Judgments

[1993] 1 F.C. 696

A-1180-91

Van Hung Nguyen (Applicant)

v.

Minister of Employment and Immigration (Respondent)

Indexed as: Nguyen v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Marceau, Hugessen and Décary, JJ.A.—Winnipeg, December 16, 1992; Ottawa, January 15, 1993.

Constitutional law — Charter of Rights — Equality rights — Decision to deport landed immigrant convicted of numerous criminal offences against whom certificate certifying him danger to Canadian public issued not contrary to s. 15 — Foreigner not having absolute right to enter, remain in Canada — Requirement of no serious criminal convictions not illegitimate or arbitrary — Decision ineligible to have refugee claim determined pursuant to Immigration Act, s. 46.01(1)(e)(ii) not contrary to s. 15 — To deny dangerous criminals right to seek refuge in Canada not form of illegitimate discrimination.

Constitutional law — Charter of Rights — Life, liberty and security — Procedure established by Immigration Act to determine whether breach of condition of no serious criminal convictions attached to landed immigrant’s right to remain in Canada not violating rules of fundamental justice — Scheme established by Immigration Act, ss. 27, 32(2), 46.01(1)(e)(ii) not contrary to s. 7 — Formal guidelines as to factors to be considered by Minister before issuing danger to Canadians certificate unnecessary — Minister’s opinion as reliable as that of court — No meaningful balancing between danger to Canadian public and degree of persecution feared upon deportation — No procedural unfairness.

Citizenship and Immigration — Exclusion and removal — Removal of permanent residents — Landed immigrant, convicted criminal, claiming Convention refugee status at s. 27 inquiry — Minister issuing certificate certifying him danger to Canadian public — Adjudicator and member of Refugee Division finding applicant ineligible pursuant to s. 46.01(1)(e)(ii)(B) to have refugee claim determined — Decisions to deport, of ineligibility to have refugee claim determined, scheme established by Immigration Act, ss. 27(1)(d)(i), 32(2), 46.01(1)(e)(ii) constitutionally valid.

This was an application for judicial review of the determination that the applicant was ineligible to have his Convention refugee claim determined by the Refugee Division and the subsequent issuance of a deportation order. The applicant, a landed immigrant, has been convicted of numerous serious criminal offences since his admission to Canada. At the commencement of an Immigration Act, subsection 27(3) inquiry he indicated that he wished to claim refugee status and the inquiry was adjourned. When it resumed in the presence of a member of the Convention Refugee Division, the Adjudicator determined that the applicant was a person described in paragraph 27(1)(d), but the inquiry was again adjourned before it was decided whether the applicant was eligible to have his claim to refugee status determined by the Refugee Division. When the inquiry resumed, a certificate signed by the Minister stating that the applicant constituted a danger to the public in Canada was filed. The panel then determined that the applicant was not eligible to have his claim referred to the Refugee Division pursuant to clause 46.01(1)(e)(ii)(B), which provides that a Convention refugee who the Minister has certified constitutes a danger to the public is not eligible to have the refugee claim determined by the Refugee Division. The Adjudicator then issued a deportation order. The applicant argued that deportation without first determining his refugee claim could result in deportation to a country where he would be persecuted and could face torture or execution. The issues were whether either the decision to deport once a person is found to be a person described in paragraph 27(1)(d) pursuant to subsection 32(2), or the decision that the person is not eligible to have his claim to refugee status determined by the Refugee Division pursuant to subparagraph 46.01(1)(e)(ii), is constitutionally invalid.

Held, the application should be dismissed.

The decision to deport based on subsections 27(1) and 32(2) was constitutionally valid. A non-citizen has no absolute right to enter or remain in Canada. Therefore the establishment and enforcement of conditions to be observed by landed immigrants in order to retain their right to remain in Canada and avoid deportation may offend the Charter only (1) if the conditions themselves are discriminatory (breaching the right of all landed immigrants under Charter, section 15 to equal treatment under the law); or (2) if their implementation is not made with full regard for the rules of fundamental justice (breaching the right of everyone in accordance with the principles of fundamental justice). The requirement of no serious criminal convictions is not illegitimate or arbitrary and the procedure set up by the Act to determine breach of the requirement in practice does not violate rules of fundamental justice.

The decision concerning eligibility to have his refugee claim determined was also constitutionally valid. A foreigner has no absolute right to be recognized as a political refugee under either the common law or any international convention to which Canada adheres. Legislation which defines conditions for eligibility to claim refugee status violates the Charter only if those conditions have the effect of subjecting a group of claimants to discriminatory treatment within the meaning of section 15. To deny dangerous criminals the right to seek refuge in Canada is not a form of illegitimate discrimination. Only section 15 is engaged since, unlike the first decision which entailed forced deportation and therefore deprivation of liberty, a declaration of ineligibility does not imply any positive act which may affect life, liberty or security of the person.

The scheme of the Act established by subparagraph 27(1)(d)(i), subsection 32(2) and subparagraph 46.01(1)(e)(ii) is constitutionally sound, and the decisions made against the applicant in conformity therewith did not infringe his Charter rights. As the effect of subparagraph 46.01(1)(e)(ii) is to take away the only possible barrier to the issuance of an unconditional deportation order, thus participating in the deprivation of liberty and possibly the security of the individual which results from deportation, Charter, section 7 came into play. The applicant argued that the absence of legislative safeguards to protect against the issuance of an ill-advised certificate, coupled with the lack of any provision for court review of the Minister’s opinion, rendered the whole legislative scheme disrespectful to principles of fundamental justice. Formal guidelines as to the factors to be considered in the formation of the Minister’s opinion are unnecessary as the Minister’s opinion in respect of public danger is as reliable as that of a court. There can be no meaningful balancing between an actual danger to the Canadian public and the fear of persecution of a foreign citizen. The challenge to procedural aspects of the scheme did not need to be addressed because the tribunal did not have jurisdiction to examine whether the public danger certificate had been issued in accordance with the rules of natural justice. Only this Court has such jurisdiction. There was, in any event, no merit to the argument of procedural unfairness. The procedure established and followed affords an individual full opportunity to make his case thus satisfying the demands of the principle of audi alteram partem. There is no reason to require an oral hearing. The allegation of bias could not be understood as there was nothing to suggest that the Minister had pre-judged the matter.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11, 12, 15.

Immigration Act, 1976, S.C. 1976-77, c. 52, s. 72(1)(b), 82.1 (as am. by S.C. 1984, c. 21, s. 84), 83 (as am. idem).

Immigration Act, R.S.C., 1985, c. I-2, s. 27 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 11), 32 (as am. idem), 43 (as am. idem, s. 14), 46 (as am. idem), 46.01 (as enacted idem), 70(1)(b) (as am. idem, s. 18).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 33.

CASES JUDICIALLY CONSIDERED

APPLIED:

Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161.

REFERRED TO:

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; (1991), 84 D.L.R. (4th) 438; 67 C.C.C. (3d) 1; 8 C.R. (4th) 1; 129 N.R. 81; 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; 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; Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.).

APPLICATION for judicial review of the decision that the applicant was ineligible to have his Convention refugee claim determined by the Refugee Division and the subsequent issuance of a deportation order.

COUNSEL:

David Matas for applicant.

Harry Glinter for respondent.

SOLICITORS:

David Matas, Winnipeg, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Marceau J.A.: In November 1988, the applicant, who had been admitted to Canada as a landed immigrant in February 1981, was summoned to an inquiry under subsection 27(3) of the Immigration Act, R.S.C., 1985, c. I-2 (“the Act”), following a report by a senior immigration officer alleging that he was a person described in subparagraphs 27(1)(d)(i) and 27(1)(d)(ii) of the Act, that is to say: a person who has been convicted of a criminal offence for which a term of imprisonment of more than six months has been imposed or a term of imprisonment of five years or more could have been imposed.[1] At the commencement of the inquiry, the applicant informed the Adjudicator that he wished to claim refugee status. The inquiry was therefore adjourned as required by the Act.[2]

When the inquiry resumed in the presence of a member of the Convention Refugee Determination Division, the Adjudicator first determined that the allegation in the report was accurate on the basis of the evidence before him that, since his admission to Canada, the applicant had been convicted twice for possession of a dangerous weapon, twice for aggravated assault and once for sexual intercourse with a female under 14 years. The Adjudicator then called for examination of whether the applicant was eligible to have his claim to refugee status determined by the Refugee Division, as directed by subsection 46(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14] of the Act.[3] An adjournment was then sought and granted, and when the inquiry resumed, a representative of the Minister tendered into evidence a certificate signed by the Minister stating that the applicant constituted a danger to the public in Canada. Clause 46.01(1)(e)(ii)(B) [as enacted idem] of the Act provides that:

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

...

(e) the claimant is

...

(ii) a person

...

(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

The conditions for application of this provision of the Act were obviously established, but the applicant submitted that to apply the provision in his case would violate his constitutional rights under the 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]]. The panel rejected the submission and determined that the applicant was not eligible to have his claim referred to the Refugee Division. The Adjudicator then issued a deportation order against the applicant as mandated by subsection 32(2) [as am. idem, s. 11] of the Act.[4]

The present application for judicial review, brought with leave of the Court, attacks the validity of both the determination of ineligibility and the deportation order.

In his presentation in support of the application, counsel for the applicant, for the most part, reiterated before us the submissions he had made before the panel. These submissions were, as to be expected, all based on the presumption that ordering deportation without determining the applicant’s claim to refugee status could result in forcible deportation of the applicant to a country where he might be persecuted and, in particular, might face torture or arbitrary execution. But they were disorganized and often confused. They dealt indiscriminately with the issuance of the Minister’s certificate in the circumstances of the case, the procedure established for the issuance of such public danger certificates by a general ministerial directive and the legislative provisions involved, and they invoked simultaneously sections 7, 11, 12 and 15 of the Charter. The serious issues raised by the application, which we are told are advanced in other cases, will have to be dealt with in a more orderly way.

What is called into question in the wording of the application is the constitutionality of the whole statutory scheme pursuant to which a permanent resident can be ordered deported from Canada without giving effect to his claim to refugee status. It cannot be overlooked, however, that this scheme comprises two separate and independent decisions made pursuant to two sets of provisions. One is the decision of the Adjudicator whereby the person, having been found to be one described in subparagraphs 27(1)(d)(i) and 27(1)(d)(ii) of the Act, is ordered deported as required by subsection 32(2) of the Act; the other is the decision of the Adjudicator and the member which affirms, pursuant to subparagraph 46.01(1)(e)(ii), that the person is not eligible to have his claim to refugee status determined by the Refugee Division. It seems logical to me to start the analysis by inquiring whether one or the other of these two decisions could, in itself, be vulnerable to constitutional attack.

The constitutional validity of the decision based on subsections 27(1) and 32(2) of the Act is easy to verify, especially following the judgments of the Supreme Court in Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, and Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711. If one bears in mind that a non-citizen has no absolute right to enter or remain in the country, one can see that the establishment by Parliament, and their enforcement in particular cases, of conditions to be observed by landed immigrants in order to retain their right to remain in Canada and avoid deportation may only offend the Charter in two ways: either the conditions are in themselves discriminatory (breaching thereby the right of all landed immigrants under section 15 of the Charter to equal treatment under the law); or their implementation in particular cases is not made with full regard for the rules of fundamental justice (thus breaching the right of everyone under section 7 of the Charter not to be deprived of liberty except in accordance with the principles of fundamental justice).[5] Now, certainly, the requirement of no serious criminal convictions is not illegitimate or arbitrary, and the procedure set up by the Act to determine breach of the requirement in practice—a procedure scrupulously followed in this case—does not violate rules of fundamental justice. There is no difficulty with the first decision therefore: it is, when viewed in isolation, constitutionally valid.

There appears to be even less difficulty in coming to the conclusion that the other decision, made pursuant to subparagraph 46.02(1)(e)(ii) of the Act, is, in itself, also constitutionally sound. A foreigner has no absolute right to be recognized as a political refugee under either the common law or any international convention to which Canada has adhered.[6] It follows that legislation which purports to define conditions for eligibility to claim refugee status may violate the Charter only if those conditions have the effect of subjecting a group of claimants to discriminatory treatment within the meaning of section 15. To deny dangerous criminals the right, generally conceded to immigrants who flee persecution, to seek refuge in Canada certainly cannot be seen as a form of illegitimate discrimination. Only section 15 of the Charter is engaged since, contrary to the first decision which entailed forced deportation and therefore deprivation of liberty, a declaration of ineligibility does not imply or lead, in itself, to any positive act which may affect life, liberty or security of the person (see Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202, and Longia v. Canada (Minister of Employment and Immigration), not yet reported, A-1059-90, which on this point distinguished Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 where the exercise of the right to claim refugee status, a right previously granted, was in question).

Thus, when considered independently of one another, neither of the two decisions made in implementing the impugned scheme is vulnerable to constitutional attack. This conclusion, however, is not determinative. A legislative scheme may be denounced even if its parts are in themselves acceptable. The interaction between the parts may create a completely new context and force a new approach. This, I believe, is the attitude that the Supreme Court adopted in Chiarelli, supra.

In the Chiarelli case, a permanent resident had been ordered deported after having been found to be a person described in section 27 of the Act, and his right to appeal on compassionate grounds under the then paragraph 72(1)(b) [S.C. 1976-77, c. 52] of the Act [Immigration Act, 1976] (now paragraph 70(1)(b) [as am. idem, s. 18]) had been removed due to the issuance of a security certificate by the Minister under sections 82.1 [as am. by S.C. 1984, c. 21, s. 84] and 83 [as am. idem] of the Act (now 81 and 82). The Supreme Court, following in that respect the approach of this Court, examined the constitutional challenge as being aimed at the scheme viewed as a whole. The removal of the special right to appeal was perceived as the removal of a means to oppose the deportation order and, as a result, might engage section 7 of the Charter. Similarly in our case, while a determination of ineligibility under subparagraph 46.01(1)(e)(ii) of the Act is only indirectly linked to the deportation order, nevertheless it has the effect of taking away the only possible barrier to the issuance of an unconditional deportation order, and as such participates in the deprivation of liberty and, possibly, the security of the individual which results from deportation. More generally, the deprivation of liberty involved in any forced deportation is given a new dimension by the fact that the individual to be deported claims to be a refugee. It is appropriate, therefore, to assume that section 7 of the Charter is brought into play with respect to the scheme as a whole, that is to say with respect not only to the issuance of the deportation order, but also to the ineligibility decision based on the public danger certificate. The question becomes whether the issuance of the public danger certificate, the central feature of the scheme as a whole, could be said to have violated a principle of fundamental justice.

A complete answer to the question requires that two aspects be examined: the substantive aspect, which is concerned with the contents or the substance of the legislative provision, and the procedural aspect, which looks at the manner in which the legislation is in fact implemented. Counsel made lengthy submissions on both aspects. None of these submissions, however, convince me that the legislation or its implementation in this case is constitutionally unacceptable.

The substantive aspects

With respect to the legislation itself, it is argued that the absence of legislative safeguards to protect against the issuance of an ill-advised certificate, such as a requirement that dangerous conduct be likely to continue and that the dangerousness be intractable, coupled with the fact that there is no provision for a court review of the Minister’s opinion, renders the whole legislative scheme disrespectful to principles of fundamental justice. I disagree. I do not believe that the Minister needs to be compelled to follow formal guidelines as to the factors he should take into account in forming his opinion, and I consider the Minister’s opinion in respect of public danger as reliable as that of a court. Trying another approach, counsel further argued that by excluding any consideration of the claim, and therefore any evidence that could be tendered in support thereof, the provision has the effect of precluding any balancing by the Refugee Division or later by the Minister between the danger the claimant represents to the Canadian public and the degree of persecution feared upon deportation. Neither the Refugee Division nor the Minister, however, need to conduct such a balancing, since it is irrelevant to the decisions that, under the law, they are called upon to make. Moreover, I do not understand, for that matter, how and on what basis a meaningful balancing between an actual danger to the Canadian public and the fear of persecution of a foreign citizen could ever be made. Counsel’s alternative approach leads nowhere.

The contention that the scheme of which subparagraph 46.01(1)(e)(ii) is a part would constitute an outrage to Canadian public standards of decency, so as to offend principles of fundamental justice, is simply untenable. It cannot be said, therefore, that section 7 mandates, in the circumstances, an evaluation of the refugee claim.

The procedural aspects

Counsel challenged the procedural aspects of the scheme on the ground that the procedure set up by the Minister for the issuance of a certificate does not provide for an oral hearing and contains no provision for judicial review. He argued further that, even if the procedure was adequate, fundamental justice was breached in this case due to the fact that issuance of an initial certificate prior to the establishment of the procedure, even if not acted upon, created a reasonable apprehension of bias in respect of the decision to issue the second certificate on which the tribunal acted.

Strictly speaking, these submissions need not be addressed. We are sitting in judicial review of the decision of a tribunal which, in my view, did not have the jurisdiction to examine whether the public danger certificate placed before it had been issued in accordance with the rules of natural justice. The mandate of this tribunal did not entitle it to look behind a certificate fully valid on its face. While expressing an opinion, the issuance of a certificate is nevertheless, it seems to me, a decision which is subject to judicial review by this Court only, not by immigration officers.[7] However, in the interest of covering all possible means of attack, I will briefly indicate why I see no merit whatever in these arguments. The procedure set up and actually followed affords the individual concerned full opportunity to make his or her case which, I think, in the circumstances, satisfies the demands of the audi alteram partem maxim. I see no reason to require an oral hearing in this case as in any other similar case. On the other hand, I do not even understand the allegation of bias. It is true that a first certificate signed prior to the establishment of procedural guidelines was replaced by a second certificate issued in full compliance with the new procedural requirements. However, the new process, which is in the nature of a show cause order, establishes, as a first step, a notice of intention to issue the certificate. I see no material difference, in practice, between prior issuance of a certificate and notice of intention to issue a certificate. There is nothing to suggest that the Minister had prejudged the matter such that any representations to the contrary would be futile. Bias is not an issue here.

On the basis of my analysis, therefore, I can only conclude that the scheme of the Act, established by subparagraph 27(1)(d)(i), subsection 32(2) and subparagraph 46.01(1)(e)(ii), is constitutionally sound and the decisions made against the applicant in conformity therewith did not infringe his guaranteed rights under the Charter. This conclusion, of course, disposes of the application, but before closing I will permit myself a last quick remark.

We have been dealing here: first, with the issuance of a deportation order, not its actual execution to a precise country, and second, with a refusal to inquire into a claim of fear of persecution, not a refusal to take into consideration proof, on a balance of probabilities, that the deportee, if sent back to a particular country, will be subject to persecution including torture and possibly execution. I may have had no difficulty in finding that the rules of fundamental justice did not require, in the case of a criminal who is certified to be a public danger, thorough investigation of a claim of fear of persecution prior to the issuance of a deportation order against the person. It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me, a participation in a cruel and unusual treatment within the meaning of section 12 of the Charter, or, at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter. There are means to enjoin the Minister not to commit an act in violation of the Charter.

The application which is now before the Court is ill-founded and it should be dismissed.

Hugessen J.A.: I concur.

Décary J.A.: I concur.

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