Ottawa, Ontario, April 24th, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF CITIZENSHIP ANDIMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a report made by an Immigration Officer (the "Officer" under subsection 44(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the "Act").
[2] Mr. Abdilatif Osman Awed is a citizen of Somalia who was determined to be a Convention refugee in June 1994. He has not received permanent residence status. On June 22, 2000 the applicant was convicted of a number of criminal offences including mischief, assault, assaulting a police officer and uttering death threats for which he was sentenced to nine months in jail.
[3] The applicant was called for an interview with an Immigration Officer on March 9, 2005. Subsequent to the interview, a report under subsection 44(1) was prepared by the Officer and transmitted to the Minister stating that in the Officer's opinion, the applicant was inadmissible under paragraphs 36(1)(a) and 36 (2)(a) of the Act by reason of his criminal convictions. As a result of the report, an interview was conducted by the Minister's delegate and a determination was made under subsection 44(2). That determination is the subject of an appeal to the Immigration Appeal Division. A related application for judicial review of the s.44 (2) determination has been discontinued.
ISSUE
[4] The sole issue before me is whether the Immigration Officer complied with the duty of fairness in conducting the interview on March 9, 2005 and in preparing the report under s.44(1). This issue was initially argued before me on February 23, 2006 and judgment was reserved. In view of the recent decision of the Federal Court of Appeal in Canada(Minister of Public Safety and Emergency Preparedness) v. Jung Woo Cha, 2006 FCA 126, [2006] F.C.J. No. 491 (QL) [Cha] released on March 29, 2006, counsel for the parties were provided a further opportunity on April 19, 2006 to present oral arguments on the implications of that decision for this case.
[5] The applicant challenges the validity of the s.44 (1) report on the ground that the content of the duty of fairness articulated in Hernandez v. Canada(Minister of Citizenship and Immigration) (2005), 45 Imm. L.R. (3d) 249, 2005 FC 429 [Hernandez] was not observed. In Hernandez, Justice Judith Snider found that fairness required that the subject of a 44(1) inquiry called to an interview: (1) be advised of the purpose of the interview; (2) be allowed to make submissions; and (3) be given a copy of the officer's report.
[6] The applicant submits that in this case the Officer failed to advise him of the purpose of the interview, failed to allow him to make submissions and did not provide him with a copy of the report at the time it was made. The applicant contends that had be been informed of the purpose of the interview in advance and been allowed to make submissions to the Officer, he would have explained that he suffers from schizophrenia. When unable to access his medication he suffers from unpredictable behaviour, which played a role in the commission of the offences for which he was convicted. The schizophrenia was, apparently, undiagnosed at the time of his convictions.
[7] In failing to grant him the opportunity to make representations, the applicant submits, the Officer ignored the permissive language of s.44 which provides that the officer "may" make a report if the facts of the criminal convictions are confirmed. In doing so, the applicant contends, the Officer committed reviewable error.
RELEVANT LEGISLATION
| 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. |
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. |
| (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. |
(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.
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STANDARD OF REVIEW
[8] Questions pertaining to the scope of the duty of fairness and the scope, if any, of the officer's discretion under the Act attract the standard of correctness. A pragmatic and functional analysis is not required: Ha et al v. Canada(Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195,2004 FCA 49 [Ha].
ANALYSIS
[9] In addition to Hernandez, above, the scope of the duty of fairness owed under s. 44 has been addressed by this Court in several decisions. In Sheong Chang Lee v. The Minister of Citizenship and Immigration, 2006 FC 158, [2006] F.C.J. No. 260 (QL) my colleague Justice Michel M.J. Shore read Hernandez as holding that the duty of fairness does not require that the s. 44(1) report be put to the applicant prior to the s. 44(2) referral, nor does it require an interview by an immigration officer (see para. 32). However, Justice Shore held that when an interview is conducted the criteria articulated by Justice Snider in Hernandez must be met.
[10] In Correia v. Canada (Minister of Citizenship and Immigration) (2004), 253 F.T.R. 153, 2004 FC 782, Justice Michael Phelan viewed the report made by the officer under s. 44(1) as essentially an administrative function, lacking any scope for the exercise of discretion on the part of the officer. The report under subsection 44(1), he concluded, is restricted to the relevant facts, and in the case of criminality the relevant facts are those pertaining to the fact of conviction. At paragraph 25, Justice Phelan stated:
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.
[11] Similarly, in Leong v. Canada(Solicitor General) (2004), 256 F.T.R. 298, 2004 FC 1126, Justice Konrad W. von Finckenstein found that a relatively low level of procedural fairness was owed to an applicant when a report under s. 44(1) was prepared. Consequently, the officer preparing the report did not err in failing to inform the applicant that a report was being considered and the applicant was not entitled to make written submissions before the decision was made. In determining that a low level of procedural protection was owed the applicant, Justice von Finckenstein considered the factors outlined by the Supreme Court in Baker v. Canada (Minister of Employment and Immigration), [1999] 2 S.C.R. 817 and concluded:
¶ 13 Although the decision is highly important to the individual, it is also notable that the language of the statute in no way encourages a legitimate expectation that a wide range of procedural guarantees will be provided. Applying the test in Baker (supra) having in mind the nature of the decision as so concisely defined by Phelan J. in Correia (supra); namely, whether a conviction was made and what sentence was imposed; the clear implication emerges that a relatively low level of procedural fairness is owed when the initial s. 44.(1) report is being prepared. Consequently, Officer Cobb did not err by failing to inform the Applicant that a report was being considered; nor was the Applicant entitled to make written submissions before the decision was made.
[12] At the applications level in Cha, above, Justice François Lemieux held, among other findings, that the Immigration Officer had breached the duty of fairness in failing to inform the applicant of the possible consequences of the initial interview. The Federal Court of Appeal confirmed that such a finding was open to Justice Lemieux but respectfully disagreed with his conclusion that the section 44 determinations called for a relatively high degree of participatory rights.
[13] Although the case before the Court of Appeal dealt with two certified questions related to subsection 44(2) of the Act, Justice Décary, for the Court, also discussed the scope of the officer's discretion under s. 44(1). In finding that discretion to be very narrow, Justice Décary had this to say at paragraph 33 of his reasons:
As I see it, in so far as foreign nationals convicted of certain offences in Canada are concerned, the immigration officer, once he is satisfied that a foreign national has been convicted of offences described in paragraph 36(1)(a) or 36(2)(a) of the Act, is expected to prepare a report under subsection 44(1) of the Act, unless a pardon has been granted, unless the convictions have been reversed, unless the inadmissibility resulted from the conviction of two offences that may only be prosecuted summarily and the foreign national have not been convicted in the five years following the completion of the imposed sentences, or unless the offence is designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.
[14] The applicant submits that Cha is distinguishable on the basis that the case dealt with a foreign national who was not, as he is, a protected person. He points to paragraph 13 of Cha in which Justice Décary states that did not wish to be taken as approving or disapproving the final determinations made in Hernandez, Leong or Correia as those cases dealt with permanent residents. As a foreign national who is a protected person, the applicant submits that he is in a different category from other foreigners who have no right to remain here, such as those who have simply overstayed their visas, as in Mr. Cha's case. In effect, he contends, a hierarchy of procedural fairness should be recognized and greater participatory rights accorded foreign nationals who are Convention refugees.
[15] I note that Justice Décary recognized at paragraph 23, that the Act and the Regulations treat permanent residents differently than Convention Refugees who are, in turn, treated differently than other foreign nationals. The latter who are just temporary residents receive little substantive and procedural protection throughout the Act. Clearly refugees receive greater protection including the right not to be refouled to countries in which they would be persecuted. In this context, they are given the right to appeal the Minister's determination under s.44 (2) to the Immigration Appeal Division, a right which other foreign nationals do not have.
[16] Section 44 applies to all grounds of inadmissibility for foreign nationals and permanent residents. In the application of the discretion exercised under subsection 44(2), the scope of the Minister's discretion may vary depending on the grounds alleged or on whether the person concerned is a permanent resident or a foreign national. Permanent residents, as Justice Décary observed at paragraph 46, may have the opportunity to challenge both the immigration officer's report and the Minister's delegate's decision before the Immigration Division. But in either case, where criminality is alleged, the scope of the discretion afforded the officer and the Minister is very limited, reflecting Parliament's intention that non-citizens who commit certain types of crimes are not to remain in Canada.
[17] I find no support in Cha for the applicant's contention that foreign nationals who are also protected persons and who have been convicted of the predicate crimes described in section 36 of the Act, are entitled to a higher degree of procedural fairness or participatory rights with respect to the operation of subsection 44(1) than other foreign nationals or permanent residents.
[18] In my view, where an interview is held under s.44 (1), the purpose of the interview is simply to confirm the facts that may support the formation of an opinion by the officer that a permanent resident or foreign national present in Canada is inadmissible. The use of the word "may" in s. 44(1) does not connote discretion but merely that the officer is authorized to perform an administrative function: Ruby v. Canada (Solicitor General) (C.A.), [2000] 3 F.C. 589 at 623 - 626, 187 D.L.R. (4th) 675 (F.C.A.).
[19] While there is some force to the applicant's submission that it would be more efficient to allow the officer to exercise discretion at this stage of the process, such as to decide whether a criminal conviction should be discounted because of mental illness, the officer is not empowered by the enactment to make such a determination. Formation of the officer's opinion merely initiates a process which may or may not result in removal. In every case, it remains open to the applicant to seek an exception on humanitarian and compassionate grounds or a Pre-Removal Risk Assessment.
[20] As observed by Justice Décary in Cha, above at paragraph 35, the officer has no room to manoeuvre other than that expressly carved out by the Act and the Regulations. The officer is on a fact-finding mission and if serious or simple criminality is found, has the responsibility to prepare a report and transmit it to the Minister.
[21] Where an immigration officer calls a permanent resident or foreign national for an interview in order to confirm the facts that would support a s.44 (1) opinion and report, the content of the duty of fairness is therefore minimal. However, even a minimal degree of fairness would require that the officer advise the person of the purpose of the interview if only to put the person on notice of the possible consequences and to consider his options.
[22] I find, therefore, that the Officer's failure to advise the applicant of the purpose of the s.44(1) interview did constitute a breach of the duty of fairness. He was not informed that the status of his presence in Canada was in question because of his criminal convictions.
[23] However, as there is nothing in the material before me to indicate that the Officer's opinion was incorrect, and as I find that he did not have the discretion to consider whether the applicant's mental status vitiated the criminal convictions, I am satisfied that the Officer would arrive at the same opinion and transmit the same report if this matter were remitted for a Officer to make the same inquiry. Moreover, the matter has now progressed to the stage that the delegate's determination under s.44 (2) is under appeal. Accordingly, no purpose would be achieved by remitting it for reconsideration: Aro v. Canada (Minister of Citizenship and Immigration), 2004 FC 1333, [2004] F.C.J. No. 1609 (QL) applying a decision of the Supreme Court of Canada in Mobil Oil Canada [1994] 1 S.C.R. 202, 111 D.L.R. (4th) 1; Yassine v. Canada (Minister of Employment and Immigration), (1994) 172 N.R. 308, 27 Imm. L.R. (2d) 135 (F.C.A.).
[24] Prior to the release of the Court of Appeal's decision in Cha, the parties in this case asked me to certify the two questions which were certified by Justice Snider in Hernandez. Those questions were not addressed by the Court of Appeal as the appeal was abandoned. The proposed questions are as follows:
1. What is the scope of the immigration officer's discretion under s. 44(1) of the IRPA in making a decision as to whether to prepare a report to the Minister?
2. What is the duty of fairness owed in respect of the immigration officer's decision on whether to prepare a report under s. 44(1) of the Act?
[25] During the further oral argument, the respondent submitted that these questions had been answered in Cha. I agree. Counsel for the applicant asked me to consider certifying a further question: Should the scope of the discretion of an Immigration Officer in making a s.44 (1) report be tied to the immigration status of the subject of the report? I am satisfied that the underlying premise of the question, that the officer has discretion to exercise beyond his responsibility to confirm the factual basis of his report, has also been answered in Cha. Accordingly, I decline to certify any question.
ORDER
THIS COURT ORDERS that the application for judicial review of the immigration officer's decision to make and transmit a report under IRPA s.44 (1) is dismissed. No questions of general importance are certified.
"Richard G. Mosley"
Judge
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM-2279-05
STYLE OF CAUSE: ABDILATIF OSMAN AWED
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 23, 2006
APPEARANCES:
| Max Berger
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| David Tyndale
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SOLICITORS OF RECORD:
| MAX BERGER Max Berger Professional Law Corporation Barrister & Solicitor Toronto, Ontario
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| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |