Date: 19990617
Docket: IMM-3384-98
BETWEEN:
THEIVENDRAM THIRUVARULSELVAN
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.:
[1] This is an application for judicial review of a decision of Senior Immigration Officer, Maria M. Blair, dated June 26, 1998, wherein the officer determined that the applicant was not eligible to have his claim for Convention refugee status referred to the Convention Refugee Determination Division of the Immigration and Refugee Board.
FACTS
[2] The applicant is a citizen of Sri Lanka. On account of his fear of persecution in Sri Lanka, on account of his age, race, nationality and on being a member of a social group - young Tamil youth - the applicant fled to Germany.
[3] The applicant was granted refugee status in Germany on June 14, 1994.
[4] The applicant claims he was harassed, humiliated and persecuted in Germany on account of his colour.
[5] On April 24, 1996, at a place called Hagen he claims he was attacked by some unknown persons. His back was severely hurting. Again in February 1997, the applicant claims he was attacked by weapons. The applicant sustained a deep cut above the right knee.
[6] On April 19, 1997, the applicant was again attacked by the same people who attacked him earlier.
[7] The applicant felt he could not go to Sri Lanka. The applicant made an application to seek refugee status in Canada, on August 6, 1997.
SENIOR IMMIGRATION OFFICER DECISION
[8] The Senior Immigration Officer, Ms. Blair, found that the applicant is ineligible to seek refugee status in Canada as he was recognized as a Convention refugee in Germany, pursuant to section 46.01 of the Immigration Act. The applicant was thereon denied access to the refugee determination system.
[9] The above determination on eligibility was based on a finding that the applicant was recognized as Convention refugee in Germany and Germany is a country to which he can be returned.
[10] A deportation order was issued on June 26, 1998.
APPLICANTS' POSITION
[11] It is submitted that the officer did not consider the applicant"s fear of persecution in Germany. A well founded fear of persecution exists when one reasonably anticipates that remaining in the country may result in the form of serious harm which the government cannot or will not prevent, including either specific hostile acts or accommodation of adverse circumstances, such as discrimination in an atmosphere of insecurity and fear.
[12] The applicant counsel suggests that he had the right to a fair hearing of his claim by the Refugee Division and that deprivation of section 7 of the Charter of Rights security of the person is at stake and denial of eligibility is not in accordance with fundamental justice.
[13] The applicant suggests that the officer should have determined that the applicant is eligible under 46(1) and refer the matter to the Refugee Board.
RESPONDENT'S POSITION
[14] The respondent suggests that section 46.01 of the Immigration Act is clear and there is no doubt that the applicant satisfied the first part of the definition set out in section 46.01(1)(a).
[15] The respondent suggests that the applicant has admitted that he has been recognized as a Convention Refugee in Germany.
[16] The respondent suggests that the only remaining question is whether Germany is a country to which the applicant can be returned. The respondent suggests that there was nothing before the officer to suggest that the Immigration authorities of the country of asylum would not re-admit the applicant. The applicant was in possession of a valid German travel document, namely a passport. The travel document had been extended once before.
[17] The respondent submits that on the evidence in this case, the officer was entitled to conclude that the applicant could be returned to Germany.
[18] In Jekula1, Evans J. found that an officer is not required to determine whether the person will be persecuted in the country which has granted them refuge:
| In my view, the words "can be returned" do not require the senior immigration officer to determine whether the claimant has a well-founded fear of persecution in the country that has already granted asylum. The repeal in 1993 of the specific provision dealing with this very issue suggests that it should not be read back into the statute through the words "can be returned" in paragraph 46.01(1)(a). To require a senior immigration officer to determine whether a claimant has satisfied the definition of a Convention refugee would seem incompatible with the expeditious and relatively straight-forward administrative process contemplated by the statutory scheme for screening certain claims out of the Refugee Division's jurisdiction. |
| This is not to say, of course, that the Act provides no protection for persons who are in need of Canada's protection because they fear persecution in the country where they have been granted asylum. Subsection 53(1) specifically prohibits the removal of persons who have been found ineligible to have their refugee claims referred to the Refugee Division, where the person's life or freedom would be threatened on Convention grounds in the country to which it is proposed to remove them. |
| When Mr. Snow asked his superior whether there was a moratorium on returning individuals to Sierra Leone, he may well have had section 53 in mind. However, as counsel for both parties seemed to agree, the existence of such a moratorium was not relevant to the eligibly decision. |
| 47 I am fortified in my conclusion by the following words of Heald D.J. in Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252, 270 (FCTD): |
| While under subsection 46.01(2) of the Immigration Act those with Convention refugee status elsewhere were permitted to make Convention refugee claims against their country of asylum, there is no equivalent to this provision in the Act as it now reads. The repeal of the substance of subsection 46.01(2) of the Immigration Act indicates that Parliament has chosen to exclude persons recognized as Convention refugees by another country from claiming a well-founded fear of persecution by their country of asylum. |
| In addition, Heald D.J. considered the relationship in the statutory scheme of paragraph 46.01(1)(a) and subsection 53(1), and concluded: |
| Therefore the automatic operation of subsection 53(1) for those ineligible under paragraph 46.01(1)(a) was a legitimate compromise between the interest of the state in preventing asylum shopping and ensuring that possible consequences of the eligibility criteria - removal from Canada - we assessed within a mandatory evaluation of the potential harm to a paragraph 46.01(1)(a) claimant at the hands of his country of asylum. |
| I understand that the subsection 53(1) risk assessment process administered by officials of Immigration Canada may be regarded by applicants as less favourable than the full hearing before a panel of the Refugee Division applying the less stringent, "well-founded fear" test. Nonetheless, in light of the legislative history of paragraph 46.01(1)(a) and (2), and the overall statutory scheme, this consideration is insufficient to persuade me that, in determining whether a clamant "can be returned", a senior immigration officer must undertake a risk determination under paragraph 46.01(1)(a). |
[19] The respondent's counsel also suggests that the eligibility provision of section 46.01(1)(a) did not engage any rights protected by section 7 of the Charter:
| However, before the content of the principles of fundamental justice is considered in this context, the administrative action under review must deprive the applicant of the right to life, liberty and security of the person. The question is, therefore, whether a decision under paragraph 46.01(1)(a) has this effect. In my opinion it does not. First, while it is true that a finding of ineligibility deprives the claimant of access to an important right, namely the right to have a claim determined by the Refugee Division, this right is not included in "the right to life, liberty and security of the person": Berrahma v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 202, 213 (FCA); Nguyen v. Canada (Minister of Employment and Immigration), [1993] F.C. 696 (FCA). |
| Second, it may well be a breach of the rights protected by section 7 for the Government to return a non-citizen to a country where she fears that she is likely to be subjected to physical violence or imprisoned. However, a determination that a refugee claimant is not eligible to have access to the Refugee Division is merely one step in the administrative process that may lead eventually to removal from Canada. The procedure followed at the risk assessment to which the applicant will be entitled under section 53 before she is removed can be subject to constitutional scrutiny to ensure that it complies with the principles of fundamental justice, even though the procedure is not prescribed in the Act or regulations: Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252, 271 (FCTD). Moreover, while holding that it was not inconsistent with section 7 for the Immigration Act to limit access to the Refugee Division, Marceau J.A. also said in Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696, 708-709 (FCA): |
| 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, it seems to me... 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. |
| In summary, section 7 rights are not engaged at the eligibility determination and exclusion order stages of the process. However, the applicant cannot be lawfully removed from Canada without an assessment of the risks that she may face if returned to Sierra Leone. And the manner in which that assessment is conducted must comply with the principles of fundamental justice.2 |
[20] The respondent suggests that pursuant to section 53(1) of the Immigration Act, the applicant is entitled to an assessment of the risk he faces on removal. The applicant is aware of that and he intends to seek the protection of section 53, pursuant to a letter of his former counsel.
ANALYSIS
[21] Section 46.01(1)(a) and section 53 of the Immigration Act are very clear. In my opinion, the applicant is justified to apply under section 53 of the Immigration Act and pursuant to the "adequate alternative remedy principle" that is what he should do as explained by Justice Joyal in C.P. Ltd. v. Matsqui Indian Band [1992] F.C.J. No. 927, which was affirmed by the Supreme Court of Canada in 19953. Justice Joyal said:
| The basic characteristic, however, of judicial review providing an exceptional or extraordinary remedy must necessarily be maintained. It can only be maintained when no other effective recourse is open to a litigant. Absent any statutory bar to jurisdiction, and section 18.5 of the Federal Court Act is one of them, the relief which a court may grant by way of judicial review remains essentially discretionary. On such an application, a court must view all the circumstances of the case and decide if any other recourse or remedy is available. |
[22] Agreeing with Justice Joyal, the Supreme Court made the following comments:
| The respondents had the right to seek judicial review before the Federal Court, Trial Division. That does not mean, however, that they have a right to require the court to undertake judicial review. (...) |
| The sue of permissive, as opposed to mandatory, language in s.18.1(3) preserves the traditionally discretionary nature of judicial review. As a result, judges of the Federal Court, Trial Division, such as Joyal J., have discretion in determining whether judicial review should be undertaken. |
| In exercising his discretion, Joyal J. relied on the adequate alternative remedy principle. He found that the statutory appeal procedures were an adequate forum in which the respondents could pursue their jurisdictional challenge and obtain a remedy, and he therefore decided not to undertake judicial review. (...) |
| On the basis of the above, I conclude that a variety of actors should be considered by courts in determining whether they should enter into judicial review, or alternatively should require an applicant to proceed through a statutory appeal procedure. These factors include: The convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant. |
[23] I note from the application record, at page 6, that counsel for the applicant made a request to the Post Determination Review Section that the applicant's case be considered in accordance with section 53. The letter further states that:
| A detailed description of his persecution will be submitted along with the submissions which I will be making within one month of this date of the application. |
[24] Unfortunately, I am not aware of a decision of the Post Determination Review Section pursuant to the file.
[25] Section 53 is the designed remedy to prevent the removal of the applicant if he feels threatened for reason of race.
[26] In view of the circumstances, this other recourse is available to the applicant and this application for judicial review can be dismissed on this sole basis.
[27] In Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252 (T.D.), at page 271, Justice Heald D.J. stated:
| The eligibility requirements, including those in s.46.01, do not alone attract ss.7 or 12 of the Charter, but could in combination with s.53. The ineligibility determination was automatic and mandatory for all claimants having refugee status elsewhere, the only bar to execution of a removal order being a determination pursuant to s.53(1), which engaged ss.7 and 15 of the Charter but not s.12. (...) |
| The purpose of s. 46.01(1) is to prevent a multiplicity of claims by those seeking the most favourable conditions of asylum. It is modified by s.53, giving the right not to be removed from Canada where removal would threaten life or freedom for any ground specified in the definition of Convention refugee in s.2(1). The right afforded by s.53 is intended to give effect to international obligations. There is no procedure provided by s.53(1); but a decision under that provision must be procedurally consistent with the principles of fundamental justice. Those principles do not require similar statutory procedures to those mandated by s.7 of the Charter for persons eligible to claim refugee status under the Act. The evaluation of the circumstances for s.53 should be left to the discretion of immigration officials. |
[28] In McAllister v. Canada (Minister of Citizenship & Immigration)Justice MacKay stated:
| The Act has been changed significantly since the decision in Singh. One major change was the introduction of "access criteria", precluding claimants for refugee status from having their claims determined by the Refugee Division of the Immigration Refugee Board in circumstances specified by section 46.01 which came into force January 1, 1989, shortly after Mr. McAllister made his claim to be a refugee.4 |
[29] In Berrahma v. Canada (Ministre de l'Emploi et de l'Immigration)Justice Marceau stated:
| I absolutely cannot see how it can be said that, by denying refuge to a foreign national, Parliament is infringing that person's life or security. Section 7 of the Charter is not to be interpreted in the abstract; it lays down limits for the action of governmental authority, but does not compel the latter to act; for it to be applicable, there must be a specific act, legislation, not merely a failure to act. It does not of itself impose a duty on the government to provide protection to everyone whose life or liberty may be at risk, still less to provide a refuge for all inhabitants of the globe who may fear for their lives or security, and this is so whatever the cause of the apprehended danger.5 |
[30] I have also reviewed the decision in Harbhajan Singh v. Minister of Employment and Immigration [1985]1 R.C.S. p.177 and I consider with all respect that section 2(e) of the Bill of Rights was not infringed by the decision of the officer.
[31] In my opinion, the officer did not have to evaluate whether the applicant could be persecuted if returned to Germany, but rather, she had to limit her assessment to the eligibility of the applicant to claim refugee status. The officer made an assessment based on the information that the applicant had been granted refugee status, information that was supplied by the valid German passport and the applicant's own admission (p.12 of the application record).
[32] The officer was satisfied on reasonable grounds that the claimant would in fact be readmitted in Germany and made no reviewable error in doing so.
[33] For those reasons, this application for judicial review is dismissed.
[34] Counsel for the applicant has suggested two questions:
| 1. Does a decision pursuant to s. 46.01(1)(a) of the Immigration Act that the words a "country to which the person can be returned" include a country against which a claim for asylum has been made but not determined by the Refugee Division, violate section 2(e) of the Canadian Bill of Rights and is thereby of no force or effect? |
| 2. Does a decision pursuant to s. 46.01(1)(a) of the Immigration Act that a "country to which the person can be returned" includes a country against which a claim for asylum has been made but not determined by the Refugee Division, violate section 7 of the Charter of Rights and Freedoms and is of no force or effect? |
[35] Both questions seem to suggest that this Court is asked to find that the officer"s decision violated the Charter of Rights or the Bill of Rights, as suggested by the respondent"s counsel.
[36] Obviously, the scope of those two questions cannot be addressed by this Court given that the only remedy would be to amend section 46.01(1)(a).
[37] In the absence of a notice of constitutional question properly served, pursuant to the Federal Court Rules, I cannot consider those two questions. Those two questions suggested, will not be certified.
[38] Counsel for the respondent also suggested a question for certification:
| If an Immigration Officer interprets the phrase "country to which the person can be returned" under Section 46.01(1)(a) of the Immigration Act to include a country to which the person claims a threat to his life or freedom for reason of race, religion, nationality, membership in a particular social group or political opinion, has the Officer erred in law? Does the Officer"s decision violate Section 7 of the Charter or Section 2(e) of the Bill of Rights ? |
[39] The issue raised by this question is not determinative of the case, therefore, this question will not be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 17, 1999
__________________1 Jekula v. M.C.I., (F.C.T.D., October 20, 1998, IMM-4466-97)