless you have not been prevented
from doing your studies and nothing indicates in
your claim that you have suffered the discrimina
tion of which you speak in general terms. Certain
parts of your declaration are contradictory and
further weaken the basis of your claim. You state
that military service is obligatory in Benin, but you
say that you entered the army voluntarily. You
state that you were enlisted at the age of 25 years
but since according to your statement you entered
the army in 1978 you would have been a soldier
for three years before you attained the age of 25
which raises some doubt as to the accuracy of your
statements." The letter goes on to say [TRANS-
LATED] "As your claim for refugee status was not
presented at a hearing held pursuant to the Immi
gration Act you cannot ask the Immigration
Appeal Board to examine it. However if you
become subject to an inquiry by virtue of the
Immigration Act 1976 you will be able to submit a
new claim for refugee status pursuant to subsec
tion 45(1) of the Act although permit me to
remark that the Minister cannot discuss precise
details of your actual claim."
As a result of this the petitioner states that since
March 8, 1984 he had been waiting to be called
before an immigration inquiry at which he could
again claim the status of refugee and that his
claim could eventually be reviewed by the Immi
gration Appeal Board pursuant to section 70 of the
law. When he went back to the Jean Talon office it
was to advise them that he was still in the country.
He states that on November 30, 1984 and Janu-
ary 3, 1985 he went to the offices of the Ministry
of Cultural Affairs and Immigration of Quebec to
ask for a certificate of selection from Quebec
based on his ties to Quebec and his fear of return
ing to Benin. He has a brother in Montreal mar
ried to a Canadian. He complains that the decision
of September 12, 1984 ordering his deportation
was made in his absence and that he was never
given a copy of it until it was given to his attorney
on the morning of February 21, 1985, which is in
conflict with the affidavit of the immigration offi
cer who says it was called to his attention at the
meeting of February 19, 1985, but nothing turns
on this. He states that he has now been informed
by the immigration officer that there will be no
revision of his detention or any immigration inqui
ry in his case. He had no idea until he was arrested
that he had been ordered to be deported from
Canada. The deportation order was properly made
pursuant to subsection 37(6) of the Act which
reads as follows:
37....
(6) Where a person who has been directed by the Minister to
leave Canada within a specified period of time fails to do so,
the Minister may make a deportation order against that person.
The same applies to the cancellation of the permit.
Subsections (4) and (5) of section 37 read as
follows:
37.
(4) The Minister may at any time, in writing, extend or
cancel a permit.
(5) The Minister may, upon the cancellation or expiration of
a permit, make a removal order against the person to whom the
permit was issued or direct that person to leave Canada within
a specified period of time.
The decision is an administrative one, not one
required to be made on a judicial or quasi-judicial
basis although it must of course be made fairly. In
the case of Minister of Manpower and Immigra
tion v. Hardayal, [1978] 1 S.C.R. 470, at page
477 Spence J. states:
Certainly the decision of the Minister to cancel the permit is
an order "of an administrative nature".
While this decision was under the provisions of the
former Immigration Act [R.S.C. 1970, c. I-2] and
before the Canadian Charter of Rights and Free
doms, his comments on pages 478-479 of the
judgment that a Ministerial permit is something to
be used in exceptional circumstances and chiefly
for humanitarian purposes in order to give flexibil
ity to the administration of the immigration policy
would still appear to be valid. The recent Singh
case however would now appear to invalidate the
statement made at pages 478-479 to the effect that
"I cannot conclude that Parliament intended that
the exercise of the power be subject to any such
right of a fair hearing as was advanced by the
respondent in this case". At page 479 the judg
ment goes on to suggest that the failure of a
Minister to act fairly however in exercising his
administrative power might give rise to a right to
the person affected to take proceedings under
paragraph 18(a) of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10], but the decision is not
subject to review under section 28.
Subsection 45(1) of the Act reads as follows:
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.
Other subsections provide for examination under
oath which is forwarded to the Refugee Status
Advisory Committee which advises the Minister.
Subsection (5) reads as follows:
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.
Subsection 70(1) reads:
70. (I) A person who claims to be a Convention refugee and
has been informed in writing by the Minister pursuant to
subsection 45(5) that he is not a Convention refugee may,
within such period of time as is prescribed, make an application
to the Board for a redetermination of his claim that he is a
Convention refugee.
and subsection 71(1) reads:
71. (1) Where the Board receives an application referred to
in subsection 70(2), it shall forthwith consider the application
and if, on the basis of such consideration, it is of the opinion
that there are reasonable grounds to believe that a claim could,
upon the hearing of the application, be established, it shall
allow the application to proceed, and in any other case it shall
refuse to allow the application to proceed and shall thereupon
determine that the person is not a Convention refugee.
The Singh case decided that subsection 71(1) of
the Act is inconsistent with the holding of an oral
hearing and accordingly incompatible with para
graph 2(e) of the Canadian Bill of Rights [R.S.C.
1970, Appendix III] and section 7 of the Canadian
Charter of Rights and Freedoms. The Court held
inoperative all the wording of subsection 71(1)
following the words "Where the Board receives an
application referred to in subsection 70(2), it shall
forthwith consider the application ..."
The finding in the Federal Court of Appeal case
of Vincent v. Minister of Employment and Immi
gration, Court No. A-144-83 a judgment of June
27, 1983' can also now be subject to question as a
result of the Harbhajan Singh case. It differs on
its facts from the present case in that up to the
time the Minister made the deportation order the
appellant had given no indication that she wished
or intended to apply for refugee status, unlike the
present case where such indication had been given
and dealt with by the Minister on advice of the
Refugee Status Advisory Committee. At page 2 of
the judgment Mr. Justice Ryan states:
In making the deportation order, the Minister was perform
ing an administrative act. He was under no duty to act judicial
ly or quasi-judicially. He was, of course, bound to act fairly.
At pages 5-6 he states:
It is true that the making of the deportation order had the
effect of cutting the appellant off from the possibility, since she
was out of status, of being proceeded against under section 27
of the Immigration Act, 1976. If she had been proceeded
against under that section and an inquiry had been ordered, she
' I am advised that this case is under appeal.
would have had the opportunity of claiming refugee status as
do all others who are proceeded against under section 27 and
wish to make such a claim.
It remains, however, that the right to claim Convention-
refugee status and to have the claim determined by the Minis
ter is limited by the Immigration Act, 1976 to a claim which is
made during an inquiry. This limitation is imposed as part of a
legislative scheme established by Parliament acting within its
legislative competence. In my view, section 2 of the Canadian
Bill of Rights does not, in the circumstances of this case,
require us to construe and apply subsection 37(6) of the
Immigration Act, 1976 so as to hold that the Minister was not
authorized by the subsection to make the deportation order he
made against the appellant; or to construe section 50 of the Act
as not being applicable to execution of the order.
In the recent case of Arumugam v. Min. of
Employment & Immigration (1985), 11 Admin.
L.R. 228 (F.C.T.D.), a few days after the Singh
judgment, but written before it had been called to
my attention, I rejected a writ of certiorari quash
ing determinations by the respondent that the
applicant was not a Convention refugee, and the
examination under oath held in his case and that
of another T-325-85, Balakumar Canagaratnam
heard at the same time. I also rejected a writ of
mandamus requiring the respondent to again
determine the applicants' claims to be refugees in
accordance with section 45 of the Act. The appli
cants were complaining about the manner in which
the officer examining the applicants pursuant to
subsection 45(1) of the Act conducted it. Refer
ence was made in this decision to the judgment of
Mr. Justice Marceau in the case of Milius v.
Minister of Employment and Immigration (1985),
55 N.R. 389 (F.C.A.) where he said at page 393:
... the scheme of the Act with respect to a refugee status claim
appears to me to preclude the possibility for a claimant to
resort to certiorari proceedings for reason of inaccuracies in his
examination under oath, because it itself provides for an alter
native remedy which was devised in part to cover precisely the
case. In the declaration under oath that he is required to file
when he applies under section 70 of the Act for a redetermina-
tion of his claim by the Immigration Appeal Board, an appli
cant has all the opportunities he may wish to have to rectify,
complete, or otherwise explain the answers he actually gave or
appears to have given during his previous examination by the
Senior Immigration Officer.
Reference was also made to the Court of Appeal
case of Brempong v. Minister of Employment and
Immigration, [1981] 1 F.C. 211 dealing with a
section 28 application to review and set aside a
determination by the Minister that the applicant
was not a Convention refugee. At page 218 the
judgment rendered by Mr. Justice Urie reads:
My view in this regard is reinforced by the fact that sections
70 and 71 of the Immigration Act, 1976, provide for a dissatis
fied claimant for refugee status, the right to apply to the
Immigration Appeal Board for a redetermination of his claim.
The application to the Board must be accompanied by a
declaration, under oath, in which the applicant is required to
set forth in reasonable detail the facts, information and evi
dence upon which he intends to rely. Thus, it may supplement
the evidence adduced in the examination before the senior
immigration officer. It is in the nature of a "hearing" de novo.
This Court has held that the redetermination is amenable to
section 28 relief in appropriate cases because it must be made
on a quasi-judicial basis. The claimant's rights will not finally
be determined until all remedies available to him have been
exhausted. The applicant herein recognizes that fact in that, as
already pointed out, he has already applied to the Immigration
Appeal Board for a redetermination with all the rights accruing
therefrom, including the right to apply to this Court under
section 28 of the Federal Court Act for appropriate relief.
In the case of Daljit Singh [Singh v. Minister of
Employment and Immigration, [ 1984] 2 F.C. 68
(C.A.)] at page 80 Mr. Justice Heald stated:
There may well be cases where the non-compliance with sub
section 45(6) would be so "fundamentally erroneous" as to
require that the Minister's determination be treated as a nulli
ty. Whether a fundamental error of such magnitude is present
in a particular case must be left to the particular tribunal
concerned with the facts of that case.
In the Arumugam case I adopted the statement
of Mr. Justice Marceau in the Milius case (supra)
stating that although the common law right to
certiorari might not be entirely excluded as a
result of the redetermination procedure available
before the Immigration Appeal Board it is one
which should not be used when this other and
better procedure is available and has in fact been
initiated, as it had been in that case.
In concluding I stated at page 244:
The proper forum in which to go into the merits of the
application is by way of a request for a redetermination of the
Minister's decision by the Immigration Appeal Board as pro
vided for in s. 70(1) of the Act. Subsection (2) of said s. 70
which provides the application for redetermination should con
tain "a summary in reasonable detail of the information and
evidence intended to be offered at the hearing". New evidence
can therefore be presented in the application for redetermina-
tion and after the decision of the Immigration Appeal Board, if
the application is allowed a further appeal can then be made to
the Federal Court of Appeal on any question of law. The Court
was informed that in these two cases s. 70 applications have
been made for redetermination of the applicants' refugee
claims. It would appear to be only in a rare and very exception
al case of an obvious failure to apply provisions of the law that
the Trial Division should interfer [sic] by way of writ of
certiorari quashing a determination by the respondent that an
applicant is not a Convention refugee or issue a mandamus
requiring respondent to again determine an applicant's claim.
What applicants are seeking to do is to by-pass the normal
appeal procedure and seek an immediate determination of the
issue by s. 18 proceedings.
In that case the petitioner had a right of appeal
to the Immigration Appeal Board which had
already been initiated, whereas in the present case
no such right of appeal exists. Provided that leave
to appeal was granted pursuant to subsection
71(1), it would not therefore conflict with the
recent Supreme Court judgment in the Harbhajan
Singh case. The problem in the present case arises
from the wording of subsection 45(1) of the Act
(supra) which deals with procedure when a person
claims that he is a Convention refugee "at any
time during an inquiry" and the redetermination
and appeals procedure in sections 70 and following
refers back to section 45. The Act does not appear
to provide any protection by way of a hearing for
someone coming to Canada neither as a visitor nor
as an immigrant, who is admitted by Ministerial
permit, the renewal of which can be refused at any
given time by an administrative act of the Minis
ter. It has been the practice apparently, as counsel
agree, to permit such a person while legally in the
country by virtue of a Minister's permit to apply
for Convention-refugee status which is then con
sidered by the Refugee Status Advisory Commit
tee, which in this case was done apparently on the
basis of a sworn statement, and on June 22, 1983
the Minister's decision from which there is no
appeal, refused to grant this status. Although the
Ministerial permit to remain in Canada had
expired on March 2, 1983 it was not until Febru-
ary 23, 1984 that action was taken directing him
to leave the country by March 8.
The respondent submits that although the peti
tioner may never have had a hearing nor has he a
right of appeal under the Act the Court cannot
alter the law so as to give him rights which the Act
does not give him. There is nothing in the Act
which gives the petitioner the choice of proceeding
by way of an immigration inquiry when entering
the country by virtue of a Ministerial permit under
section 37, so by proceeding this way the Minister
did not deprive him of any right. At pages 208 and
following of the judgment of Madam Justice
Wilson in the Harbhajan Singh case (supra) some
doubt is expressed as to a distinction between
privileges and rights which had narrowed the scope
of the application of the Canadian Bill of Rights.
She said this analysis is not acceptable in relation
to the Charter. At page 210 the judgment points
out:
... if the appellants had been found to be Convention refugees
as defined in s. 2(1) of the Immigration Act, 1976 they would
have been entitled as a matter of law to the incidents of that
status provided for in the Act. Given the potential consequences
for the appellants of a denial of that status if they are in fact
persons with a "well-founded fear of persecution", it seems to
me unthinkable that the Charter would not apply to entitle
them to fundamental justice in the adjudication of their status.
At pages 221-222 the judgment reads:
The significance of the limitation of the Court's judicial
review power under s. 28 of the Federal Court Act is apparent
from the decision of Urie J. in Brempong v. Minister of
Employment and Immigration, supra. In that case, Urie J.
observed that s. 28 provided the Federal Court of Appeal with
supervisory powers only over decisions made on a "judicial or
quasi-judicial basis" and that accordingly the Court had no
jurisdiction to review what he characterized as an "administra-
tive" decision by the Minister under s. 45 of the Immigration
Act, 1976. The Board is a quasi-judicial body and without
doubt its determinations are subject to review under s. 28. The
question the Court faces, as I see it, is whether the broader
remedial power which it possesses under s. 24(1) of the Charter
entitles it to extend its review of possible violations of the
Charter to the Ministerial determinations made pursuant to s.
45 of the Immigration Act, 1976. In my view it does not.
At page 222 the judgment reads:
Section 24(1) of the Charter provides remedial powers to "a
court of competent jurisdiction". As I understand this phrase, it
premises the existence of jurisdiction from a source external to
the Charter itself. This Court certainly has jurisdiction to
review the decisions of the Immigration Appeal Board in these
cases pursuant to s. 28 of the Federal Court Act. If the appeals
originated as petitions for certiorari brought in the Trial Divi
sion of the Federal Court pursuant to s. 18 of the Federal
Court Act, the Ministerial decisions made pursuant to s. 45 of
the Immigration Act, 1976 would be subject to review. In my
view, however, any violations of the Charter which arose out of
Ministerial decisions under s. 45 are not subject to review on
these appeals because of the judicial limitations on the Federal
Court of Appeal under s. 28 of the Federal Court Act. I would
accordingly make no observations with respect to them or with
respect to the question of whether or to what extent s. 45 of the
Immigration Act, 1976 is of no force and effect as a result of
any inconsistency with the Charter.
In the present case it was the Ministerial decisions
which the petitioner seeks to have quashed pursu
ant to section 18 of the Federal Court Act.
The judgment of Mr. Justice Beetz in the Singh
case reads at page 229:
What the appellants are mainly justified of complaining
about in my view is that their claims to refugee status have
been finally denied without their having been afforded a full
oral hearing at a single stage of the proceedings before any of
the bodies or officials empowered to adjudicate upon their
claim on the merits. They have actually been heard by the one
official who has nothing to say in the matter, a senior immigra
tion officer. But they have been heard neither by the Refugee
Status Advisory Committee, who could advise the Minister,
neither by the Minister, who had the power to decide and who
dismissed their claim, nor by the Immigration Appeal Board
which did not allow their application to proceed and which
determined, finally, that they are not Convention refugees.
I do not wish to suggest that the principles of fundamental
justice will impose an oral hearing in all cases.
At page 231 he agrees with appellants' submission
as follows:
The Appellants submit that although "fundamental jus
tice" will not require an oral hearing in every case, where life
or liberty may depend on findings of fact and credibility, and
it may in these cases, the opportunity to make written
submissions, even if coupled with an opportunity to reply in
writing to allegations of fact and law against interest, would
be insufficient.
There is no doubt that the Immigration Act, 1976
is unfair in not giving any recourse by way of
appeal to an applicant for Convention-refugee
status who applies for the same other than during
the course of an inquiry, being at the time legally
in the country by virtue of a Ministerial permit
pursuant to section 37 of the Act. The petitioner's
objective could be attained by replacing subsection
45(1) of the Act by something to the effect that
any person claiming to be a Convention refugee
shall be examined under oath by a senior immigra
tion officer respecting his claim. This would be an
amendment to the Act however which the Court
cannot order.
A somewhat similar result could be accom
plished by amending subsection 70(1) of the Act
by omitting the words "pursuant to subsection
45(5)" and similarly in subsection (2) by omitting
the words "referred to in subsection 45(1)". This
would also appear to be a matter for Parliament
and not for the Court.
Nevertheless the Supreme Court in the Singh
judgment has declared part of the subsection 71(1)
of the Immigration Act, 1976 inoperative as being
inconsistent with the principles of fundamental
justice set out in section 7 of the Canadian Charter
of Rights and Freedoms (three Justices, Madam
Justice Wilson, Chief Justice Dickson and Justice
Lamer) or as being in conflict with paragraph 2(e)
of the Canadian Bill of Rights) (three Justices,
Justice Beetz, Estey and McIntyre) in that the
portion of subsection 71(1) providing a discretion
as to whether an applicant's appeal shall be
allowed to proceed before the Immigration Appeal
Board is inconsistent with a fair hearing in accord
ance with the principles of fundamental justice. It
would appear open to this Court therefore on a
section 18 application to find that the words in
subsection (1) of section 70 "pursuant to subsec
tion 45(5)" and in subsection (2) "referred to in
subsection 45(1)" should also be inoperative since,
by their reference to section 45, they restrict
appeals to the Immigration Appeal Board from a
Ministerial decision based on a claim for Conven-
tion-refugee status to claims made during the
course of an inquiry, thereby creating discrimina
tion against those persons such as the petitioner for
whom an inquiry has not been ordered and cannot
be demanded. Such a discrimination is clearly
contrary to the principles set out in the Supreme
Court judgment in the case of Singh. As a Court
of competent jurisdiction over the present section
18 proceedings I believe that pursuant to subsec-
tion 24(1) of the Canadian Charter of Rights and
Freedoms I may order an appropriate remedy.
An order will therefore be issued as follows:
1. The words "pursuant to subsection 45(5)" in
subsection (1) of section 70 of the Immigration
Act, 1976 and the words "referred to in subsection
45(1)" in subsection (2) of section 70 are
inoperative.
2. The petitioner shall be entitled to be exam
ined under oath by a senior immigration officer
respecting his claim for Convention-refugee status
in the same way as a person who has raised this
claim during an inquiry pursuant to subsection
45(1) of the Act, and subsections (2), (3), (4), (5)
and (6) of section 45 shall thereafter be applied
with respect to such examination.
3. The order of deportation of September 12,
1984 against the petitioner shall be suspended
until final determination of his renewed claim for
Convention-refugee status is made as above and
any appeals resulting therefrom. The Ministerial
authorities shall be enjoined from carrying out this
deportation pending the final determination.
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.