2005 FC 429
IMM-6352-04
IMM-6353-04
IMM-7038-04
Eric Hernandez (Applicant)
v.
The Minister of Citizenship and Immigration and The Solicitor General of Canada (Respondent)
Indexed as: Hernandez v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Snider J.--Winnipeg, March 8; Ottawa, March 31, 2005.
Citizenship and Immigration -- Exclusion and Removal -- Inadmissible Persons -- Judicial review of immigration officer's Immigration and Refugee Protection Act (IRPA), s. 44(1) report applicant inadmissible for serious criminality, Minister's delegate's referral of applicant under IRPA, s. 44(2) for admissibility hearing, Immigration Division's deportation order -- Applicant permanent resident convicted, sentenced to 30 months' imprisonment -- Inadmissible pursuant to IRPA, s. 36(1)(a) -- Immigration officer deciding to prepare IRPA, s. 44(1) report for Minister's delegate setting out relevant facts re: inadmissibility -- Minister's delegate deciding, pursuant to IRPA, s. 44(2), report well founded, referring it to Immigration Division for admissibility hearing -- Removal only outcome of such hearing for inadmissible person -- Issue whether immigration officer, Minister's delegate, having ability to consider factors other than applicant's conviction when deciding whether to prepare report, refer it for hearing -- Scope of discretion of immigration officer, Minister's delegate broad enough for them to consider factors outlined in relevant sections of Department of Citizenship and Immigration Manual -- Applications allowed -- Question of general importance certified re: scope of discretion of immigration officer, Minister's delegate under IRPA, s. 44.
Construction of Statutes -- Applicant inadmissible under Immigration and Refugee Protection Act, s. 36(1)(a) on ground of serious criminality -- IRPA, s. 44(1) allowing residual discretion in that officer may prepare report setting out relevant facts -- Use of "may" confirming Parliament's intent that even in cases of serious criminality, officer allowed some discretion -- As to meaning of "relevant facts", parliamentary Committee proceedings, Department of Citizenship and Immigration (CIC) Manual indicative of CIC's view ss. 44(1) and (2) granting officer, Minister's delegate, broad discretion -- Manuals, guidelines playing limited role in interpretation of legislation, but should be given some weight -- Factors listed in Manual having some relevance to criminal conviction, connected to IRPA's purpose, related to assessment of whether person going to help enrich, strengthen social, cultural fabric of Canadian society -- Balancing to be done against other objectives, but these objectives not automatically denying access to Canada to person with criminal conviction.
Administrative Law -- Duty of fairness -- Factors set out in Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.) applied to determine duty of fairness owed under Immigration and Refugee Protection Act, ss. 44(1) and (2) -- Duty of fairness in case at bar requiring applicant be afforded right to make submissions orally or in writing and to obtain copy of report -- Duty also requiring applicant be informed of purpose of interview -- These things not done in case at bar -- Question of general importance certified re: duty of fairness owed by immigration officer, Minister's delegate.
These were applications for judicial review of (1) an immigration officer's report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (IRPA) that the applicant is inadmissible for serious criminality; (2) the Minister's delegate's referral of the applicant for an admissibility hearing under subsection 44(2); and (3) the Immigration Division of the Immigration and Refugee Board's order that the applicant be deported.
The applicant, a citizen of the Philippines, arrived in Canada as a permanent resident in 1985 at age 12. In 2003, he was convicted and sentenced to 30 months' imprisonment for possession of cocaine for the purposes of trafficking. As a result of this conviction, the applicant was inadmissible pursuant to paragraph 36(1)(a) of the IRPA, which provides that a permanent resident is inadmissible for having been convicted of an offence punishable by a maximum term of imprisonment of at least 10 years, or of an offence for which a term of imprisonment of more than six months has been imposed. The process set out in sections 44 and 45 was thus engaged. First, an immigration officer had to decide whether to prepare a report for the Minister setting out the relevant facts pertaining to the applicant's inadmissibility. Then, the Minister's delegate had to decide whether the report was well-founded and whether to refer it to the Immigration Division for an admissibility hearing. Finally, pursuant to paragraph 45(d) of the IRPA, the only possible outcome of the admissibility hearing for someone in the applicant's position was removal with no right of appeal (section 64). Under the former Immigration Act, the applicant would have had a right to appeal a deportation order to the Immigration Appeal Division (IAD), which could take into account a wide range of factors known as the "Ribic factors".
The threshold issue in this case was whether under the IRPA regime, the officer under subsection 44(1), and/or the Minister's delegate under subsection 44(2), have the ability to consider factors beyond the fact of the applicant's conviction when deciding whether to prepare a report, and whether to refer it for an admissibility hearing. The Court then had to consider the duty of fairness owed under subsections 44(1) and (2).
Held, the applications should be allowed.
The relevant provisions were interpreted using the modern approach to statutory interpretation. On the basis of a simple reading of paragraph 36(1)(a) of the IRPA, the applicant is inadmissible on the ground of serious criminality and the officer could not reach any other opinion. However, subsection 44(1) allows a residual discretion in the immigration officer in that he "may prepare a report setting out the relevant facts". In Correia v. Canada (Minister of Citizenship and Immigration), the Federal Court concluded that in the case of serious criminality, the relevant facts relate solely to the fact of the conviction. The Federal Court in that case did not however conclude that the immigration officer was precluded from considering anything beyond the conviction itself. Correia was read as saying that the facts considered must be related to the criminal conviction. The use of the word "may" confirms Parliament's intent that even in cases of serious criminality, the officer should be allowed some discretion. As to what is meant by the term "relevant facts", the term should not be interpreted as narrowly as in Correia. Neither the transcript of the parliamentary Committee proceedings nor the Department of Citizenship and Immigration (CIC)'s Manual, were before the Federal Court in Correia and Leong v. Canada (Solicitor General) (another case in which the Federal Court held that the Ribic factors cannot be considered under subsections 44(1) and (2)). Both documents make it clear that in CIC's view, subsections 44(1) and (2) allow the officer and the Minister's delegate to exercise their discretion in a very broad manner and take into account "all the circumstances" of each case (including the Ribic factors). Although not binding, manuals and guidelines (and Hansard evidence in general) can play a limited role in the interpretation of legislation. They can offer opinion on the purpose or meaning of the legislation, and should be given some weight. The procedure described at the parliamentary Committee proceedings and in the Manual are in harmony with the IRPA. The factors listed in the Manual (such as age at time of landing, degree of establishment, criminality, family support, current attitude) have some relevance to the criminal conviction and are connected to the purpose of IRPA. Whether someone is likely to reoffend or to be rehabilitated, whether a person has a strong support network or whether this was a first conviction are all matters that relate to an assessment of whether, in spite of the serious criminality, this person is or is not going to help enrich and strengthen the social and cultural fabric of Canadian society (one of the objectives of immigration set out in IRPA, section 3). There is a balancing to be done in order to achieve other objectives of the IRPA (such as protecting the safety of Canadians), but these objectives do not operate to automatically deny access to Canada to a person who has a criminal conviction.
Despite the concern that persons convicted of serious crimes may be allowed to stay in Canada with only a notation in the CIC file (whereas under the former Act, the considerations of "all the relevant circumstances" was undertaken by the IAD, an independent, quasi-judicial body), the scope of the discretion of an immigration officer under subsection 44(1) of the IRPA and of the Minister's delegate under subsection 44(2) is broad enough for them to consider the factors outlined in the relevant sections of the CIC Manual.
On the duty of fairness owed by officials carrying out their functions under subsections 44(1) and (2), it was necessary to review the factors set out in Baker v. Canada (Minister of Citizenship and Immigration). (1) Although the decisions of the immigration officer and of the Minister's delegate appeared final (as the Immigration Division had no choice but to order the applicant's deportation), relevant case law has characterized these types of decisions as "purely adminis-trative". Applying such case law, the nature of the decision herein favoured a relatively low duty of fairness. (2) Viewing the statute as a whole, the decisions at issue are not necessarily determinative of whether the applicant will be removed from Canada. The applicant had the right to make an application to the Minister for an exemption on humanitarian and compassionate (H&C) grounds, and he could have availed himself of a pre-removal risk assessment. This factor favoured a lower duty of procedural fairness. (3) Although the decisions in question were important to the applicant, he had access to two other procedures where H&C factors and possibility of risk could have been considered. (4) Because the Manual sets out, inter alia, the right to make submissions and the right to receive a copy of the report, and given that the Manual is available to the public, it was reasonable for the applicant to expect that these two elements would be included in the duty of fairness. This sets the bar for the duty of fairness at something more than merely acting in good faith. (5) Weight should be given to CIC's choice of procedure (discussed above).
These factors pointed toward a more relaxed duty of fairness. The duty of fairness in the case at bar required that the applicant be given the right to make submissions either orally or in writing and to obtain a copy of the report. Implicit in this duty is a requirement that the applicant be informed of the purpose of that interview so that he may make meaningful submissions, and that the immigration officer put to the applicant any information he has that the applicant would not reasonably be expected to have. A further implication is that the applicant should be offered the opportunity to have counsel present at any interview or to assist him in preparing written submissions.
In the case at bar, the immigration officer did not provide the applicant with the appropriate level of procedural fairness because: (1) the applicant was not advised of the purpose of the interview; (2) he was not allowed to make submissions; and (3) he was not given a copy of the officer's report.
The officer's report should be quashed. Because of the errors therein, it was impossible to determine the validity of the Minister's delegate's decision, which was therefore quashed as well. As a result, the Immigration Division had no jurisdiction to proceed with the applicant's admissibility hearing and no jurisdiction to issue the deportation order. That decision was quashed.
Two questions of general importance were certified. The first asked the scope of the immigration officer's discretion under subsection 44(1), and that of the Minister (or Minister's delegate) under subsection 44(2). The second asked the duty of fairness owed in respect of the immigration officer's decision and the Minister's delegate's decision.
statutes and regulations judicially
considered
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2),(3).
| Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d), (3) (as am. by S.C. 1992, c. 49, s. 16), (6) (as enacted idem), 32(2) (as am. by S.C. 1992, c. 49, s. 21), 70(1)(b) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(b),(h),(i), 25, 36, 44(1),(2), 45, 64, 112. |
cases judicially considered
applied:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Kindler v. MacDonald, [1987] 3 F.C. 34; (1987), 41 D.L.R. (4th) 78; 26 Admin. L.R. (2d) 186; 3 Imm. L.R. (2d) 38; 80 N.R. 388 (C.A.).
distinguished:
Cha v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 503; (2004), 258 F.T.R. 54; 2004 FC 1507.
considered:
Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL); Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268; 2002 SCC 3; Correia v. Canada (Minister of Citizenship and Immigration) (2004), 253 F.T.R. 153; 36 Imm. L.R. (3d) 139; 2004 FC 782; Leong v. Canada (Solicitor General) (2004), 256 F.T.R. 298; 41 Imm. L.R. (3d) 48; 2004 FC 1126; Anderson v. Canada (Customs and Revenue Agency) (2003), 234 F.T.R. 227; 2003 FCT 667; Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 3; (2001), 199 D.L.R. (4th) 519; 13 Imm. L.R. (3d) 96; 268 N.R. 337; 2001 FCA 49.
referred to:
Construction Gilles Paquette Ltée v. Entreprises Végo Ltée, [1997] 2 S.C.R. 299; (1997), 146 D.L.R. (4th) 193; 9 C.P.C. (4th) 203; 212 N.R. 212; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 219; (2002), 1 Admin. L.R. (4th) 270; 21 C.P.R. (4th) 30; 291 N.R. 236; 2002 FCA 270.
authors cited
Canada. Parliament. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, 1st Sess., 37th Parl., April 26, 2001.
Citizenship and Immigration Canada. Immigration Manual: Enforcement (ENF). Chapter ENF 5: Writing 44(1) Reports, online: <http://www.cic.gc.ca /manuals- guides /english/index.html>.
Citizenship and Immigration Canada. Immigration Manual: Enforcement (ENF). Chapter ENF 6: Review of Reports under A44(1), online: <http://www.cic. gc.ca /manuals- guides/english /index. html>.
Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
APPLICATIONS for judicial review of decisions finding that the applicant is inadmissible for serious criminality under subsection 44(1) of the Immigration and Refugee Protection Act, referring him for an admissibility hearing under subsection 44(2) of the Act, and ordering him deported. Applications allowed.
appearances:
David Matas for applicant.
Nalini Reddy for respondent.
solicitors of record:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Snider J.: The applicant, Mr. Eric Hernandez, is a citizen of the Philippines. He arrived in Canada as a permanent resident on June 14, 1985, at the age of 12. On September 8, 2003, the applicant was convicted and sentenced to 30 months' imprisonment for possession of cocaine for the purposes of trafficking under subsection 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. This offence potentially carries a life sentence.
[2] Subsequent to his conviction, three steps were taken that led to his deportation on August 10, 2004:
1. The Officer's Report
On November 10, 2003, an immigration officer with Canada Border Services Agency (the officer), interviewed the applicant at Stoney Mountain Penitentiary. The purpose of his visit was to decide, based on the interview and other information collected, whether or not to write a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and request a referral for an admissibility hearing. On February 10, 2004, the officer sent his report (the officer's report) to the Director of the Case Management Branch for Citizenship and Immigration Canada (CIC). In his report, the officer indicated that the applicant is inadmissible according to the criteria in paragraph 36(1)(a) of the IRPA (serious criminality), due to his conviction of an offence punishable by a maximum term of imprisonment of at least 10 years. He recommended that an admissibility hearing be held.
2. The Subsection 44(2) Referral
On May 10, 2004, the Minister's delegate signed a referral and the applicant was referred for an admissibility hearing under subsection 44(2) of the IRPA (the subsection 44(2) referral).
3. The Deportation Order
The admissibility hearing was heard by a member of the Immigration Division of the Immigration and Refugee Board (the Immigration Division) on July 6, 2004. On July 6, 2004, the Immigration Division issued an order, pursuant to paragraph 45(d) of the IRPA, that the applicant be deported (the deportation order) on the basis that he fell within paragraph 36(1)(a) of the IRPA.
[3]The applicant seeks judicial review of the officer's report dated February 10, 2004 (Court file IMM-7038-04), the subsection 44(2) referral dated May 10, 2004 (Court file IMM-6353-04) and the deportation order dated July 6, 2004 (Court file IMM-6352-04).
ISSUES
[4]The issue raised by the applicant, with respect to both the officer's report and the subsection 44(2) referral, is whether there was a breach of the duty of fairness in these two steps leading to the removal order against the applicant. However, the threshold issue to be dealt with is whether the decision makers in this process have the ability to consider factors beyond the fact of the applicant's conviction. Stated with more clarity, the issues are as follows:
1. What is the scope of: (a) the officer's discretion under subsection 44(1) of the IRPA in making a decision as to whether to prepare an officer's report to the Minister (or, as in this case, the Minister's delegate) and (b) of the discretion of the Minister's delegate, under subsection 44(2) of the IRPA, in making a subsection 44(2) referral?
2. What is the duty of fairness owed in respect of: (a) the officer's report under subsection 44(1) of the IRPA; and (b) the decision of the Minister's delegate as to whether to refer the officer's report to the Immigration Division under subsection 44(2) of the IRPA?
3. In the case of the applicant, was there a breach of the duty of fairness?
[5]The third of the decisions--the deportation order--came as a consequence of the officer's report and the subsection 44(2) referral. If I overturn either of those two decisions, the order deporting the applicant should not stand. Conversely, should I affirm those two decisions, the deportation order is valid. No separate submissions were made and no issue arises with respect to the deportation order.
STATUTORY SCHEME
[6]The applicant is a permanent resident of Canada who was convicted of a serious criminal offence. These two criteria bring him within paragraph 36(1)(a) of the IRPA. Paragraph 36(1)(a) is very concise:
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
In this case, the applicant was convicted of the possession of cocaine for the purposes of trafficking under subsection 5(2) of the Controlled Drugs and Substances Act. Under subsection 5(3), a person, if convicted, is liable to imprisonment for life. The applicant was convicted in Canada and sentenced to 30 months' imprisonment. He, therefore, meets the requirements set out in subsection 36(1)(a) that define serious criminality as being an offence which is either "punishable by a maximum term of imprisonment of at least 10 years" or "for which a term of imprisonment of more than six months has been imposed".
[7]Where the criteria in paragraph 36(1)(a) are met, the steps in the process that must be followed are set out in sections 44 and 45 of the IRPA. The first step is the decision of an immigration officer to prepare a report:
44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
[8]If a report is prepared, it must be sent to the Minister or the Minister's delegate to decide if the report is well-founded and whether it should be referred to the Immigration Division for an admissibility hearing:
44. . . .
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing. . . .
[9]Although section 45 defines the possible outcomes of the admissibility hearing, the only option possible for someone in the applicant's position is set out in paragraph 45(d):
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
. . .
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
[10]The IRPA specifically denies a right of appeal to the Immigration Appeal Division (the IAD) where a permanent resident is found to be inadmissible on the grounds of serious criminality:
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
BACKGROUND
[11]In analysing the issues before me, it is helpful to review some of the more relevant aspects of the history and the background of the concepts at issue. How would the applicant have been treated under the Immigration Act, R.S.C., 1985, c. I-2 (the former Act)? How have the new provisions been interpreted by CIC? How was the applicant treated under the IRPA?
Procedures under former Act
[12]Under the former Act, the applicant would have met the threshold set out in paragraph 27(1)(d) by virtue of having been convicted of an offence for which a term of imprisonment of more than six months has been imposed. Accordingly, the immigration officer was obliged to forward a written report to the Deputy Minister; that is, no discretion was allowed and the report had to be sent. Further, all that was to be contained in the report were "the details of any information . . . indicating that a permanent resident is a person who" was so convicted. The immigration officer was not mandated to consider any "relevant facts".
[13]The second step was a consideration by the Deputy Minister pursuant to subsection 27(3) [as am. by S.C. 1992, c. 49, s. 16]. The Deputy Minister could exercise some discretion in that he was to forward the report to a senior immigration officer if he considered it "appropriate to do so in the circumstances" and could direct that an inquiry be held by the senior immigration officer. Presumably, even in the case of someone in the position of the applicant, the Deputy Minister could determine that it was not appropriate to take the case any further.
[14]If there was a direction from the Deputy Minister that an inquiry be held, subsection 27(6) [as enacted idem] set out that the immigration officer was to cause such an inquiry to be held. The result of an inquiry was set out in subsection 32(2) [as am. by S.C. 1992, c. 49, s. 21]; a deportation order would have issued to the applicant.
[15]However, the applicant would have had one more chance to remain in Canada. He would have had a right of appeal to the IAD. Under paragraph 70(1)(b) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the former Act, a permanent resident subject to a removal order could appeal to the IAD "on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada". For those appellants convicted of a crime in Canada, the IAD was to take into account a wide range of factors including the following non-exhaustive list:
1. the seriousness of the offence;
2. potential foreign hardship;
3. the possibility of rehabilitation;
4. the length of time spent in Canada and the degree to which the appellant was established here;
5. the family in Canada and the dislocation to the family that deportation would cause; and
6. the support available to the appellant.
[16]These factors were commonly referred to as the "Ribic factors", since they were first stated in a decision of the Immigration Appeal Board in Ribic v. Canada (Minister of Employment and Immigration) [[1985] I.A.B.D, No. 4 (QL)]. These six factors were affirmed by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84.
[17]Section 64 of the IRPA now precludes appeals to the IAD in cases of "serious criminality". Because the applicant falls within section 64, he is not entitled to a hearing before the IAD. With the IRPA regime now in force, the question that remains is whether anyone, at any stage leading to removal, examines the Ribic factors? Or, is the result of serious criminality a direct route to deportation regardless of the circumstances? The effect of this Court's rulings in Correia v. Canada (Minister of Citizenship and Immigration) (2004), 253 F.T.R. 153 (F.C.) and Leong v. Canada (Solicitor General) (2004), 256 F.T.R. 298 (F.C.) appears to be that the Ribic factors cannot be considered under subsection 44(1) or (2) of IRPA. Those cases are discussed later in these reasons.
Departmental view of subsections 44(1) and (2) decisions
| (a) Parliamentary Committee Proceedings |
[18]The CIC officials, who had input into the drafting of the IRPA, are clearly of the view that all the factors were still to be considered in cases of serious criminality. They are also of the view that both the immigration officer acting under subsection 44(1) and the Minister's delegate under subsection 44(2) were responsible for this analysis. This subject was the focus of comments by Ms. Joan Atkinson, an Assistant Deputy Minister with CIC, delivered April 26, 2001, to the Standing Committee on Citizenship and Immigration [Evidence, 1st Sess., 37th Parl.]. The Committee was in the process of conducting hearings into Bill C-11 (IRPA). Ms. Atkinson's comments were as follows:
I think we need to clarify, first of all, the claim that some are making that the elimination of appeal rights for permanent residents who are convicted of a serious offence in Canada, for which a term of imprisonment of at least two years has been imposed, will result in the automatic removal of long-term permanent residents without any evaluation of the circumstances of the case. That is simply not true.
We have built and will continue to build safeguards into the system at the front end of the process to ensure that the circumstances of a person's situation are fully considered before any decision is taken to take any enforcement action against that individual.
. . .
Under Bill C-11 [s. 44(1)], the officer investigating the case of a permanent resident with serious criminality has new discretion right at the front end of the process not to write a report recommending that enforcement action be taken. The recommendation about looking at whether or not to consider writing a report is only taken after all the factors have been considered, after all the individual circumstances of the permanent resident have been considered. The length of time in Canada, the presence of family in Canada, the seriousness of the crime, the circumstances surrounding the commission of the offence, and so on, are all factors taken into account before a decision is taken, and will continue to be factors taken into account before a decision is taken.
The minister's delegate who reviews the case [s. 44(2)], as under the current act, will again consider all the circumstances of the case in determining whether or not to pursue that enforcement action. . . .
. . .
We think that the balance we have in Bill C-11 is the correct balance between finding ways to protect the safety and security of Canadians and allowing us to remove serious criminals quickly, and ensuring due process and ensuring sensitivity to particular circumstances of individuals before making those decisions.
[19]These comments could not be clearer; CIC believed that, under subsections 44(1) and (2), both the immigration officer and the Minister's delegate would take all the circumstances into account prior to engaging the removal process--specifically in the case of serious criminality.
| (b) Department Procedures Manual |
[20]This interpretation by CIC of subsections 44(1) and (2) has been reflected in the relevant chapters of the Department's Immigration Manual: Enforcement (ENF)--Chapter ENF 5: Writing 44(1) Reports and Chapter ENF 6: Review of Reports under A44(1).
[21]Chapter ENF 5 is intended to aid immigration officers in making a decision to write a subsection 44(1) report. Included as Appendix A to these reasons is a flowchart adapted from ENF 5 outlining CIC's understanding of the subsections 44(1) and (2) process. As is readily apparent from this flowchart, the CIC view is that the writing of a report by an officer and the subsequent referral by the Minister's delegate is only one option. Another stated option is that the officer or Minister's delegate, as applicable, may authorize a permanent resident to remain. The flowchart appears to be applicable for any type of inadmissibility covered in the IRPA whether due to misrepresentation, health issues or otherwise. There is no separate track for persons subject to serious criminality.
[22]In Chapter ENF 6, guidance is given to the Minister's delegate on how to exercise the discretion under subsection 44(2), in deciding whether to refer an immigration officer's report to the Immigration Division. Paragraph 19.2 sets out a non-exhaustive list of factors that "can be considered in both criminal and non-criminal cases". The list is as follows:
· age at time of landing;
· length of residence;
· location of family support and responsibilities;
· conditions in home country;
· degree of establishment;
· criminality; and
· history of non-compliance and current attitude.
[23]With respect to criminal cases, the Manual provides further advice to the Minister's delegate. While stating that "[t]he fact that a conviction falls within A36(1) [serious criminality] is itself an indication of its seriousness for immigration purposes", the Department asks the Minister's delegate to consider whether the crime involved violence, the person's criminal history, the length of the sentence and the potential for rehabilitation.
[24]Paragraph 19.3 of Chapter ENF 6, sets out a special review procedure for permanent residents who:
· became permanent residents before 18 years of age;
· were permanent residents for a period of 10 years before being convicted of a reportable offence; and
· would not have a right of appeal to the IAD by virtue of section 64 of IRPA.
For these persons, the subsection 44(2) referral decision must be made by the Director, Case Review, Case Management Branch, NHQ [National Headquarters].
[25]This set of procedures has, for the most part, been followed by CIC immigration officers prior to a decision being taken to refer a permanent resident to the Immigration Division for an admissibility hearing.
ISSUE No. 1: SCOPE OF DISCRETION
[26]The first issue involves statutory interpretation. What I must determine is whether subsections 44(1) and (2) of the IRPA, should be read to allow an immigration officer or Minister's delegate to consider other factors in the case of a permanent resident who is caught by the serious criminality provisions of section 36 of the IRPA. The modern approach to this task has been described as reading the relevant provisions in their entire context and in their grammatical and ordinary sense and harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament (E. A. Driedger, Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983, at page 87). I will keep that in mind as I proceed with this part of the analysis.
[27]Subsection 44(1) of the IRPA involves a two-step process; first the officer must form an opinion as to admissibility and, second, he or she must decide whether to prepare a report.
[28]Paragraph 36(1)(a) of the IRPA sits in stark contrast to almost all of the other inadmissibility provisions where some degree of judgment is required. When considering paragraph 36(1)(a), there is absolutely no residual discretion to be exercised before a determination is made as to whether someone is inadmissible. Specifically, paragraph 36(1)(a) is met if the permanent resident or foreign national has either been convicted in Canada of an offence with a maximum term of at least 10 years or of an offence for which a term of imprisonment of more than six months has been imposed. In either case, there can be no question. A sentence is a sentence. In light of a conviction by a court in Canada, the inevitable conclusion is that the offence occurred. Thus, on the basis of a simple reading of paragraph 36(1)(a), the applicant, who has been sentenced to 30 months for a crime with a maximum penalty of life imprisonment, is inadmissible on the grounds of serious criminality. There is no choice for the officer; he must be of the opinion that the person is inadmissible.
[29]In spite of this clarity regarding inadmissibility under paragraph 36(1)(a), subsection 44(1) allows a residual discretion in the immigration officer. Once the immigration officer reaches his opinion of inadmissibility, the officer "may prepare a report setting out the relevant facts". The IRPA does not set out what "relevant facts" would be. Nor does it confine the discretion of the officer in preparing a report. Parliament has not provided any direction to how these officials are to carry out their duties under these provisions.
[30]As noted above, my colleague in Correia, at paragraph 22, concluded that, in the case of serious criminality, the relevant facts relate solely to the fact of the conviction. His reasoning, at paragraphs 20-23, was the following:
The decision to make a report must be considered against the backdrop of this Division of the Act which has as its purpose the removal of certain persons from Canada. The discretion not to report must be extremely limited and rare otherwise it would give to officials a level of discretion not even enjoyed by the responsible Minister.
Whatever the scope of that discretion may be in any particular case in respect to different grounds of inadmissibility, with respect to serious criminality it is not the responsibility of the officer, by refusing to report his opinion, to effectively find a person to be "admissible" for reasons unrelated to serious criminality.
For purposes of the subsection 44(1) report, that report is restricted to the "relevant facts". In the case of serious criminality those facts relate to the fact of the conviction.
The nature of the inquiry does not involve issues of humanitarian and compassionate matters, rehabilitation or other such factors. It is a very limited inquiry being essentially a confirmation that the conviction was in fact handed down. After that the process for removal is engaged.
[31]I note, first, that Justice Phelan in Correia did not conclude that the immigration officer was precluded from considering anything beyond the conviction itself. This interpretation would strip subsection 44(1) of all its meaning. Rather, I read his decision as saying that the facts considered must be related to the criminal conviction. Even in cases of serious criminality, Parliament must have intended that the officer be allowed some discretion. Use of the word "may" confirms this intent. If Parliament had intended to strip the discretion from the officer in cases of serious criminality, it could have done so with explicit language. The question that remains is what is meant by the term "relevant facts". After reviewing the materials before me, I would not interpret "relevant facts" as narrowly as was done by my colleague.
[32]I had before me, as part of the record in this application, the transcript from the parliamentary Committee proceedings and the Department's Procedures Manual. I do not believe that either of these relevant documents was placed before the judges hearing Correia and Leong. These are, in my view, very relevant to the analysis and have been key to my conclusions which differ to some degree from those of my colleagues.
[33]In support of his position, the applicant proffered the transcript from the Committee proceedings on Bill C-11 and the CIC Manual. This evidence is described in detail above. As is readily apparent from a review of the Committee proceedings and the CIC Manual, the Department has never had any doubt as to how the relevant provisions of the IRPA are to be interpreted. In CIC's view, subsections 44(1) and (2) allow the officer and the Minister's delegate to exercise their discretion in a very broad manner. Even in cases of serious criminality as set out in section 36 of the IRPA, these public servants are to take into account "all the circumstances" of each case.
[34]This unequivocal view of the law by public servants speaking on behalf of CIC or writing manuals is not, as we know, determinative. The Supreme Court of Canada has cautioned against using parliamentary debates surrounding the enactment of legislation because "they are not always a reliable source for the legislature's intention" (Construction Gilles Paquette Ltée v. Entreprises Végo Ltée, [1997] 2 S.C.R. 299, at paragraph 20). Nevertheless, with this cautionary note, Hansard evidence can play a limited role in the interpretation of legislation: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at paragraph 35. Similarly, in Anderson v. Canada (Customs and Revenue Agency) (2003), 234 F.T.R. 227 (F.C.T.D.), at paragraph 31, Justice Dawson stated that "Hansard cannot establish the intent of Parliament, but it may provide relevant evidence as to the background and purpose of legislation". While the evidence of the Assistant Deputy Minister at the Committee hearings is not Hansard, it is reasonable to conclude that her interpretation of the provisions was accepted by the members of the Committee who then supported the passage of the Bill. Accordingly, it is appropriate to give this evidence some weight.
[35]Even though manuals and guidelines "are not binding on government institutions and even less so on the courts", they can offer opinion on the purpose or meaning of the legislation (Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 219 (C.A.), at paragraph 37).
[36]When I examine the procedures described by the Assistant Deputy Minister and in the Manual, I see a procedure that is in harmony with the IRPA. The factors listed in the Manual, in my view, have some relevance to the criminal conviction and are connected to the purpose of the IRPA. I see nothing in the objectives of the IRPA or within the inadmissibility provisions that states "One strike and you're out". Whether someone is likely to reoffend or to be rehabilitated, whether a person has a strong support network that can keep them on the straight and narrow in the future or whether this was a first conviction are all matters that relate to an assessment of whether, in spite of the serious criminality, this person is or is not going to help enrich and strengthen the social and cultural fabric of Canadian society (paragraph 3(1)(b) of the IRPA).
[37]Certainly, there is a balancing to be done in order to achieve other objectives of protecting the safety of Canadians and maintaining the security of Canadians (paragraph 3(1)(h)) and promoting "international justice and security . . . by denying access to Canadian territory to persons who are criminals" (paragraph 3(1)(i)). However, I do not read these objectives as automatically denying access to Canada to a person who has a criminal conviction. In this regard, I agree with the statement of Ms. Atkinson:
We think that the balance we have in Bill C-11 is the correct balance between finding ways to protect the safety and security of Canadians and allowing us to remove serious criminals quickly, and ensuring due process and ensuring sensitivity to particular circumstances of individuals before making those decisions.
[38]The result, when an officer determines that he or she is not going to prepare a report, does not change the fact that the person is inadmissible, as defined by the IRPA; it does not mean the person is "admissible". The practical effect of a decision by the officer not to prepare a report is that, in spite of being "inadmissible", as defined in IRPA, there are compelling reasons to allow that person to remain in Canada.
[39]My reasoning is the same with respect to the decision to be made by the Minister's delegate as to whether a report is well-founded, pursuant to subsection 44(2) of the IRPA.
[40]In spite of my interpretation of the relevant provisions, I do have a concern with the process to be followed. Under the former Act, the considerations of "all the relevant circumstances" was undertaken by the IAD, an independent, quasi-judicial body, whose decisions were reviewable by this Court. Where an appeal was allowed, the Minister and all affected parties could see, in the reasons, exactly why the permanent resident was being allowed to stay in spite of his serious criminality. A decision of the IAD set out the factors and its reasons. The IAD could place the permanent resident under strict conditions. Under the scheme now in place within CIC and described in the Manual, a decision to not refer made by an immigration officer would not likely ever see the light of day. As set out in paragraph 8.1 of Chapter ENF 5, the only trace of the officer's decision, under subsection 44(1) of the IRPA not to report would be as follows:
In rare instances, an officer may choose not to prepare a report with respect to a person who, in the opinion of the officer, is inadmissible on grounds involving . . . serious criminality. . . . In these cases, the officer should notify his/her supervisor in writing, and enter a Type 01 NCB--"Watch For" into the Field Operational Support System. . . . The non computer-based (NCB) entry should include full details of the inadmissibility, a brief account of what transpired and the officer's initials or name.
[41]It is one side of the delicate balance to argue that all the individual circumstances must be considered before a removal. However, the other side is the consequence flowing from the CIC interpretation that persons convicted of serious crimes may be allowed to stay in Canada with only a notation in the CIC file.
[42]While acknowledging this concern, I conclude that the scope of the discretion of an immigration officer under subsection 44(1) and of the Minister's delegate under subsection 44(2) is broad enough for them to consider the factors outlined in the relevant sections of the CIC procedural Manual. To the extent that some of these factors may touch upon humanitarian and compassionate considerations, I see no issue.
ISSUE No. 2: DUTY OF FAIRNESS
[43]Having concluded that the scope of the officer's or Minister's delegate's discretion extends beyond considering the fact of a conviction, the next question is one of the extent of the procedural fairness owed to an applicant as the officials carry out their functions under subsections 44(1) and (2) of the IRPA.
[44]The leading authority on the duty of fairness owed by officials is Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraphs 21-28. In assessing the duty of fairness, one should review the following:
· the nature of the decision being made and the procedures followed in making it;
· the nature of the statutory scheme;
· the importance of the decision to the individual affected;
· the legitimate expectation of the individual challenging the decision; and
· the choices of procedures made by the agency.
[45]As emphasized by Justice L'Heureux-Dubé in Baker, at paragraph 22:
. . . underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
Nature of the Decision
[46]Neither the officer's report under subsection 44(1) nor the subsection 44(2) referral constitutes the final decision to remove the applicant. After a referral under subsection 44(2) by the Minister's delegate, an inquiry--referred to as an admissibility hearing--is held before the Immigration Division. Pursuant to section 45 of the IRPA, the decision to make a removal order is made by the Immigration Division. In the case of the applicant, that inquiry was held.
[47]However, the options of the Immigration Division upon the subsection 44(2) referral, in a case of serious criminality, appear to be very limited. Paragraph 45(d) requires the Immigration Division to "make the applicable removal order against a . . . permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible". As discussed earlier in these reasons, under subsection 36(1) of the IRPA, the applicant is inadmissible; there is no room for any other finding. Once the subsection 44(2) referral is made to the Immigration Division, the only outcome of the inquiry, that I can see, is a removal order. Finally, an appeal to the IAD has been removed for persons in the position of the applicant. Thus, the only power to prevent the applicant's removal rested with the immigration officer and the Minister's delegate. Only if either one or the other of these two officials had decided not to take further action would the applicant be able to avoid the issuance of a removal order under paragraph 45(d).
[48]A review of the transcript from the applicant's admissibility hearing confirms the limited jurisdiction of the Immigration Division in the case of the applicant. After reviewing the details of the criminal conviction and the sentence imposed, the Immigration Division stated that, "This leaves me with no alternative but to order that you be deported from Canada". There was no ability for the Immigration Division to take related factors into account in the inquiry process.
[49]This apparent "finality" of the two decisions appears to support a higher duty of procedural fairness. Nevertheless, I also must consider relevant case law that has characterized these types of decisions as "purely administrative".
[50]The nature of analogous decisions under the former Act was considered by the Federal Court of Appeal in the case of Kindler v. MacDonald, [1987] 3 F.C. 34. The respondent submits that Kindler is relevant to the case before me; the applicant submits that the findings in Kindler do not apply. The hearing Judges in both Correia and Leong relied on Kindler to conclude that the decisions under subsections 44(1) and (2) were administrative in nature. I agree with my colleagues. For the reasons in the following paragraphs, I am of the view that, in spite of newly-worded provisions under IRPA, Kindler is applicable to the case before me.
[51]In Kindler, the Court of Appeal was considering the legality of decisions made under section 27 of the former Act by the immigration officer and the Deputy Minister leading up to an inquiry. Mr. Kindler argued that the Deputy Minister had an obligation to afford him a non-oral or paper hearing before issuing a direction under subsection 27(3) of the former Act. Under subsection 27(3) of the former Act, the referral decision of the Deputy Minister is very similar to the referral decision of the Minister's delegate under subsection 44(2) of the IRPA. The conclusion of the Federal Court of Appeal was that he did not have such a right.
[52]Although the facts of Kindler involved a person with no legal status in Canada, rather than a permanent resident, I believe that the reasoning in that case remains applicable to the provisions of the IRPA and to the facts before me. In considering the nature of the decisions in question, Justice MacGuigan stated, at page 39:
Whether it is the decision of the Deputy Minister under subsection 27(3) to issue a direction for an inquiry to a senior immigration officer, or the subsequent decision of a senior immigration officer under subsection 27(4) to cause that inquiry to be held, or the parallel decision of such an officer under section 28 to cause an inquiry to be held, it is, I believe, a purely administrative decision. The senior immigration officer does not even have to reflect on the question; he is merely a conduit through whom the inquiry is caused by operation of the Act. The Deputy Minister has only to decide that an inquiry is warranted, which he could do on the existence of a prima facie case. His decision is analogous to that of any prosecutor who decides to proceed with a charge before the courts. [Emphasis added.]
In his conclusions, Justice MacGuigan considered all of the decisions made prior to the inquiry itself to be "purely administrative".
[53]In the inquiry, as here, the possible outcomes of the inquiry were limited. At pages 41-42, Justice MacGuigan stated:
It is true that the sole question in issue before the immigration adjudicator at the inquiry would be whether the factual allegations against the respondent are true. If they are, the result, deportation, must follow, since subsection 32(6) of the Act precludes the adjudicator from considering special circumstances in determining whether to issue a deportation order in a case such as this. But in that respect the adjudicator is no different from many other triers of fact--the judge in a murder case, for example, who has no option as to imposing the penalty of life imprisonment if the facts are proved. What the adjudicator must do is scrupulously observe fairness in making his decision on the facts.
[54]Thus, even though the provisions have been amended and the final step of an appeal to the IAD removed, the analogies of the case before me to Kindler are evident. Under the current framework, all steps move towards an admissibility hearing, just as they did under the former Act. The outcome of this analysis and the applicability of Kindler is that the level of procedural fairness falls at the low end of the spectrum.
[55]The applicant draws the Court's attention to the decision of Cha v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 503, and submits that the reasoning of Cha, is inconsistent with the reasoning in Correia and Leong. This is inaccurate. Cha involved a foreign national, not a permanent resident, who received a fine and licence suspension for impaired driving. He was not sentenced to a term of imprisonment. These facts distinguish Cha, but more importantly, the decision being reviewed was only the decision to grant the deportation order, not the decision to report or the decision to refer. It is essential to maintain the distinction between these decisions as the legislation does.
[56]Accordingly, looking at the first of the Baker factors, I am persuaded that the nature of these administrative decisions favours a relatively low duty of fairness.
Nature of the Statutory Scheme
[57]The next of the Baker factors to be considered is the nature of the statutory scheme. As pointed out by Justice L'Heureux-Dubé in Baker, at paragraph 24, "Greater procedural protections . . . will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted".
[58]The provisions at issue before me are part of Division 4 of the IRPA entitled "Inadmissibility". Realistically speaking, it would be rare for someone convicted of serious criminality to complete the Division 4 procedure without receiving a removal order. Thus, the officer's report and the subsection 44(2) referral are, most often, determinative of the issue of whether the applicant is to be issued a removal order. Further, without a statutory right of appeal to the IAD, the applicant is unable to have a further consideration of the inadmissibility determination.
[59]It would be, however, artificial to consider the inadmissibility division in isolation from the rest of the IRPA, as it relates to the applicant. As was recognized by my colleagues in Correia and Leong, the applicant had the right to make an application to the Minister for an exemption on humanitarian and compassionate (H&C) grounds (section 25). He could have availed himself of a pre-removal risk assessment (section 112). Under both of these processes, the applicant would have been permitted to make submissions that would have been taken into account by the decision-makers. None of the officer's report, the subsection 44(2) referral or the removal order is the end of all possibilities for the applicant to remain in Canada. Viewing the statute as a whole, the decisions at issue in this proceeding are not necessarily determinative of whether the applicant will be removed from Canada.
[60]Accordingly, considering the rights of the applicant under sections 25 and 112, the nature of the statutory scheme ensures that the applicant need not be removed without consideration of H&C and risk factors. This favours a lower duty of procedural fairness.
Importance of the Decision to the Applicant
[61]There can be no question that the decisions of the immigration officer to prepare a report and of the Minister's delegate to refer that report to the Immigration Division are important to the applicant. As discussed, the outcome will be a removal order with no right of appeal to the IAD. The applicant points out that for someone in his position, who comes to Canada as a child and has been here for a long time, the decision has extreme importance. However, as noted above, the applicant had access to two other procedures where H&C factors and possibility of risk upon his return to the Philippines could have been considered.
Legitimate Expectations of the Individual Challenging the Decision
[62]The fourth factor in the Baker analysis is the legitimate expectation of the person challenging the decision. As stated at paragraph 26 of Baker, "[i]f the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness". Further, the circumstances affecting procedural fairness take into account the promises or "regular practices" of the decision makers. Finally, Justice L'Heureux-Dubé commented that "it will generally be unfair for them to act in contravention of representations as to procedure."
[63]In Baker, in examining this factor in the context of an immigration officer's decision on an H&C application, the argument before the Supreme Court was that the duty was heightened by the articles of an international convention. The Court rejected this argument.
[64]However, under both this factor and the fifth factor, the procedures set out in the Manual are relevant. Paragraph 8.7, Chapter ENF 5 of the Manual states that in making a subsection 44(1) report against a permanent resident:
. . . all persons who are or may be subject to a report are to be informed of the criteria against which their case is being assessed and the possible outcome of the review (including the possibility of loss of appeal rights in A64 cases . . . ). They should also be given the opportunity to provide information. This can be done by way of in-person interview or in writing. For submissions in writing, sufficient time should be allowed for receipt by way of regular mail.
[65]Paragraph 12.3 provides that:
. . . an officer who writes a report must also provide a copy of that report to the person concerned.
. . .
It is accepted in the context of "natural justice" that persons who are reported under A44(1) should fully understand both the case against them and the nature and purpose of the report.
[66]Two important elements of the procedures set out in the Manual are: (1) the right to make submissions, either orally during an interview or in writing; and (2) the right to receive a copy of the report.
[67]Given that the Manual sets out the "practices" of CIC and given that the Manual is available to the public on the CIC Web site, it is reasonable to conclude that an affected person has an expectation that these two elements would be included in the duty of fairness afforded to each person. This appears to set the bar for the duty of fairness at something more than merely acting in good faith, as the Court in Kindler determined. This is not unreasonable now that the Supreme Court, in Baker, has given us more guidance on the matter of procedural fairness.
Choice of Procedures by CIC
[68]Justice L'Heureux-Dubé, at paragraph 27 of Baker, stated that this analysis should "take into account and respect" the choice of procedures made by the agency itself. She continued by stating that, while this was not determinative, "important weight must be given to the choice of procedures made by the agency itself".
[69]In this case, CIC has adopted the procedures described above. Baker teaches us that weight should be given to these choices.
Application to subsections 44(1) and (2) Decisions
[70]Balancing all of these factors, I find that they point toward a more relaxed duty of fairness, similar to that found by the Supreme Court in Baker. In my view, the duty of fairness implicitly adopted by CIC for purposes of the subsection 44(1) report is appropriate. Although these are administrative decisions (rather than quasi-judicial) and although the person affected has some other rights to seek to remain in Canada, these are serious decisions affecting his rights. CIC, whose choice of procedures should be respected, has elected to give the affected person a right to make submissions, either orally or in writing and to obtain a copy of the report. Having a copy of the report would allow the affected person to decide whether he wishes to seek judicial review of the immigration officer's report to this Court. This, I conclude is the duty of fairness owed the applicant and others in his position with respect to the officer's report.
[71]Implicit in this duty is, in my view, a requirement that the person being interviewed by an immigration officer is informed of the purpose of that interview so that he may make meaningful submissions. Further, I would think that the duty of fairness would require the immigration officer put to the interviewee any information he has that the interviewee would not reasonably be expected to have. A further implication is that the person should be offered the opportunity to have counsel present at any interview or to assist him in preparing written submissions. All of this is part of what CIC has acknowledged is required for the person to "fully understand both the case against them and the nature and purpose of the report".
[72]Given my conclusion that the duty of fairness is "relaxed", there are a number of procedures that are not essential. As was concluded in Baker, I would agree that an oral interview by the immigration officer is not always required, as long as the affected person is given an opportunity to make submissions and to know the case against him. Nor do I believe that the duty requires that the officer's report be put to the applicant for a further opportunity to respond prior to the subsection 44(2) referral. The duty of fairness in this case does not reach the same level as in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 3 (C.A.).
ISSUE No. 3: APPLICATION OF THIS DUTY OF FAIRNESS TO THE APPLICANT
[73]In the case before me, the applicant, in his affidavit, sets out that an immigration officer came to interview him on November 20, 2003. He maintains that he did not know that the purpose of the interview was to prepare a subsection 44(1) report, that he was never told the criteria on which he was being assessed and that he was not given an opportunity to make submissions opposing his removal from Canada. He states that, while he was told he could have counsel for an inquiry, he was not advised on whether he could have counsel represent him on the issue of whether his case should be referred to an inquiry. The applicant acknowledges that he was asked questions. However, he argues that he would have liked to have made submissions on: the closeness of his family relationships, the information that he was on day parole; his integration into society and to rebut the conclusion that he has no proven means of support.
[74]The applicant was not cross-examined on his affidavit. Nor do I have an affidavit from the immigration officer setting out a different version of the procedures followed in this case.
[75]The officer's notes indicate that he was sensitive to the issues and the related facts. Nevertheless, it is unclear whether the applicant was made aware of these matters.
[76]On the basis of the evidence before me, I am not satisfied that the immigration officer provided the applicant with the appropriate level of procedure fairness. There were three errors:
1. The applicant was not advised of the purpose of the interview;
2. He was not allowed to make submissions; and
3. He was not given a copy of the officer's report.
[77]For these reasons, the officer's report should be quashed. In light of the errors in the officer's report, it is impossible to determine whether the subsection 44(2) referral would have been different had the correct procedures been followed at the subsection 44(1) reporting stage. Thus, I would quash that decision as well.
[78]The respondent concedes that, if either the officer's report or the subsection 44(2) referral is found to be invalid, the Immigration Division will have had no jurisdiction to proceed with the applicant's admissibility hearing and no jurisdiction to issue the deportation order against him. I agree and will allow the application to quash that decision as well.
CONCLUSION
[79]In summary, it is my view that the officer acting under subsection 44(1) and the Minister's delegate acting under subsection 44(2) have the discretion to consider facts related to the applicant beyond the fact of his conviction. I also conclude that the officer did not satisfy the requirements of the duty of fairness that arise in the context of subsection 44(1) decisions. Orders will issue allowing all three applications.
[80]Recognizing that the question of discretion under subsections 44(1) and (2) of the IRPA will now be subject to somewhat conflicting jurisprudence and that this decision will raise issues of general importance, the applicant and respondent jointly proposed that I certify questions. I have stated these questions as follows:
1. What is the scope of: (a) the immigration officer's discretion under subsection 44(1) of the IRPA in making a decision as to whether to prepare a report to the Minister (or, as in this case, the Minister's delegate); and (b) of the discretion of the Minister's delegate, under subsection 44(2) of the IRPA, in making a decision as to whether to make a referral to the Immigration Division for an inquiry?
2. What is the duty of fairness owed in respect of: (a) the immigration officer's decision on whether to prepare a report under subsection 44(1) of the IRPA; and (b) the decision of the Minister's delegate as to whether to refer such report to the Immigration Division under subsection 44(2) of the IRPA?
[81]In my view, these questions are determinative in this case and would be of general importance as CIC officials continue to struggle with their obligations under the IRPA. I believe it would be of benefit for the Court of Appeal to consider these questions.
APPENDIX A /
ANNEXE A
ENF 5 Writing 44(1) Reports /
ENF 5 Rédaction des rapports en vertu du L44(1)
7. Immigration and Refugee Protection Act--Subsection A44(1) Process * /
7. Loi sur l'immigration et la protection des réfugiés--Procédures en vertu du L44(1)
| In Canada -- Officer examination interview or review Citizenship and Immigration Canada (CIC) / Au Canada -- Agent de contrôle entrevue ou contrôle Citoyenneté et Immigration Canada (CIC) |
| Determine admissibility / Détermine l'admissibilité |
| Authorization to enter or remain / Autorisé à entrer ou à rester |
Direction to leave Direct back to USA Allow withdrawal (Port of entry only) / Direction du départ, Renvoi temporaire aux É.-U., Permet le retrait point d'entrée seulement |
Write subsection A44(1) report / Rapport écrit paragraphe A44(1) |
Restoration of status / Rétablissement du statut |
| Review by the Minister's delegate / Contrôlé par le représentant du Ministre |
| Authorization to enter or remain / Autorisation d'entrer ou de rester |
Direct back to USA -- Allow withdrawal (port of entry only) / Renvoi temporaire au É.-U., Permet le retrait (Point d'entrée seulement) |
Admissibility hearing / Enquête |
Removal order in specific circumstances as prescribed by Regulations / Mesure de renvoi conditions particulières imposées par le Règlement |
Suspend or defer consideration of the report indefinitely (Sine Die) / Reporter ou différer l'examen du rapport indéfiniment (Sine Die) |
| Authorization to enter or remain / Autorisation d'entrer ou de rester |
Removal order / Renvoi temporaire |
* edited to reflect the facts of this case
* Modifié pour tenir compte des faits de la présente affaire