Date: 20030417
Docket: IMM-1594-02
Citation: 2003 FCT 460
OTTAWA, ONTARIO, THIS 17th DAY OF APRIL, 2003
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
SAMBA KALOMBO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the decision of the Immigration and Refugee Board, Appeal Division (the "IAD"), dated February 25, 2002, wherein the IAD determined that the removal order made against him on July 18, 2000 by the adjudicator is valid in law and that having regard to all the circumstances of the case, there are insufficient grounds why the applicant should not be removed from Canada.
[2] The applicant is a Convention refugee from the Democratic Republic of the Congo ("DRC") who became a permanent resident of Canada on July 13, 1995. Between May 14, 1998 and March 14, 2001 he was convicted of approximately 11 criminal offences which were mostly fraud-related. He was sentenced to a total of more than 15 months of imprisonment for his crimes. There is currently no danger opinion against the applicant.
[3] On November 18, 1999, an Enforcement Officer recommended a direction for inquiry pursuant to paragraph 27(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and on July 18, 2000, a removal order was made against the applicant by the adjudicator. An appeal against the removal order was made on the grounds that first, it was not valid in law, and second, it should nevertheless be stayed having regard to all the circumstances of the case.
[4] The IAD concluded that the order was valid in law and determined that the inquiry was not instituted for purposes beyond those authorized by the Act. Amongst other things, the Board concluded that:
[TRANSLATION] ... Given that the appellant was not a credible witness for the reasons set out above, we have no choice but to find that there is no credible evidence before the panel to discredit the immigration officer's notes. Moreover, there is no reason to doubt the immigration officer's honesty in taking notes on his meeting with the appellant, notes that were taken shortly after that meeting by a person who had no personal interest in the outcome of this case. The panel therefore finds the notes and the content of the report reliable, and it accepts them in evidence.
... As the panel sees it, asking that the content of a report unfavourable to oneself be excluded on the basis that one's language rights were violated when one never requested service in the official language of one's choice is not a sufficient ground for excluding the document in question or even for discrediting and not considering it, except where the panel is satisfied that the result is tantamount to a denial of natural justice, which is not the case here.
... The panel acknowledges that, under the Act, a Canadian resident who is referred for an inquiry is referred for a specific reason, such as the risk of reoffending or the threat to public safety posed by the resident in Canada. In this case, we find that the immigration officer recommended that an inquiry be held not only to deprive the appellant of his right to sponsor members of his family but also because there was a risk that he would commit a violent act given the mystical voices he was hearing. It is therefore clear that the immigration officer considered a number of factors, namely compassionate and humanitarian factors, the possibility of the appellant's rehabilitation, the degree to which he was established and his ability to comply with his undertakings if he sponsored members of his family. The panel finds that the immigration officer's conclusions and recommendations were reasonable in this case and that his conclusion that there was a risk the appellant would commit dangerous crimes was also reasonable. The panel does not find that the immigration officer acted beyond his powers, sought to unduly penalize the appellant int his case or acted illegally improperly or even for ulterior motives by recommending an inquiry by the Adjudication Division. The immigration officer had the discretion to cause an inquiry to be held so an adjudicator could determine whether or not the appellant is in fact a person described in section 27 of the Act, which he correctly decide to do.
... The panel does not agree with counsel. The decision on whether or not to execute a removal order is left to the respondent's discretion. In the panel's view, the fact that the respondent currently expresses no wish to execute a removal order against the appellant does not preclude him ab initio from recommending and referring the appellant for an inquiry by the Board's Adjudication Division and cannot make a removal order void or unlawful.
For all the reasons given above, the panel is of the opinion that the respondent acted within his powers by recommending and referring the appellant for an inquiry before an adjudicator. Moreover, it is clear from the evidence adduced that the appellant is a person described in paragraph 27(1)(d) of the Act. The panel therefore concludes that the removal order is valid in law.
[5] Moreover, in exercising its discretionary jurisdiction under paragraph 70(1)(b) of the Act, the IAD considered all the circumstances of the case - including the seriousness of the offences and the possibility of rehabilitation, the length of time and establishment in Canada, family in Canada and support available as well as the degree of hardship to the appellant if returned to his country of origin - and determined that there were not enough positive factors to allow the appeal or grant a stay of the removal order. In criminal court, the applicant admitted that he committed the offences found in his criminal record and pleaded guilty; before the IAD, he denied committing these offences and did not accept any responsibility for his convictions. Rather he attributed his criminal behaviour to everyone but himself, asserting that he was a victim of the judicial system and that he was at the wrong places at the wrong time. The IAD found that the applicant was not credible and observed the following: [TRANSLATION] "He struck the panel as a person who has no trouble lying or even perjuring himself to get out of an awkward situation. In this regard, he calmly claimed that he had perjured himself in criminal court, lying to it by pleading guilty to the crimes with which he was charged. Yet he stated today under oath that he has never committed a criminal offence". Consequently, the IAD dismissed the applicant's appeal and determined that the removal order is in accordance with the law.
[6] Before this Court, the applicant solely contests the finding of the IAD that the order was valid in law. Therefore, the applicant is not contesting the IAD's refusal to stay the removal order on "equitable" grounds.
[7] First, the applicant raises the fact that the removal order was instituted for purposes beyond the legislation. The applicant relies on R. v. Bowles, [1998] H.L.J. No. 16, which applies the dominant purpose test stated in Wade and Forsyth on Administrative Law, 7th ed., at page 436 as follows:
Sometimes an act may serve two or more purposes, some authorised and some not, and it may be a question whether the public authority may kill two birds with one stone. The general rule is that its action will be lawful provided that the permitted purpose is the true and dominant purpose behind the act, even though some secondary or incidental advantage may be gained for some purpose which is outside the authority's power. There is a clear distinction between this situation and its opposite, where the permitted purpose is a mere pretext and a dominant purpose is ultra vires.
[8] The applicant also relies on this passage from Sharlow J.A. in Wishart v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 495 (F.C.A.):
It is also common ground, indeed I would say it is trite law, that the Minister's authority to render a danger opinion can be exercised only for the purpose for which it is given. For example, the Minister cannot rely on a danger opinion rendered under subsection 70(5) as the basis for an argument that a refugee claim should not be determined. Thus far there is no controversy.
[9] The applicant notes that the immigration officer recognizes in his criminal narrative report that the applicant's offences "are not of a violent nature" and that they "don't make him a danger to the public". That being said, the immigration officer also adds "but if [the applicant] keeps hearing mystic spirits this may change". Also in the criminal narrative report, the stated purpose of his recommendation that a direction for inquiry pursuant to paragraph 27(1)(d) of the Act be made is "to have [the applicant] placed under order to prevent him from sponsoring his family members". The immigration officer continues this statement by adding, "who knows in the future if the mystic spirits tell [the applicant] to commit violent acts that he won't ... If he commits violent acts we will then seek the 53 opinion even after he is under order".
[10] Second, as a corollary proposition premised on the alleged improper purposes argument, the applicant also suggests that the removal order is somewhat illegal since it now places conditions on the applicant.
[11] Third, the applicant further submits that there is no intention to effect the removal since the Minister's representative later recognized that the applicant - who had been arrested and detained as a result of the execution of the removal order - is a citizen of the DRC (previously known as Zaïre) and it "is a country to which Citizenship and Immigration Canada is not removing". In fact, the Minister (who applied for an early detention review) acknowledged that the applicant "cannot be removed at this time" and that "a certificate under subsection 53(1) of the Immigration Act is required for removal", and the Minister "will not be seeking such certificate". The Minister further recognized that "there is no basis for his continued detention, thus an early detention review ... to recommend release is being sought".
[12] For the following reasons, I find that the IAD made no error in deciding that the removal order was valid in law.
[13] This is not a case where purpose or intent are the determinating factors. In this particular case, the deportation order arose from the operation of law. On May 14, 1998, the applicant was convicted of fraudulently impersonating a person with intent to gain advantage for himself, a criminal offence under paragraph 403(a) of the Criminal Code. This offence carries a maximum term of imprisonment of ten years. As a result, the applicant automatically falls within the ambit of paragraph 27(1)(d). Pursuant to the mandatory terms of this provision (which uses the word "shall"), the immigration officer was obliged to forward a written report to the Deputy Minister, setting out that the applicant is a person who has been convicted of an offence for which a term of imprisonment of more than six months has been, or five years or more may be, imposed.
[14] The Deputy Minister has only to decide that an inquiry is warranted. Pursuant to subsection 27(3) of the Act, upon receiving that report, the Deputy Minister shall, if he considers it appropriate, forward a copy of that report to a senior immigration officer and "may, in any case, direct that an inquiry be held" (my emphasis). In such a case, the senior immigration officer is merely a conduit through whom the inquiry is caused by the operation of the Act.
[15] In Kindler v. MacDonald, [1987] 3 F.C. 34 (F.C.A.), MacGuigan, J.A., has described this process as follows at paragraph 9:
... 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 would 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.
(my emphasis)
[16] This Court also wrote in Moreno v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1427, that "the issuance of a Direction for Inquiry flows directly from the Deputy Minister's discretionary power. In keeping with the provisions of paragraph 27(3)(b), the Deputy Minister "may ... direct that an inquiry be held". It follows that the Deputy Minister may, likewise, choose not to direct such an inquiry. The two possibilities enjoy a rational and complementary co-existence within the realm of the Deputy Minister's discretionary power" (Denault J., at para. 14).
[17] In the case at bar, an inquiry occurred, at the end of which the adjudicator concluded that the allegations against the applicant were true. Consequently, the adjudicator issued a deportation order on July 18, 2000 pursuant to subsection 32(2) of the Act. This provision provides that if the person subject to inquiry is a permanent resident pursuant to subsection 27(1), then the adjudicator shall make a deportation order. As can be seen, the deportation order flows from the operation of law. Similarly, where the person is a non-resident as described in subsection 27(2) of the Act, "the adjudicator shall ... make a deportation order against that person" (subsection 32(6) of the Act). In both cases, there is no discretion.
[18] As pointed out in Kindler, supra, at paragraph 15:
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 to scrupulously observe fairness in making his decision on the facts.
[19] The adjudicator reviewed the factual allegations in the case at bar and found that the facts were true and the applicant was a person described in subsection 27(1) of the Act. Accordingly, the adjudicator made a valid and lawful deportation order pursuant to the mandatory terms of the Act.
[20] The applicant seems to suggest that the deportation order was issued in order to place conditions on him. However, the facts do not support this position. As outlined above, the deportation order is triggered by the operation of law and once the adjudicator determines that an applicant is a person described in paragraph 27(1)(d), the deportation order shall be issued, pursuant to the mandatory terms of subsection 32(2) of the Act.
[21] In Hoang v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 1096 ("Hoang") the Federal Court of Appeal concluded that:
We are not dealing here with a provision requiring the imposition of a severe punishment for an offence. Subsection 32(2) does not impose a punishment; that provision is the necessary corollary of the limits imposed by section 4 of the Act on the right of a permanent resident to come and remain in Canada. Once it is established that a permanent resident is described in subsection 27(1), that person no longer has the right to remain in the country. There is nothing disproportionate or unreasonable in requiring that a deportation order be then made against that person. Deportation is the only practical means of forcing a foreigner who is illegally here to leave. Moreover, Parliament may and must impose limits on the right enjoyed by permanent residents to remain in the country. And, in my view, it cannot be seriously argued that there be anything cruel, unusual or unreasonable in prescribing that permanent residents will lose the right to remain here if they are found guilty of an offence which Parliament considers to be, in itself, a serious offence.
[22] It is therefore the applicant's actions that have given rise to the deportation order. The deportation order is not issued to place conditions on the applicant.
[23] The applicant also contests the validity of the deportation order on the ground that the Minister does not intend to execute this order because at the present time moratorium on removals to the DRC is still in force. Reference is also made to paragraph 53(1)(d) of the Act which provides that a Convention refugee shall not "be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless ... (d) the person is a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada" (my emphasis). In this case, no danger opinion has been sought.
[24] However, as already explained, the Act does not make the removal order contingent upon its execution or enforceability. For example, subsection 50(1) of the Act provides that a removal order shall not be executed in certain circumstances such as where it would directly result in a contravention of another order or a judicial body. Also section 51 states that "[n]o removal order becomes invalid by reason of any lapse of time between its making and execution". Therefore, execution of the order is stayed. The Act clearly separates the two processes. The applicant also submits that the Minister did not seek to eliminate the possibility of appeal pursuant to paragraph 70(5)(c) of the Act by obtaining a danger opinion. This issue is not relevant to the issue pertaining to the validity of the removal order. The presence or absence of a danger opinion does not lead to the foregone conclusion that the IAD would dismiss or grant the appeal.
[25] Once the IAD upholds a removal order, the issue of where and when an individual will be removed is a matter for the Minister as was recently stated by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 1, at paragraph 74. This distinction between the validity of a deportation order and its subsequent enforcement was also recognized by the Federal Court of Appeal in Hoang, supra, who clearly indicated that where the IAD is seized from an appeal from a deportation order it has to rule on the validity of the order only. Should the appeal fail, as stated by the Federal Court of Appeal, the issue of where the appellant may be deported is a separate one; one over which the Board has no jurisdiction. Notwithstanding the fact that the applicant volunteered the information pertaining to hearing "mystic voices", it remains that the applicant falls within the paragraph 27(1)(d) definition, and an inquiry was recommended. I do not find that IAD made any error of law or jurisdiction or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[26] Finally, the applicant proposed the following questions for certification:
1. Can the Minister cause a permanent resident of Canada to be ordered deported (i.e. take away his or her status as a permanent resident) if there is no intention to use the removal order to deport the person?
2. Can the Minister cause a permanent resident of Canada to be ordered deported (i.e. take away his or her status as a permanent resident) in order to place conditions on the person?
3. If there is a permissible purpose for an administrative decision and also a non-permissible purpose, is the decision valid? Does the "dominant purpose" test as set out by the House of Lords in R. v. Bowles, [1998] H.L.J. No. 16 (House of Lords) apply in Canadian law?
[27] The applicant's first question rests on the argument that it is never open to the Minister to issue a removal order, or to the IAD to uphold that order, if the Minister does not intend to remove the applicant. However, the issuance and validity of removal orders do not depend upon the intention to execute those orders. The issuance of a removal order and its enforceability or execution are two distinct concepts that are not interchangeable. Removal orders arise from the operation of law and are not premised on intent. The Federal Court of Appeal in Kindler, supra, and this Court in Moreno, supra, have confirmed that the decision to issue a direction for an inquiry is purely an administrative decision, and does not fulfil the criteria of a judicial or quasi-judicial decision. According to both the Court of Appeal and this Court, the decision to issue a direction for an inquiry is merely a decision with respect to an applicant, not against him. The result of a direction for inquiry is that the applicant is brought before the Adjudication Division - now the Immigration Division, under IRPA - where an adjudicator decides whether or not to issue a deportation order. If the applicant is a person described under paragraph 27(1)(d) of the Act, the adjudicator has no choice but to issue the deportation order. The Act provides no discretion in this regard and certainly, the Act does not contemplate that the issuance of that deportation order depends upon the intention to execute it. The deportation of the order is therefore a legally valid order, triggered by the operation of law.
[28] Regarding the second proposed question, as the Supreme Court of Canada established in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, at page 734, deportation of permanent residents who have committed crimes in Canada is not a punishment, since those individuals have "deliberately violated an essential condition under which they were permitted to remain in Canada ... There is nothing inherently unjust about a mandatory order". The premise upon which the second question is based, that is, the placement of conditions on the person, is immaterial since any conditions flowing from a deportation order are simply consequences of the operation of law.
[29] Finally, with respect to the applicant's third proposed question, it is a different version of the first question, insofar as the applicant's fundamental argument is that it is never permissible to issue a deportation order when there is no intention to enforce it. As was previously mentioned, removal orders arise from the operation of law and are not premised on intent.
[30] Accordingly, since both the Act and the case law conclusively resolve the matter, I conclude that none of the questions proposed by the applicant raises a question of general importance.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Immigration and Refugee Board, Appeal Division, dated February 25, 2002, wherein the IAD determined that the removal order made against him on July 18, 2000 by the adjudicator is valid in law and that having regard to all the circumstances of the case, there are insufficient grounds why the applicant should not be removed from Canada, be dismissed. No question of general importance will be certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1594-02
STYLE OF CAUSE: SAMBA KALOMBO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 1, 2003
REASONS FOR ORDER
AND ORDER : THE HONOURABLE MR. JUSTICE LUC MARTINEAU
DATED: APRIL 17, 2003
APPEARANCES: Mr. Michael Crane
FOR THE APPLICANT
Ms. Angela Marinos
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Crane
Toronto,Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT