Judgments

[1993] 2 F.C. 620

T-990-92

Minister of Employment and Immigration (Applicant)

v.

Victor Eberechu Agbasi, Eugenia Nwagabi Agbasi, Winifred Agbasi, Charles Agbasi, John Bosco Agbasi and Catherine Agbasi (Respondents)

Indexed as: Canada (Minister of Employment and Immigration) v. Agbasi (T.D.)

Trial Division, Dubé J.—Vancouver, January 19; Ottawa, February 8, 1993.

Citizenship and Immigration — Status in Canada — Convention refugees — Immigration practice — Respondent subject of report for working illegally — Visa extension pending completion of inquiry denied — Respondent not claiming Convention refugee status at inquiry, preferring to accept departure notice, move to U.S.A. — Application for American visa refused as not holding valid Canadian visa — At inquiry arising for overstaying visa, respondent claiming Convention refugee status — S. 43(2) prohibition against claiming refugee status applying only to inquiry in progress — S. 46.01 criteria for ineligibility to have claim determined by Refugee Division not including mere fact of having been subject of more than one inquiry — Adjudicator and Refugee Division member having authority, responsibility to make Constitution Act, 1982, s. 52 determination applicable only to parties before it.

Constitutional law — Charter of Rights — Life, liberty and security — Eligibility and credible basis tribunals under Immigration Act to determine whether legislation violating Charter rights in circumstances — Visa extension pending inquiry at which exonerated of allegations of working illegally, denied — Respondent overstaying visa due to refusal to extend — Departure notice issued — Application of s. 46.01(1)(f), designed to prevent successive or unfounded claims, inconsistent with Charter, s. 7.

This was an application to review the decision of an adjudicator and a member of the Refugee Division (the Tribunal). Victor Agbasi entered Canada from Nigeria in 1986 with authorizations to study and work at the University of British Columbia. His wife and children arrived in 1987. Both the student and employment authorizations were extended to September 30, 1989. In January 1989, he secured employment at Fantasy Gardens, as a result of which he was reported under Immigration Act, paragraph 27(2)(b) as a person who had worked illegally. In September 1989, immigration officials denied Agbasi’s application for a visa extension pending completion of the inquiry. At the inquiry, convened in September 1990 he did not claim Convention refugee status, opting instead to accept a departure notice, believing that he would be able to move to the United States. Agbasi was not found to have worked illegally, but because his Canadian visa had expired, he was found to be a person who had remained in Canada after ceasing to be a visitor. A departure notice issued. Agbasi’s application for an American visa was refused on the ground that he did not hold a valid Canadian visa. When Agbasi did not leave Canada, he was reported as a person who had not left Canada on or before the date specified in the departure notice. At the second inquiry Agbasi claimed Convention refugee status. Subsection 43(1) provides that the adjudicator shall give the subject of the inquiry an opportunity to claim Convention refugee status before any substantive evidence is given. If no such claim is made, the inquiry shall be continued and no such claim shall thereafter be considered at that inquiry or subsequently upon any application, appeal or other proceeding arising therefrom (subsection 43(2)). Paragraph 46.01(1)(f) provides that a Convention refugee claimant is not eligible to have the claim determined by the Refugee Division if a departure notice has issued and the claimant has not left Canada. Constitution Act, 1982, section 52 provides that any law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect. The Tribunal held that paragraph 46.01(1)(f) was enacted to prevent abuse of the Convention refugee process i.e. manifestly unfounded claims and as Agbasi had never made a claim he was not abusing the system. The procedural scheme requires an oral hearing. To deny Agbasi the right to have access to the Convention refugee determination process would breach his Charter, section 7 right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. The Tribunal further found that Immigration Act, paragraph 46.01(1)(f) was inconsistent with the Constitution and of no force and effect with respect to Agbasi.

The Minister argued that the Federal Court of Appeal had already established that neither the provisions for eligibility criteria to the Convention refugee determination process nor paragraphs 46.01(1)(c) and (f) contravene Charter, section 7, and that the Tribunal’s construction of paragraph 46.01(1)(f) was patently unreasonable.

Held, the application should be dismissed.

The prohibition in subsection 43(2) applies only to the inquiry in progress, not to any subsequent inquiries. Subsection 46.01(1) does not include the mere fact of having been the subject of more than one inquiry among the factors barring eligibility to make a claim.

The conclusion arrived at by Marceau J.A. in Berrahma v. Minister of Employment and Immigration, that Parliament’s establishing of criteria for eligibility to claim Convention refugee status did not constitute infringement of Charter, section 7, did not amount to a finding that disposed of every case in which the application of eligibility criteria might be open to a Charter challenge. The automatic application of the criteria would be inconsistent with the principles of fundamental justice. The Tribunal’s decision was not stated in terms of constitutional exemption, but in terms mandated explicitly by section 52 of the Charter. The Tribunal had no authority to, and did not make a pronouncement of exemption applicable to a class of cases sharing similar characteristics. It did have the authority and the responsibility to make a section 52 determination applicable only to the parties before it, the effect of which would be to exempt the parties from the application of a given provision on constitutional grounds. It had a duty not to apply legislation which violates Charter rights. The Tribunal’s decision will not provoke future tribunals to exercise a broad discretion as to whether or not paragraph 46.01(1)(f) should be applied.

Eligibility and credible basis tribunals must consider Charter values in the circumstances of each case in order to determine whether fundamental justice has been observed. If it has not, the legislation must “yield to the dictates of section 7”. It would be manifestly unfair to prevent Agbasi from making a claim to Convention refugee status. That unfairness arose essentially from the way in which Agbasi came to be issued the departure notice, which brought him within the scope of paragraph 46.01(1)(f) and eliminated his eligibility to claim refugee status. The departure notice was issued solely because he had overstayed his visa, due to the refusal by Immigration officials to extend his visa pending the outcome of an inquiry at which he was exonerated of the allegations against him. Had the visa been extended, there would have been no grounds for the issuing of a removal order once Agbasi was cleared of the original allegation and paragraph 46.01(1)(f) would not have applied to prevent a subsequent claim for Convention refugee status. The application to Agbasi of paragraph 46.01(1)(f), a provision introduced to prevent successive or manifestly unfounded claims, would be inconsistent with the section 7 requirements as outlined in the case law.

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], s. 7.

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

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Immigration Act, R.S.C., 1985, c. I-2, ss. 27(2), 32(7) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11), 32.1 (as enacted idem, s. 12), 33 (as am. idem), 43 (as am. idem, s. 14), 46 (as am. idem), 46.01(1) (as enacted idem; S.C. 1992, c. 1, s. 73).

CASES JUDICIALLY CONSIDERED

APPLIED:

Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317; 10 Imm. L.R. (2d) 1; 104 N.R. 50 (C.A.); Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581; (1991), 85 D.L.R. (4th) 166 (C.A.); Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1.

DISTINGUISHED:

Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.); Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288; (1990), 44 Admin. L.R. 264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.); Longia v. Canada (Minister of Employment and Immigration), A-1059-90, Mahoney J.A., judgment dated 23/9/91, F.C.A., not yet reported.

CONSIDERED:

Bains v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 487; (1989), 61 D.L.R. (4th) 573; 47 C.R.R. 361; 8 Imm. L.R. (2d) 165 (C.A.); Mattia v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 492; (1987), 10 F.T.R. 170 (T.D.); R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577; (1991), 7 C.R. (4th) 117; 128 N.R. 81.

REFERRED TO:

Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94; [1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC 17,002; 118 N.R. 340; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep. 790; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1; Armadale Communications Ltd. v. Adjudicator (Immigration Act), [1991] 3 F.C. 242; (1991), 83 D.L.R. (4th) 440; 14 Imm. L.R. (2d) 13; 127 N.R. 342 (C.A.); Canada (Minister of Employment and Immigration) v. Chung, A-535-91, Linden J.A., judgment dated 21/12/92, F.C.A., not yet reported.

APPLICATION to review the decision of an adjudicator and Refugee Division member that to deny the respondent access to the Convention refugee determination process would violate his Charter, section 7 right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. Application dismissed.

COUNSEL:

Esta Resnick for applicant.

Phillip Rankin for respondents.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Rankin & Bond, Vancouver, for respondents.

The following are the reasons for order rendered in English by

Dubé J.: The issue in this application for judicial review[1] by the Minister of Employment and Immigration (the Minister) is whether an adjudicator and a member of the Refugee Division, sitting in February 1992 as an eligibility and credible basis tribunal (the Tribunal), committed a reviewable error[2] in deciding that to deny the respondent Victor Agbasi (Agbasi) access to the Convention refugee determination process would, in the circumstances of the case, violate his rights under section 7 of the Canadian Charter of Rights and Freedoms (the Charter) [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]].

The Tribunal found that paragraph 46.01(1)(f) of the Immigration Act[3] (the Act) was inconsistent with the Constitution and of no force and effect with respect to Agbasi, and held that he was eligible to proceed with his claim to Convention refugee status.

1.         The law

The following statutory provisions are relevant to the tribunal’s finding. Subsections 43(1) and (2) of the Act [as am. idem] entitle a person to claim to be a Convention refugee during the course of an inquiry:

43. (1) Before any substantive evidence is given at an inquiry, the adjudicator shall give the person who is the subject of the inquiry an opportunity to indicate whether or not the person claims to be a Convention refugee.

(2) Where, on being given an opportunity pursuant to subsection (1), the person who is the subject of the inquiry does not claim to be a Convention refugee, the inquiry shall be continued and no such claim by that person shall thereafter be received or considered at that inquiry or any application, appeal or other proceeding arising therefrom.

Subsection 46(1) [as am. idem] outlines the determinations to be made by an adjudicator alone or with a member of the Refugee Division:

46. (1) Where an inquiry is continued or a hearing is held before an adjudicator and a member of the Refugee Division,

(a) the adjudicator shall, in the case of an inquiry, determine whether the claimant should be permitted to come into Canada or to remain therein, as the case may be;

(b) the adjudicator and the member shall determine whether the claimant is eligible to have the claim determined by the Refugee Division; and

(c) if either the adjudicator or the member or both determine that the claimant is so eligible, they shall determine whether the claimant has a credible basis for the claim.

Subsection 46.01(1) [as enacted idem; as am. by S.C. 1992, c. 1, s. 73] enumerates the criteria governing access to the Convention refugee determination process:

46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Divison if

(a) the claimant has been recognized by any country, other than Canada, as a Convention refugee and has been issued a valid and subsisting travel document by that country pursuant to Article 28 of the Convention;

(b) in the case of a claimant who is the subject of an inquiry caused pursuant to paragraph 23(4)(a), the claimant came to Canada from a country, other than the country of the claimant’s nationality or, where the claimant has no country of nationality, the country of the claimant’s habitual residence,

(i) that has been prescribed as a country that complies with Article 33 of the Convention either universally or with respect to persons of a specified class of persons of which the claimant is a member, and

(ii) whose laws or practices provide that all claimants or claimants of a particular class of persons of which the claimant is a member would be given lawful authority to be in that country, if removed from Canada, or would have the right to have the merits of their claims determined in that country;

(c) the claimant has, since last coming into Canada, been determined

(i) by the Refugee Division, the Federal Court of Appeal or the Supreme Court of Canada not to be a Convention refugee or to have abandoned the claim, or

(ii) by an adjudicator and a member of the Refugee Division as not being eligible to have the claim determined by that Division or as not having a credible basis for the claim;

(d) the claimant has been finally determined under this Act, or determined under the regulations, to be a Convention refugee;

(e) the claimant is

(i) a person described in paragraph 19(1)(j),

(ii) a person

(A) described in paragraph 19(1)(c), or

(B) who has been convicted in Canada of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed

who the Minister has certified constitutes a danger to the public in Canada, or

(iii) a person described in paragraph 19(1)(e), (f) or (g), or 27(1)(c) or 2(c) and the Minister is of the opinion that it would be contrary to the public interest to have the claim determined under this Act; or

(f) in the case of a claimant to whom a departure notice has been issued, the claimant has not left Canada or, having left Canada pursuant to the notice, has not been granted lawful permission to be in any other country.

Section 7 of the Charter and subsection 52(1) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K) [R.S.C., 1985, Appendix II, No. 44]] stipulate the legal rights of everyone and the primacy of the Constitution of Canada:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

…

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

2.         The facts

A concise overview of the respondents’ immigration history is essential to the comprehension of the decision under review and of the reasons for my judgment.

Agbasi left his native Nigeria following incidents of detention and questioning by State Security Services because of his pro-union activities. He entered Canada in August 1986 with authorizations to study and work at the University of British Columbia. His wife (Eugenia) and their four small children entered Canada as visitors in May 1987. Both Agbasi’s student and employment authorizations were extended to September 30, 1989.

In January 1989, Agbasi secured employment at Fantasy Gardens in British Columbia. As a result, in August 1989 he was the subject of a report under paragraph 27(2)(b) of the Act, as a person who had engaged in employment contrary to the Act. In September 1989, Agbasi’s application for a visa extension pending completion of the inquiry was denied by immigration officials. At the inquiry convened in September 1990, he did not make a claim to Convention refugee status when given the opportunity to do so under section 43 of the Act. Instead, Agbasi opted to accept a departure notice, believing he and his family would be able to move to the United States.

At the conclusion of inquiry proceedings, the original paragraph 27(2)(b) allegation was held to be unfounded: Agbasi was not found to have engaged in employment contrary to the Act. However, because his Canadian visa had expired, he was found to be a person described in paragraph 27(2)(e) of the Act, that is, a person who entered Canada as a visitor and who remained in Canada after having ceased to be a visitor. A departure notice was issued against Agbasi.[4]

Agbasi then applied for an American visa to enter the United States. His application was refused on the ground that he was not the holder of a valid Canadian visa. The reason was, as previously mentioned, that Agbasi’s September 1989 application for a visa extension had been denied by Immigration. In the result, Agbasi and his family did not leave Canada for the United States as planned and were reported under paragraph 27(2)(i) of the Act, as persons who had not left Canada on or before the date specified in the departure notice. At the second inquiry, Agbasi admitted to the accuracy of the report against him and claimed Convention refugee status.

3.         The Tribunal’s decision

Before the Tribunal, the Minister’s representative argued that Agbasi was ineligible to claim Convention refugee status. He had failed to act on the opportunity to make a claim at the September 1990 inquiry, under section 43 of the Act, and was now precluded from doing so by the operation of paragraph 46.01(1)(f) of the Act, because a departure notice had been issued against him and he had not left Canada.

Counsel for Agbasi argued that the Tribunal should refrain from applying that provision in the circumstances of the case, because to apply it would be to violate Agbasi’s rights under section 7 of the Charter. The constitutionality per se of paragraph 46.01(1)(f) was not challenged. Counsel maintained that Agbasi had not claimed Convention refugee status in September 1990 because he had decided to opt for voluntary departure to the United States, a reasonable alternative which he had been unable to realize owing to the denial of an extension to his Canadian visa. Agbasi had not understood that his failure to make a claim at the commencement of that initial inquiry would act as a bar to any future claim. Denying Agbasi access to the Convention refugee determination process would not meet the general objective underlying subsection 46.01(1) to prevent successive or manifestly unfounded claims. The Agbasis had not made such claims. Denying them the opportunity of an oral hearing of their claim would be contrary to the principles of fundamental justice.

The Minister’s representative contended that Agbasi should have realized the implications of his choice at the September 1990 inquiry, as he was an educated man and had been represented by counsel.

The Tribunal’s joint decision reads, in its relevant portions, as follows:

[I]t’s well understood that the Singh decision led to substantial changes in legislation in Canada in the way refugee determination is made. Oral hearing is central to these changes. At the same time, when these changes were made, it was understood that certain criterias [sic] of eligibility and the first level hearing of credible basis were introduced to deal with manifestly unfounded claims and also to prevent blatant abuse. Nothing before us is to indicate that 46.01(1)(f) is in place other than to prevent such abuse. In this particular case, Mr. Agbasi … did not make … a refugee claim, at this first inquiry. The Panel does not conclude that … he did not have a claim, but rather, he chose to use another option to stay outside his country. This option ultimately proved to be unobtainable because of the outcome of the inquiry. It is credible that [Agbasi] did not comprehend or fully appreciate the consequences of choosing that option. The question is, should he be denied the opportunity for an oral hearing at this time to determine credible basis because he failed to make a refugee claim at the first inquiry? Clearly, the Agbasi family is not abusing the process by making a claim a second or third time. He has never made a claim prior to this.

The issue before us is, does 46.01(1)(f) apply … in his particular circumstances? … We believe that the procedural scheme which was developed as a result of the Singh decision requires an oral hearing at some stage of the proceedings before a body or officials empowered to hear that claim. Is it fair and sound that a person such as Agbasi be denied that opportunity simply because he made what proved to be an unfortunate choice? In the circumstances of this particular case, we find that denying him the right to have access to the refugee process would breach his Section 7 rights, and as a result, 46.01(1)(f) is inconsistent with the provisions of the Constitution and is, the extent [sic] of the inconsistency, of no force and effect. In this case, we find you eligible to make a claim.

The matter of eligibility having been determined by the Tribunal, the Minister’s representative informed the Tribunal of the Minister’s position that there was evidence of a credible basis to Agbasi’s claim, and the Tribunal so determined.[5] Conditional deportation orders were issued.[6]

The matter was scheduled for hearing on June 29, 1992 before the Convention Refugee Determination Division (CRDD). Leave to commence the present proceedings having been granted by Pinard J. in April 1992,[7]. the CRDD hearing was adjourned, upon application by the Minister, pending the outcome of the instant application.

4.         The Minister’s position

The Minister does not question the Tribunal’s jurisdiction, under section 52 of the Constitution Act, 1982, to consider Charter questions and to decide that, in the case of a Charter violation, a section of the Immigration Act is of no force and effect under the circumstances of the case before it.

However, the Minister does challenge the merits of the decision, essentially on two fronts. First, the Federal Court of Appeal had already established, in the Berrahma,[8] Longia (No. 1)[9] and Longia (No. 2)[10] cases, that neither the provisions for eligibility criteria to the Convention refugee determination process, nor the specific criteria listed at paragraphs 46.01(1)(c) and (f) contravene section 7 of the Charter.

Secondly, counsel for the Minister argued it would be inappropriate to exempt Agbasi and his family from the operation of the law on the basis that they failed to understand the consequences of their decision at the initial inquiry. In her view, the Tribunal’s construction of paragraph 46.01(1)(f) of the Act was patently unreasonable: the rationale for paragraph 46.01(1)(f) was the prevention of successive claims “on the theory that a Claimant is obliged to make his or her claim at the first inquiry”.[11] The Tribunal’s decision allowed Agbasi to avoid the requirement of subsection 43(2), and the effect of the decision would be to leave it to the discretion of first level tribunals as to whether paragraph 46.01(1)(f) should be applied in any given case.

Counsel argued that the case did not meet the criteria for the granting of a constitutional exemption established by the Supreme Court of Canada in R. v. Seaboyer; R. v. Gayme.[12] She further maintained that the Agbasis’ situation was not among the grounds for according a constitutional exemption for a section 7 violation, as restricted by the Federal Court of Appeal in Kaur v. Canada (Minister of Employment and Immigration)[13]. and Grewal v. Canada (Minister of Employment and Immigration).[14]

5.         The respondents’ position

Counsel for Agbasi emphasized that the constitutional validity of paragraph 46.01(1)(f) of the Act had not been at issue before the Tribunal and was not at issue before the Court, since Agbasi had sought only not to have the provision applied to him. He distinguished the cases cited by counsel for the Minister, on the basis that in those cases the constitutionality per se of the provisions of subsection 46.01(1) had been under attack. Those cases had not dealt with the issue of whether, on the facts, it would be manifestly unfair or fundamentally unjust to deny access to the claimants in question. It remained open to the Tribunal to find paragraph 46.01(1)(f) inoperative on the facts of the Agbasis’ case.

Counsel also refuted the Minister’s position that the grounds for granting a constitutional exemption in the case of a section 7 violation have been closed by previous decisions of the Federal Court of Appeal, since other cases such as that of the Agbasis might arise in which a constitutional exemption is necessary to protect section 7 rights. Further, the exemption requested was not a class exemption capable of general application such as the exemption at issue in the Seaboyer case.

He argued that on the particular facts of the case, paragraph 46.01(1)(f) violated Agbasi’s entitlement to fundamental justice in the adjudication of his status, in a manner analogous to the infringement recognized by Wilson J. and two other justices of the Supreme Court of Canada in the case of Singh et al. v. Minister of Employment and Immigration.[15] In his view, the section 7 violation in the Agbasis’ case might be more serious than that at issue in Singh, because whereas in that case, the Convention refugee claimant was granted a substantive right which was procedurally deficient, in the Agbasis’ case both the substantive right and the procedural right were being denied: Agbasi would not be given the chance to state his case in any form whatsoever if paragraph 46.01(1)(f) were applied to him.

In addition to Singh, counsel cited other cases in support of the role of the Charter and of fundamental justice in the immigration process, including the Kaur and Grewal cases. Finally, counsel for Agbasi argued that the Tribunal’s decision was not patently unreasonable. He stressed that in seeking to be exempted from the application of paragraph 46.01(1)(f), the Agbasis were not attempting to circumvent or abuse the system, but were rather seeking an opportunity to present a claim to Convention refugee status.

6.         Analysis

The Minister’s contention that a claim to Convention refugee status must be made at the first inquiry to which a person may be subjected is not supported by the terms of subsection 43(2) of the Act. The provision states that when a person has failed to indicate at the commencement of an inquiry whether or not he or she claims to be a Convention refugee “no such claim by that person shall thereafter be received or considered at that inquiry or any application, appeal or other proceeding arising therefrom” [Emphasis added]. Clearly, the prohibition applies only to the inquiry in progress, rather than to any subsequent inquiries to which a person may be subjected. It is also clear, from a reading of the ineligibility criteria listed at subsection 46.01(1) of the Act that the provision does not include the mere fact of having been the subject of more than one inquiry among the factors barring eligibility to make a claim.

Turning now to the previous case law concerning paragraphs 46.01(1)(c) and (f) of the Act, I note that in Longia (No. 1), the first of these cases to be decided, the facts giving rise to the application occurred prior to the coming into effect of subsection 46.01(1), and no Charter issues were raised. In affirming the Immigration Appeal Board’s finding of want of jurisdiction to reopen a redetermination hearing, Marceau J.A. observed in obiter that it did not appear to him that Parliament’s prohibition of successive claims to Convention refugee status in paragraph 46.01(1)(c) of the new Act could be seen as a violation of Charter rights.

In Berrahma, the issue was whether paragraph 46.01(1)(c), reproduced above, dealing with one of the access criteria, was unconstitutional owing to violation of section 7 of the Charter. Paragraph 46.01(1)(c) was considered with subsection 46.01(5), related to a Convention refugee claimant returning to Canada, which reads:

46.01. …

(5) A claimant who goes to another country and returns to Canada within ninety days shall not, for the purposes of paragraph (1)(c), be considered as coming into Canada on that return.

The circumstances were that Berrahma had made a claim to Convention refugee status in 1989, had been found not to be a Convention refugee, and had left the country in February 1990. He returned to Canada in April 1990 and attempted to claim Convention refugee status a second time. The tribunal applied the above provisions, which were found to be constitutional. The Federal Court of Appeal denied the application to quash that decision.

Relevant distinctions between the situation in which the issue of fundamental justice was considered in Berrahma and the context of the instant application include the facts that Berrahma had already made a claim to Convention refugee status, the claim had been determined against him and, had he waited the ninety day period provided in subsection 46.01(5) before returning to Canada, he would have been entitled to make a second claim.

The brief reasons for judgment in Longia (No. 2) do not establish the factual context of the case, wherein Mahoney J.A. concluded that:

In so far as the alleged conflict between paragraph 46.01(1)(f) of the Immigration Act and section 7 of the Canadian Charter of Rights and Freedoms is concerned, this case is not to be distinguished from Berrahma v. Minister of Employment and Immigration …

Since the case is not to be distinguished from Berrahma, I assume the applicant Longia had made a prior claim to Convention refugee status, and that the constitutionality of paragraph 46.01(1)(f) was at issue. The present application may be distinguished with respect to both aspects. Further, there is no basis on which to suppose the circumstances of Longia (No. 2) are similar to those at issue in the present proceedings.

Marceau J.A.’s conclusion in Berrahma that Parliament’s establishing of criteria for eligibility to claim Convention refugee status does not constitute infringement of section 7 of the Charter does not, in my view, amount to a finding that disposes of each and every case in which the application of eligibility criteria might be open to a challenge on Charter grounds. To appreciate why this is so, one needs only to consider the vast variety of circumstances affecting actual or potential Convention refugee claimants. It is conceivable that notwithstanding the validity of general criteria determining access, the automatic application of those criteria would, under certain circumstances, be inconsistent with considerations of fundamental justice. To this extent I am in agreement with the position of counsel for Agbasi, that Berrahma and Longia (No. 2) do not preclude a finding that paragraph 46.01(1)(f) is inoperative on the facts of a case under section 52 of the Constitution Act, 1982.

In my view, therefore, the Berrahma and Longia (No. 2) cases are not determinative of the present application. Neither am I persuaded by the Minister’s arguments against the Tribunal’s granting of a constitutional exemption in the case at bar. The Tribunal’s decision is not stated in terms of constitutional exemption, but in terms mandated explicitly by section 52 of the Charter.

In the instant case, the Tribunal had no authority to, and did not make a pronouncement of exemption applicable to a class of cases sharing similar characteristics. It did have authority to make a section 52 determination applicable only to the parties before it, the effect of which, as recognized in, inter alia, Kaur and Grewal, would be to exempt the parties from the application of a given provision on constitutional grounds. It seems clear that the jurisprudence of the Supreme Court of Canada, as well as of this Court, supports the Tribunal’s authority to apply the Charter in the manner it did: I refer to Supreme Court of Canada decisions in Douglas/Kwantlen Faculty Assn. v. Douglas College;[16] Cuddy Chicks Ltd. v. Ontario (Labour Relations Board);[17] Tétreault-Gadoury v. Canada (Employment and Immigration Commission),[18] and to Federal Court of Appeal decisions in, inter alia, Kaur, supra; Armadale Communications Ltd. v. Adjudicator (Immigration Act);[19] Grewal, supra;[20] Canada (Minister of Employment and Immigration) v. Chung.[21] I am unable therefore to subscribe to the Minister’s view that the Tribunal’s decision will provoke future tribunals to exercise a broad discretion as to whether or not paragraph 46.01(1)(f) should be applied.

Furthermore, the case law of this Court indicates quite clearly that the Tribunal has not only the authority, but also the responsibility to consider whether the relevant statutory provisions might violate the Charter rights of the parties in any given case, and a duty not to apply that legislation in cases of Charter violation.[22] This Court has also underscored the importance of interpreting statutory provisions in light of Charter values.[23]

Essentially, the disposition of this application turns on the question of whether or not the Tribunal was correct in its appreciation of the requirements of fundamental justice enshrined by section 7. Cases cited by counsel for Agbasi in support of the Tribunal’s finding were, in the main, concerned with inquiry proceedings under the Act. In Kaur, an adjudicator denied an application to reopen an inquiry under section 35 of the Act. The applicant had been forced under duress by her former husband not to proceed with a claim to Convention refugee status at the initial inquiry and had been issued an exclusion order. The Federal Court of Appeal found [at page 218] the adjudicator had been technically correct in refusing to reopen the inquiry, absent application of the Charter, but concluded it was “clearly a case for intervention pursuant to section 7 of the Charter”. The Court held that the exclusion order issued was “manifestly unfair in the circumstances of [the] case and contrary to the provisions of section 7 of the Charter”.[24]

In reaching this conclusion, the Court relied on the case of Mattia v. Canada (Minister of Employment and Immigration),[25] in which McNair J. had found an adjudicator’s refusal to reopen an inquiry with respect to a refugee claimant who had been mentally ill at the time of the initial inquiry, and the subsequent deportation order, were manifestly unfair and in violation of the applicant’s rights under section 7.

The Court in Kaur also cited the Bains case,[26] in which the Immigration Appeal Board refused to allow an extension of time for the filing of applications for redetermination of claims to Convention refugee status. The applicants argued that a rigid and inflexible time limit with no possibility of extension under any circumstances violated the principles of fundamental justice. The Court found that argument “unanswerable”, and rejected the Minister’s argument that fundamental justice was not breached by holding the applicants to the consequences of their own actions. It concluded[27] the Board’s

… powers and its jurisdiction must be read in light of the Charter. Hence it cannot simply refuse to entertain an application of the type here in question; rather, it must look at the particular circumstances of each case to determine whether the applicant stands to be deprived of a Charter-protected right if not permitted to apply for redetermination and, if so, whether fundamental justice requires that he be granted such permission.

In both the Kaur case and the Bains case, the Court referred to the Singh decision of the Supreme Court of Canada[28] as authority for the propositions that Convention refugee claimants are entitled to section 7 protection, and that claims to refugee status had the potential to put in play Charter-protected rights.

A comprehensive statement with respect to the requirements of fundamental justice in inquiry proceedings is found in the Grewal case, which was also concerned with an adjudicator’s denial of an application to reopen an inquiry under section 35 of the Act. The Adjudicator had distinguished the Kaur case on the ground that the applicant’s section 7 rights had not been violated at the inquiry. The applicant, who had been issued a deportation order, wished to claim Convention refugee status, something he had not done at the initial inquiry because at the time he had not feared returning to his native India. The applicant had had an opportunity to present the changed circumstances in a variety of proceedings under the Act prior to seeking a reopening of the initial inquiry. The Court’s observations concerning the applicant’s section 7 argument read, in part:[29]

It has already been determined that the deportation of refugees infringes their right to security of the person. (Singh et al. v. Minister of Employment and Immigration, … ) This, of course, does not mean that people cannot be deported for good reason, that is, as long as there is no violation of the principles of fundamental justice …

Hence, it is possible to deport a permanent resident for the commission of a serious offence without violating the Charter, as long as fundamental justice has been accorded to that person before doing so. The question, therefore, is whether there has been a violation of the principles of fundamental justice in this case. The legislation and the earlier jurisprudence of this court must yield to the dictates of section 7.

…

In my view, the Canadian justice system has not unfairly closed its doors on this applicant. Rather, he has already had the opportunity to present his new facts, in one form or another, to several authoritative bodies, without success.… Although a particular method of dealing with legal or factual issues is not demanded, what is required by the terms of section 7, in cases such as the instant case, is that the refugee claimant be given an ample opportunity to have new evidence of potential persecution in his home country heard and fully considered by an authoritative body. Clearly, such a requirement has been met in this case through the applicant’s submissions in the proceedings subsequent to his original hearing.… The applicant has had ample opportunity to convince various tribunals of the importance of his new facts, and each time he has failed. This is not a denial of fundamental justice. [Emphasis added]

The foregoing cases affirm the principle that administrative tribunals involved in the Convention refugee determination process, such as the adjudicator at an inquiry, must consider Charter values in the circumstances of each case in order to determine whether fundamental justice has been observed.[30] If it has not, the legislation “must yield to the dictates of section 7”, to use the terms of the Federal Court of Appeal in Grewal [at page 588]. In my view, this principle is equally applicable to eligibility and credible basis tribunals. I am also of the opinion that the jurisprudence has not closed the categories of potential manifest unfairness. To conclude otherwise would frustrate the very principles it upholds.

7.         Conclusion

I have concluded that in the unusual circumstances of this case, it would be manifestly unfair to prevent Agbasi from making a claim to Convention refugee status (which is conceded by the Minister to have a credible basis). The manifest unfairness arises essentially from the way in which Agbasi came to be issued the departure notice which brought him within the scope of paragraph 46.01(1)(f) and eliminated his eligibility to claim refugee status.

It was Immigration officials who denied Agbasi’s application for a visa extension pending an inquiry at which, it should be stressed, he was exonerated of the original allegation of having worked illegally. Thus, Agbasi fell prey to the second allegation of having overstayed his visa owing to Immigration’s refusal to extend his visa. It was this second allegation that was the sole basis for the issuing of the departure notice. Had the visa been extended pending the outcome of the inquiry, no ground for the issuing of a removal order would have existed once Agbasi was cleared of the original allegation. Had the visa been extended, it follows that paragraph 46.01(1)(f) would not have come into play so as to prevent a subsequent claim for Convention refugee status.

The consequence of this unfortunate chain of events is, of course, that Agbasi would, but for the decision of the Tribunal, be deprived of a hearing of his refugee claim. Under these circumstances, I am of the view that the application to Agbasi of paragraph 46.01(1)(f), a provision introduced to prevent successive or manifestly unfounded claims, would be inconsistent with the section 7 requirements as outlined in the jurisprudence. I am mindful, in particular, of the observation in Grewal that section 7 requires that a refugee claimant be given an ample opportunity to have his claim heard and fully considered by an authoritative body. It follows that the Tribunal committed no reviewable error in concluding that Agbasi’s section 7 rights would be violated if he were denied the opportunity to make an initial claim to Convention refugee status.

Consequently, the decision under attack ought to stand, and the application is denied with costs.

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