Date: 20040531
Docket: IMM-3955-03
Citation: 2004 FC 782
OTTAWA, Ontario, this 31st day of May 2004
PRESENT: THE HONOURABLE MR. JUSTICE PHELAN
BETWEEN:
GARY ANTHONY CORREIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Overview
[1] This judicial review concerns the rights of a permanent resident who is determined to be a "serious criminal" in the "Report on Inadmissibility" process. Most particularly the issues are, what matters may be considered and how they may be dealt with under sections 44 and 45 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("the Act") including whether any interview of such permanent resident must occur before the Minister refers the matter to the Immigration Division for an admissibility hearing.
Preliminary
[2] The style of cause is to be amended and the Respondent shall be the Solicitor General of Canada to reflect the reorganization of responsibilities under Order-in-Council, P.C. 2003-2061 and 2003-2063.
Background
[3] Mr. Correia is a 56 year old citizen of Guyana who has been a permanent resident of Canada since 1968. He has a history of criminal activity having been convicted of eight criminal offences. The last of these, the importation of cocaine, led to his removal from Canada.
[4] The conviction under section 6(1) of the Controlled Drug and Substances Act, carries with it a potential sentence of life imprisonment. He was sentenced to time served of 53 days plus an additional twenty seven and one half months.
[5] The Applicant's criminal situation became known to immigration officials who began the process of removal under section 44 of the Act.
[6] On April 7, 2003, an immigration officer ("Officer") made a report pursuant to subsection 44(1) of the Act that Mr. Correia was an inadmissible permanent resident by reason of his serious criminality in accordance with paragraph 36(1) (a) of the statute.(that Act?)
[7] On the next day, April 8, 2003, the delegate of the Minister of Citizenship and Immigration ("Delegate") having held the report to be "well-founded" referred the report to the Immigration Division for an admissibility hearing.
[8] Despite the report having been referred to the Immigration Division, the Officer proceeded to interview Mr. Correia on April 10, 2003.
[9] It was at this interview that the Applicant first learned that he was to be deported. The Applicant's evidence is that although he was permitted counsel, which he did not secure, he was advised that representation by counsel or any submissions would be ineffective.
[10] A removal order was issued by the Immigration Division on May 12, 2003.
[11] At this hearing, the Court was advised that the Applicant had already been removed.
Issues
[12] The Applicant raised the following issues:
a) Was the Respondent required to consider humanitarian and compassionate circumstances before referring the Applicant to an admissibility hearing.
b) Was there a reasonable apprehension of bias in the Respondent referring the report to the Immigration Division.
c) Did the Respondent fail to provide sufficient reasons for the decision to refer the Applicant to an admissibility hearing.
Analysis
[13] Despite the Applicant being removed from Canada, the issues raised are not moot. If the Applicant were to succeed, the Respondent would be required to return the Applicant to this country. Poonawalla v. Canada (Minister of Citizenship and Immigration) 2004 FC 428.
[14] The rights of the Applicant at each of the three stages of the removal process depend on the nature of the inquiry or issues to be addressed.
[15] The provisions of the Act dealing with removals due to inadmissibility are a significant change from the removal process under the previous Immigration Act which allowed for the exercise of much more discretion for immigration officials and by the Minister. This is particularly true with respect to "serious criminality" and the issue of rehabilitation.
[16] The relevant provision of the Act, sections 44 and 45, read as follows:
| Preparation of report 44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. Conditions (3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
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Rapport d'interdiction de territoire 44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
Suivi (2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi.
Conditions (3) L'agent ou la Section de l'immigration peut imposer les conditions qu'il estime nécessaires, notamment la remise d'une garantie d'exécution, au résident permanent ou à l'étranger qui fait l'objet d'un rapport ou d'une enquête ou, étant au Canada, d'une mesure de renvoi. |
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| Decision 45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions: (a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident; (b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or (d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
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Décision 45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes_:
a) reconnaître le droit d'entrer au Canada au citoyen canadien au sens de la Loi sur la citoyenneté, à la personne inscrite comme Indien au sens de la Loi sur les Indiens et au résident permanent; b) octroyer à l'étranger le statut de résident permanent ou temporaire sur preuve qu'il se conforme à la présente loi;
c) autoriser le résident permanent ou l'étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire; d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire.
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[17] Under the Act, inadmissibility encompasses such diverse areas as security, serious criminality, organized crime, health grounds, financial grounds, misrepresentation and non-compliance with the Act.
[18] The relevant provision of the Act for this Applicant is paragraph 36(1)(a):
| Serious criminality 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; |
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Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants_: a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; |
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[19] Subsection 44(1) involves two different acts by the Officer. Firstly there is the formation of the opinion as to inadmissibility, secondly, there is the decision to make a report.
[20] The decision to make a report must be considered against the backdrop of this Division of the Act which has as its purpose the removal of certain persons from Canada. The discretion not to report must be extremely limited and rare otherwise it would give to officials a level of discretion not even enjoyed by the responsible Minister.
[21] Whatever the scope of that discretion may be in any particular case in respect to different grounds of inadmissibility, with respect to serious criminality it is not the responsibility of the officer, by refusing to report his opinion, to effectively find a person to be "admissible" for reasons unrelated to serious criminality.
[22] For purposes of the subsection 44(1) report, that report is restricted to the "relevant facts". In the case of serious criminality those facts relate to the fact of the conviction.
[23] The nature of the inquiry does not involve issues of humanitarian and compassionate matters, rehabilitation or other such factors. It is a very limited inquiry being essentially a confirmation that the conviction was in fact handed down. After that, the process for removal is engaged.
[24] The inquiry regarding serious criminality can be contrasted with that involving organized criminality, health grounds or misrepresentation. In these other grounds of inadmissibility, officials are required to make judgments both as to fact and law. Therefore the nature of those inquiries is quite different from the very straight forward inquiry as to serious criminality.
[25] While the Federal Court of Appeal's decision in Kindles v. MacDonald, [1987] 3 F.C. 34 is of somewhat less relevance given the new provision of the Act, the basic analysis of the process remains relevant in the context of serious criminality. As the Federal Court of Appeal observed, the inquiry is purely factual and administrative in nature.
[26] A comparison of the relevant provisions of the former Immigration Act and those of the Immigration and Refugee Protection Act indicate even more clearly that Parliament intended to reduce the issues to be considered by officials and to limit the areas of redress by the permanent resident.
[27] Since inadmissibility for serious criminality under subsection 44(1) is based on the conviction and sentence itself, the Officer's opinion is likewise limited to securing knowledge that the conviction and sentence were rendered. The "relevant facts" for purposes of the report to the Minister or the Delegate is the fact of the conviction and the length of the sentence.
[28] Therefore the Officer had no jurisdiction to consider humanitarian and compassionate issues in issuing his report.
[29] Similarly the Delegate, in determining whether the report is "well-founded" is restricted in his consideration to the relevant fact of the conviction and of the sentence.
[30] There are no grounds advanced which would justify the Minister or the Delegate not referring the report to the Immigration Division. The exercise of the Minister's discretion does not engage a review of humanitarian and compassionate grounds, as confirmed by the Federal Court of Appeal.
[31] In so saying, I am not holding that there are no circumstances which may be relevant to the Minister's discretion to refer the report to the Immigration Division. However, there are none in this case.
[32] For the same reasons, there was no reasonable apprehension of bias in referring the report. The facts were simple, clear and admit of no debate.
[33] Having regard for the limited nature of the inquiry to be conducted, the reasons given are more than adequate for the Applicant to know the basis for the decision.
[34] Lastly, it is necessary to comment on one aspect of this process - the interview. That interview was conducted after the decision to refer the report to the Immigration Division. It is difficult to see what purpose that interview would have other than to inform the Applicant about what is to befall him.
[35] If an interview is to be held and if there is a right to such an interview, it should be held after the report is transmitted to the Minister but before the decision to refer is made.
[36] This is one of those rare cases where there was a breach of procedural fairness but where the remedy should not be the quashing of the decision. The Applicant was unable to suggest what relevant facts could have been put to the Delegate which could have in any way altered the decision to refer. There is no purpose to be served in repeating the process to end at the same result. It is unfair to both parties to order a repeat of the removal process. To do so would be a triumph of form over substance.
[37] The relevant guidelines dealing with this aspect of the removal process should be reviewed to ensure that they reflect the legislative changes in the Act.
[38] While the guidelines do not create substantive rights, the government makes them available to the public presumably so the public can rely on them to some measure. The government may well be held accountable in some fashion if the guidelines are not followed for no good reason.
[39] Therefore despite the excellent submissions by the Applicant's counsel, this application will be dismissed.
[40] No submissions were made as to a certifiable question and given the particular facts I find that no question will be certified.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The Respondent shall be the Solicitor General of Canada
2. The application for judicial review is dismissed.
3. No question will be certified.
(s) "Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-3955-03
STYLE OF CAUSE: Gary Anthony Correia v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan
DATED: May 31, 2004
APPEARANCES:
Mr. Joel SandalukFOR THE APPLICANT
Ms. Deborah DrukarshFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mamann & AssociatesFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada