DES-04-01
2002 FCT 1046
In the matter of a certificate pursuant to section 40.1 of the Immigration Act, R.S.C., 1985, c. I-2, now deemed to be under subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
And in the matter of the referral of that certificate to the Federal Court of Canada
And in the matter of Mahmoud Jaballah
Indexed as: Jaballah (Re) (T.D.)
Trial Division, MacKay J.--Toronto, September 20; Ottawa, October 8, 2002.
Citizenship and Immigration -- Status in Canada -- Inadmissible Persons -- Procedures for application for protection -- Review pursuant to Immigration and Refugee Protection Act (IRPA), s. 79(2) of Minister's decision on application for protection -- Jaballah subject of certificate declaring him inadmissible to Canada on national security grounds -- As IRPA coming into force while consideration of certificate by Court pending, IRPA governing proceedings -- Jaballah applying for protection under s. 112 -- Proceedings with respect to certificate suspended -- Minister not notifying Court pursuant to s. 79(2) of decision on protection application -- S. 95 not vesting authority in either Board or Minister to grant, dismiss application for protection -- Implicitly Minister to make decision upon application for protection -- Scheme of Act reviewed -- Court lacking authority to resume proceedings to determine lawfulness of certificate of inadmissibility as Minister not notifying Court of decision on application for protection -- Immigration and Refugee Protection Regulations, ss. 160, 172 not ultra vires.
This was an application for a review pursuant to Immigration and Refugee Protection Act (IRPA), subsection 79(2) of the Minister's decision on an application for protection. In August 2001 a certificate was issued pursuant to Immigration Act, section 40.1 certifying that Mr. Jaballah, a refugee claimant, was inadmissible to Canada on national security grounds. The certificate was referred to the Court for determination of whether it was reasonable. Consideration was incomplete when the Immigration Act was repealed and replaced by the IRPA which came into effect on June 28, 2002. Disposition of the proceedings in relation to the certificate filed by the ministers was governed by the IRPA, as section 190 provides that a proceeding under the former Act that is pending or in progress immediately before the coming into force of IRPA is to be governed by the latter. Mr. Jaballah applied to the Minister of Citizenship and Immigration under IRPA, section 112 for protection and the proceedings with respect to the certificate were suspended in order for the Minister to decide the application for protection. IRPA, subsection 79(2) provides if the application for protection is decided, the Minister shall give notice of the decision to the person who has applied and to the judge, who shall then resume the proceeding, review the lawfulness of the Minister's decision on the application for protection and determine whether the certificate is reasonable and whether the decision on the application for protection is lawfully made (subsection 80(1)). The Court was not notified of the Minister's decision on the protection application, but was advised by counsel that Mr. Jaballah had received a pre-removal risk assessment (PRRA) indicating that he faces the risks of torture and death contemplated in the section 97 definition of a person in need of protection and that the application for protection was allowed.
Mr. Jaballah sought a declaration that the Minister's decision with respect to the application for protection has been made, but simply not transmitted to the Court, an order prohibiting the Minister from taking any further steps with respect to the PRAA, and an order declaring Immigration and Refugee Protection Regulations, sections 160 and 172 ultra vires. Section 172 requires that the Minister consider written assessments on the basis of the factors set out in sections 97 and 113.
Held, the application should be dismissed.
The Court lacked authority to grant the orders sought. IRPA, section 95 does not vest authority in either the Board or the Minister to grant or dismiss an application for protection. Rather, the Board is vested with authority under sections 100 and 101 to consider claims for refugee protection, and claims by persons to be in need of protection, when a claim is referred by an immigration officer. The Minister's authority to grant an application for protection is derived from subsection 112(1) when an application for protection is made to the Minister. The Minister's authority is not based upon paragraph 95(1)(c), which merely provides that when the Minister allows an application for protection, refugee protection is conferred on a person concerned except in the case of a person described in subsection 112(3), as Mr. Jaballah is. Neither paragraph 95(1)(c) nor section 112 specifically designates whether the Minister or the Board shall determine an application for protection made by a person within subsection 112(3). Subsection 112(1) provides for an application for protection to be made to the Minister by a person subject to a removal order or named in a certificate under subsection 77(1), but the application, in certain designated cases, including one from a person named in a certificate, may not result in refugee protection. Implicitly a decision upon an application for protection made to the Minister under subsection 112(1) is to be made by the Minister. That conclusion is supported by section 79 which provides for suspension of these proceedings concerning a certificate in order for the Minister to decide an application for protection made under subsection 112(1). Under subsection 79(2) these proceedings are to be resumed when "the Minister shall give notice of the decision" in relation to the application for protection made under subsection 112(1) "and the judge shall review the lawfulness of the decision of the Minister".
The scheme of the Act is as follows: (1) Under subsection 77(1) the ministers concerned may refer a certificate of their opinion that a foreign national is inadmissible to Canada on national security grounds to this Court which then makes a determination under section 80. (2) Section 78 sets out the procedure to be followed by the Court in reaching its determination. (3) Section 79 directs suspension of the proceedings to permit the Minister to decide an application for protection made under subsection 112(1). (4) These proceedings, after suspension, are to resume in accord with subsection 79(2) when the Minister gives notice, to the applicant, and to the judge of this Court of the Minister's decision on the application for protection. (5) That decision shall be based on the factors set out in section 97, which defines a person in need of protection, and also on an assessment whether the application should be refused because of the danger the applicant constitutes to the security of Canada. (6) Upon resuming the proceedings this Court shall consider the lawfulness of the Minister's decision and shall determine the reasonableness of the certificate and whether the decision on the application for protection is lawful. (7) Subsection 112(1) provides for an application for protection to be made to the Minister by a person who is subject to a removal order or is described in subsection 77(1), as Mr. Jaballah is. Certain persons described in subsection 112(2) may not apply for protection, and by paragraphs 95(1)(c) and 112(3)(d) "refugee protection" as provided in section 95 does not result if the Minister allows an application for protection made by a person, inter alia, described in paragraph 112(3)(d), a person named in a certificate under subsection 77(1). (8) The proceedings in relation to the ministers' certificate deemed filed pursuant to subsection 77(1), now suspended, are to resume upon advice to the Court, as well as to the applicant, of the Minister's decision on the application for protection. Notice of this decision was not provided.
Regulations, section 160 is not ultra vires. An application for protection made to the Minister in accord with subsection 112(1) is to be dealt with by the Minister. In doing so the Minister is bound by relevant provisions of the statute and of the Regulations. Section 116 expressly refers to regulations which may provide "for any matter relating to the application of this Division" including "provisions respecting procedures to be followed with respect to applications for protection". Section 172 appears to be within the broad grant of regulating authority under section 116 and no persuasive argument was made to determine otherwise.
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, 24(1).
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5). |
| Immigration Act, R.S.C., 1985, c. I-2, s. 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 34(1)(b), (c), (f), 77, 78, 79, 80, 81, 95-116, 190. |
| Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 160-174. |
cases judicially considered
distinguished:
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 159; 18 Imm. L.R. (3d) 1; 281 N.R. 1 (S.C.C.).
referred to:
Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (T.D.) (QL).
APPLICATION for a review pursuant to Immigration and Refugee Protection Act, subsection 79(2) of the Minister's decision on an application for protection, and for a declaration that Immigration and Refugee Protection Regulations, sections 160 and 172 are ultra vires. Application dismissed.
appearances:
Donald MacIntosh and David Tyndale for applicant Solicitor General of Canada.
Robert F. Batt and Marthe Beaulieu for applicant Minister of Citizenship and Immigration.
Rocco Galati for respondent.
solicitors of record:
Deputy Attorney General of Canada for applicants.
Galati, Rodrigues & Associates, Toronto, for respondent.
The following are the reasons for order rendered in English by
[1]MacKay J.: These reasons concern my disposition of an application on behalf of the respondent, Mr. Jaballah, for:
| (a) a review, pursuant to s. 79(2) of the Immigration and Refugee Protection Act (IRPA); |
| (b) an order pursuant to s. 79(2) of the IRPA, s. 18.1(4) of the Federal Court Act, and s. 24(1) of the Charter, in the nature of: |
| (i) a declaration or finding that the decision of the Minister pursuant to s. 79(2) has been made and simply failed to be transmitted to the Court as required; |
| (ii) an order prohibiting the Minister and/or his delegate(s) to take any further steps with respect to the "PRRA"; |
| (iii) an order releasing the respondent from custody; |
| (c) an order (in the nature) of a declaration or finding that ss. 160, et seq. and in particular s. 172 of the IRPA Regulations are ultra vires the clear scheme of the IRPA itself. |
The application arises from differences between counsel for the parties concerning the appropriate interpretation of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) in so far as provisions of the Act and Regulations concern procedures following an application for protection made by the respondent pursuant to subsection 112(1) of the Act.
BACKGROUND
[2]A summary of the essential background in which the issue arises is this. A certificate was issued in August 2001, pursuant to then section 40.1 [as enacted by R.S.C., 1985 (4th) Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31] of the Immigration Act, R.S.C., 1985, c. I-2 as amended, certifying the opinion of the Minister of Citizenship and Immigration and the Solicitor General of Canada (the ministers) that Mr. Jaballah, then and still a claimant for refugee protection, is inadmissible to Canada on specified grounds concerning national security. That certificate was referred to the Court for determination whether it was reasonable in light of the evidence and information filed by the ministers. Consideration was incomplete when the Immigration Act was repealed and replaced by IRPA, which came into effect on June 28, 2002.
[3]Under section 190 of IRPA a proceeding under the former Act that is pending or in progress immediately before the coming into force of IRPA is to be governed by the latter Act. Thus, disposition of the proceedings in relation to the certificate filed by the ministers is now governed by the IRPA.
[4]In accord with section 190 I deem these proceedings to be under Part I, Division 9 of IRPA and the referral of the certificate of the applicant ministers to be in accord with subsection 77(1) of that Act. Further, the security grounds specified by the ministers' certificate are now reflected by paragraphs 34(1)(b), (c) and (f) of IRPA, which I deem to be the relevant grounds on which the certificate is now based.
[5]IRPA sets out a new procedure for a person in Canada named in a certificate, as Mr. Jaballah is pursuant to subsection 77(1) of the Act, to apply to the Minister of Citizenship and Immigration for protection in accord with section 112 of the Act. Mr. Jaballah did so, and on his request, pursuant to subsection 79(1) of IRPA this Court suspended the proceedings with respect to the certificate in order for the Minister to decide the application for protection.
[6]A person in need of protection is defined by section 97 of IRPA. Since IRPA is recently in force, I reproduce in Annex A to these reasons, the text or a summary description of those provisions relevant to the issues of interpretation discussed herein, including section 97.
[7]The Act further provides for resumption of proceedings in this manner: if the application for protection is decided, the Minister shall give notice of the decision to the person who has applied and to the judge, who then shall resume the proceeding and "shall review the lawfulness of the decision of the Minister" (subsection 79(2)) and "shall . . . determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made" (subsection 80(1)).
[8]This Court has not had notice from the Minister of his decision in relation to Mr. Jaballah's application for protection, as I would expect in accord with subsection 79(2). The Court has been advised however, by counsel for Mr. Jaballah that he has received a pre-removal risk assessment (PRRA), dated August 15, 2002, in response to Mr. Jaballah's application. In this a representative of the Minister concludes his assessment, with reference to relevant sections, including in particular subsection 97(1) of the IRPA, in the following terms: "it is my opinion that there are substantial grounds for believing that the applicant would be killed or tortured should he be required to return to Egypt". The assessment is summarized as confirming positively (i.e., "yes"), that Mr. Jaballah faces a risk of torture within paragraph 97(1)(a), and a risk of cruel or unusual treatment or punishment within paragraph 97(1)(b), and that the application for protection is allowed.
[9]Counsel for Mr. Jaballah urges that reading the Act as a whole, in particular sections 79, 81, 107 and 112, the report, made in response to his application under subsection 112(1), having now been received by him, the hearing before this Court to determine the reasonableness of the security certificate effectively becomes moot and terminates. Moreover, he urges that section 160 et seq. and particularly section 172 of the Regulations, here relied upon by the Minister, are ultra vires as dealing with matters beyond the scope of delegation of regulating authority under the IRPA since they are said to be in conflict with the clear scheme of the Act. On this basis he seeks the relief set out at the commencement of these reasons.
[10]For the Minister, counsel urges a different interpretation of the IRPA, in essence, that the Minister has yet to report to the Court as required pursuant to subsection 79(2), so that the consideration of the reasonableness of the certificate filed with the Court has not resumed, and consideration of the lawfulness of the Minister's decision on the application for p rotection has not begun.
[11]It is urged for the Minister that, before his decision is made on the application and a report is made to Mr. Jaballah and the Court, the Act and Regulations require a second step to be taken in accord with subparagraph 113(d)(ii) of the Act. This provision directs that consideration of an application for protection, in a case like Mr. Jaballah's, shall be on the basis of factors set out in section 97 and "whether the application should be refused because of . . . the danger that the applicant constitutes to the security of Canada".
[12]In support of the concept of two phases in the decision on an application for protection, counsel for the Minister urges that the Regulations, in Division 4, sections 160-174 are valid. These deal with procedures applicable when an application for protection is made. Section 172 of the Regulations, the validity of which is disputed by counsel for Mr. Jaballah, provides in part:
172. (1) Before making a decision to allow or reject the application of an applicant described in subsection 112(3) of the Act, the Minister shall consider the assessments referred to in subsection (2) and any written response of the applicant to the assessments that is received within 15 days after the applicant is given the assessments.
(2) The following assessments shall be given to the applicant:
(a) a written assessment on the basis of the factors set out in section 97 of the Act; and
(b) a written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act, as the case may be.
[13]If the Court upholds the interpretation of the statutory process urged by counsel for the Minister, the Court is advised by counsel that the process of completing the assessments and forming a final decision in relation to Mr. Jaballah's application may require up to three months. That process is set out mainly, and in some detail, in sections 160-174 of the Regulat ions.
Submissions of the parties
[14]At the risk of inadequately expressing the submissions on behalf of Mr. Jaballah, I here set out my understanding of those submissions and of the position of the ministers concerning interpretation of the Act and the Regulations.
[15]For Mr. Jaballah it is urged that the IRPA provides for two tracks, one leading to determination by the Immigration and Refugee Board, and the other leading to the allowance or disallowance by the Minister of an application for protection. Part 2 of the IRPA provides for "Refugee Protection, Convention Refugees and Persons in Need of Protection" under sections 95-111, and for "Pre-removal Risk Assessment" under sections 112-116.
[16]Section 95 provides that refugee protection is conferred when (a) a person is determined to be a Convention refugee or to be in similar circumstances under a visa application and who obtains residency status, temporary or permanent, (b) the Board, i.e. the Immigration and Refugee Board, determines a person to be a Convention refugee or a person in need of protection, or (c), "except in the case of a person described in subsection 112(3), the Minister allows an application for protection". Counsel for Mr. Jaballah argues that section 95 grants authority for the Board or the Minister to grant protection, but that the exception in paragraph (c) means that the Minister does not have authority to grant an application for protection in the case of a person described in subsection 112(3), as Mr. Jaballah is as a person named in a certificate referred to in subsection 77(1).
[17]Further, for Mr. Jaballah it is urged that consideration of his application for protection, pursuant to subparagraph 113(d)(ii), which provides for persons included in subsection 112(3) to be considered on the basis of factors set out in section 97, and, in Mr. Jaballah's case, whether his application should be refused because of the danger he constitutes to the security of Canada, is a matter for consideration of the Board, not the Minister, since the Minister is precluded by paragraph 95(1)(c) from considering the application for protection made by Mr. Jaballah, a person included in paragraph 112(3)(d).
[18]On this basis it is urged that there is no basis for continuing consideration by this Court of the certificate of the Ministers concerned. It is said the determination directed by sections 77 and 80 is moot. Consideration of the balance between Mr. Jaballah's status as a person in need of protection under section 97 and the threat he poses to the security of Canada under subparagraph 113(d)(ii) is said to be a matter for the Board, not for the Minister, nor is it of interest to this Court. The certificate filed with the Court by the Minister of Citizenship and Immigration and the Solicitor General of Canada would simply remain outstanding and need not now be determined.
[19]Moreover, in view of the determination now made that Mr. Jaballah is a person in need of protection as defined by section 97, it is urged in regard to the balancing of factors required by subpara-graph 113(d)(ii), the special circumstances required, in light of section 7 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]], for removal from Canada of Mr. Jaballah are not likely to be established. Those circumstances are referred to by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. In that case the Court expressed these views, inter alia, at paragraphs 76, 77, 78:
The Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspectives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter. . . .
In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.
We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 "only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like" . . . . Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases. [Citations omitted.]
[20]At this stage in these proceedings this Court is not concerned with a decision concerning removal of Mr. Jaballah from Canada. If the result of this proceeding is a determination that the certificate of the ministers is reasonable, one result would be that the determination becomes a removal order (paragraph 81(b)), but that order is stayed with respect to a country or place in respect of which the applicant has been determined to be in need of protection by the Minister's decision (paragraph 114(1)(b)). If circumstances change, the stay of removal is subject to review, and may be cancelled by the Minister (subsection 114(2)). In my opinion it is premature to consider what may ultimately be determined in these proceedings, or in any proceedings which may follow them. Thus, interesting as the comments in Suresh are, they are not relevant to the issues now before this Court.
[21]There are two further arguments raised by counsel for Mr. Jaballah. In his view, the PRRA completed on behalf of the Minister constitutes the decision the Minister is directed by subsection 79(2) to make and at this stage the Minister has merely neglected to advise the Court directly of his decision. A declaration to this effect, is sought. Moreover, it is urged that the decision pursuant to paragraph 113(d) is not for the Minister to make since he is precluded by paragraph 95(1)(c) from granting an application for protection from someone within paragraph 112(3)(d).
[22]The last argument on behalf of Mr. Jaballah, is in response to a question concerning the meaning to be given to subsection 80(1) which directs the Court, after it is advised by the Minister of the decision on the application for protection, to determine whether the certificate of the Ministers' opinion is reasonable and whether the decision of the Minister on the application for protection is lawfully made. It is urged that since subsection 79(2) directs the Court on resumption of the proceedings only to review the lawfulness of the decision of the Minister, that provision "trumps" or prevails over subsection 80(1), and the Court's function, if the Minister's decision is lawful, is ended. I am not persuaded that the IRPA is to be read in this way. There is, in my view, no conflict between subsections 79(2) and 80(1) in relation to the Court's function in reviewing the lawfulness of the Minister's decision on the application for protection. The latter provision does also specifically reaffirm the task of this Court in considering the reasonableness of the Ministers' certificate, a task directed by subsection 77(1) to make a determination under section 80.
[23]For the Crown it is urged that counsel for Mr. Jaballah is avoiding the true interpretation of the IRPA, and is seeking to argue policy and why the Act should be construed as he contends. Counsel for the Minister concentrated argument on those provisions of IRPA, particularly subparagraph 113(d)(ii), and section 172 of the Regulations to support a two-stage procedure for the Minister to decide the application for protection. In counsel's view the construction urged for Mr. Jaballah was unacceptable since it did not reflect the Act and the Regulations as understood by the Minister.
ANALYSIS
[24]After consideration of submissions made when this matter was heard, it is my opinion, with respect to the interpretation proposed by counsel for Mr. Jaballah, that the Court is without authority under IRPA or otherwise to grant the orders sought in his application. While reference is made in Mr. Jaballah's motion to the Federal Court Act, R.S.C., 1985, c. F-7 as amended, and to subsection 24(1) of the Canadian Charter of Rights and Freedoms, as sources of authority for the Court to act as requested, neither of those was urged in argument and I am not persuaded the Court should act as requested, particularly since, as I conclude, the relief sought is based on an unacceptable interpretation of IRPA.
[25]I reach that conclusion for the following reasons. I am not persuaded that section 95 of IRPA vests authority in either the Board or the Minister to grant or dismiss an application for protection. Rather, the Board is vested with authority under sections 100 and 101 to consider claims for refugee protection, and claims by persons to be in need of protection, when a claim is referred by an immigration officer. The authority for the Minister to grant an application for protection is derived from subsection 112(1) when an application for protection is made to the Minister. In my opinion, the Minister's authority is not based upon paragraph 95(1)(c). The latter merely provides that when the Minister allows an application for protection, refugee protection is conferred on a person concerned except in the case of a person described in subsection 112(3), as Mr. Jaballah is, by paragraph (3)(d) of section 112.
[26]Neither paragraph 95(1)(c) or section 112 specifically designates whether the Minister or the Board, shall determine an application for protection made by a person within subsection 112(3). As I read the Act section 112, subsection (1) provides for an application for protection to be made to the Minister by a person subject to a removal order or named in a certificate under subsection 77(1), but the application, in certain designated cases, including one from a person named in a certificate, may not result in refugee protection (paragraph 112(3)(d)). Implicitly, a decision upon an application for protection, made to the Minister under subsection 112(1), is to be made by the Minister. That conclusion is supported by section 79 which provides for suspension of these proceedings concerning a certificate in order for the Minister to decide an application for protection made under subsection 112(1). Under subsection 79(2) these proceedings are to be resumed when "the Minister shall give notice of the decision" in relation to the application for protection made under subsection 112(1) "and the judge shall review the lawfulness of the decision of the Minister".
[27]In my opinion the scheme of the Act, so far as it is relevant at this stage in these proceedings is this:
(1) Under subsection 77(1) the ministers concerned (i.e., of Citizenship and Immigration and the Solicitor General of Canada) may refer a certificate of their opinion, that a foreign national is inadmissible to Canada on grounds of national security, to this Court which then is to make a determination under section 80.
(2) Section 78 sets out the procedure to be followed by the Court in reaching its determination.
(3) Section 79 directs suspension of the proceedings on the request by the person affected or by the Minister, to permit the Minister to decide an application for protection made under subsection 112(1).
(4) These proceedings, after suspension, are to resume in accord with subsection 79(2) when the Minister gives notice, to Mr. Jaballah in this case, and to the judge of this Court of the decision of the Minister on the application for protection.
(5) That decision, on the application for protection, in this case, shall be based on the factors set out in section 97, which defines a person in need of protection, and also on an assessment whether the application should be refused because of the danger the applicant constitutes to the security of Canada (subparagraph 113(d)(ii)).
(6) Upon resuming the proceedings, this Court shall consider the lawfulness of the decision of the Minister, (subsection 79(2)) and shall determine the reasonableness of the certificate and whether the decision on the application for protection is lawful (subsection 80(1)).
(7) Subsection 112(1) provides for an application for protection to be made, in accord with Regulations, to the Minister by a person who is subject to a removal order or is described in subsection 77(1), as Mr. Jaballah is. Certain persons described in subsection 112(2) may not apply for protection, and by paragraphs 95(1)(c) and 112(3)(d) "refugee protection" as provided in section 95 does not result if the Minister allows an application for protection made by a person, inter alia, described in paragraph 112(3)(d), a person named in a certificate under subsection 77(1).
(8) The proceedings in relation to the ministers' certificate deemed filed pursuant to subsection 77(1), now suspended, are to resume upon advice to the Court, as well as to Mr. Jaballah, of the Minister's decision on the application for protection. I do not consider that notice of his decision has been provided to me, as the judge concerned, by the Minister. The PRRA report by a representative of the Minister has not been sent to the judge by the Minister as he is required to do when his decision is made.
[28]I hesitate to attempt any definitive interpretation of the process to be followed by the Minister in dealing with an application for protection, particularly in light of the prospect that at a future date I may be required to review the lawfulness of the Minister's decision considering the grounds referred to in subsection 18.1(4) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, which are sufficiently broad to include review of questions of law, of fact and of procedure.
[29]On the claim for Mr. Jaballah that section 160 et seq. of the Regulations are ultra vires, while argument at the hearing dealt primarily with section 172, I am not persuaded that that section or any other in Part 8, Division 4 of the Regulations, which includes sections 160 to 174 under the general heading "Pre-Removal Risk Assessment", is ultra vires. The argument for Mr. Jaballah on the validity of these Regulations is based on counsel's interpretation of paragraph 95(1)(c) of the IRPA, with a limited role for the Minister, in dealing with an application for protection. I am not persuaded by that interpretation as I have indicated. In my opinion an application for protection, made to the Minister in accord with subsection 112(1), is to be dealt with by the Minister.
[30]In doing so the Minister is bound by relevant provisions of the statute and of the Regulations. The statute specifically provides by section 116 for regulations relating to the application of Part I, Division 3 of the Act concerning pre-removal risk assessment, (i.e., sections 112-116). Section 116 includes authority to provide by regulation "for any matter relating to the application of this Division" including "provisions respecting procedures to be followed with respect to applications for protection". In my opinion, section 172 of the Regulations on its face appears to be within the broad grant of regulating authority under section 116 of the Act and no persuasive argument has been made to determine otherwise.
CONCLUSION
[31]For the foregoing reasons, I dismiss the application for the relief and the orders sought on behalf of Mr. Jaballah.
[32]I do urge that the Minister of Citizenship and Immigration complete his assessment of Mr. Jaballah's application for protection and advise Mr. Jaballah and this Court of his decision, as soon as possible. I am concerned, as I expect the Minister will also be, that Mr. Jaballah's situation remains unresolved while he continues to be detained, now for a period of nearly 14 months. I acknowledge that period results in part from the time I required to fully appreciate the information before the Court in Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (T.D.) (QL), determined by Mr. Justice Cullen in November 1999 when he quashed the first certificate issued by the ministers, and the information before the Court in this case.
[33]For purposes of record, in view of the change in legislation applicable to these proceedings, this Court by its order also directs that the style of cause be modified, and be as set out at the commencement of these reasons and the accompanying order.
Annex A
Statutory Provisions from the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27.
. . .
PART 1
Division 9
Protection of Information
. . .
77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court--Trial Division, which shall make a determination under section 80.
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.
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79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).
(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act.
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under subsection 112(1).
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PART 2
REFUGEE PROTECTION
Division 1
Refugee Protection, Convention Refugees and Persons in Need of Protection
95. (1) Refugee protection is conferred on a person when
(a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or
(c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
Division 2
Convention Refugees and Persons in
Need of Protection
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Division 3
Pre-removal Risk Assessment
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112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
. . .
(3) Refugee protection may not result from an application for protection if the person
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or
(d) is named in a certificate referred to in subsection 77(1).
113. Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
(b) hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
114. (1) A decision to allow the application for protection has
(a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and
(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place i n respect of which the applicant was determined to be in need of protection.
(2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d ) and the regulations, the grounds on which the application was allowed and may cancel the stay.
(3) If the Minister is of the opinion that a decision to allow an application for protection was obtained as a result of directly or indirectly misrepresenting or witholding material facts on a relevant matter, the Minister may vacate the decision.
(4) If a decision is vacated under subsection (3), it is nullified and the application for protection is deemed to have been rejected.
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116. The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting procedures to be followed with respect to applications for protection and decisions made under section 115, including the estab lishment of factors to determine whether a hearing is required.