XY v. Canada (Public Safety and Emergency Preparedness)

XY v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2021-08-10
Neutral citation
2021 FC 831
File numbers
IMM-5379-20, IMM-5380-20
Notes
A correction was made on December 7, 2022
Reported Decision
Decision Content
Date: 20210810
Dockets: IMM-5379-20
IMM-5380-20
Citation: 2021 FC 831
Ottawa, Ontario, August 10, 2021
PRESENT: The Honourable Mr. Justice Manson
BETWEEN:
XY
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons issued August 10, 2021)
I. Introduction
[1] This is an application for judicial review of two decisions of the Canada Border Services Agency [CBSA]: (1) a December 5, 2019 decision of the Officer to write a subsection 44(1) inadmissibility report [section 44 report] against the Applicant under subsection 37(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]; and (2) an October 6, 2020 decision of the Minister’s Delegate to refer the section 44 report to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board of Canada, finding that there are reasonable grounds to believe that the Applicant is inadmissible under subsections 37(1)(a) and 37(1)(b) of the IRPA.
II. Background
[2] The Applicant, XY, is a permanent resident of Canada, having landed with his spouse on November 3, 2002. His spouse and minor son are Canadian citizens.
[3] In a letter, dated May 18, 2018, the Officer notified the Applicant that a section 44 report has been or may be prepared, alleging that the Applicant may be inadmissible to Canada for misrepresentation under subsection 40(1)(a) of the IRPA. The Applicant was alleged to have provided false employment information in his application to renew his permanent resident card, in the context of an immigration scheme.
[4] The Applicant provided submissions in response to the procedural fairness letter in July of 2018 and an interview was scheduled with the CBSA for April 16, 2019 to discuss the Applicant’s case. During the interview, the Officer referenced an ||||||||||||||||||||||||||||, accusing the Applicant of bribery and money laundering. The Officer sought the Applicant’s “side of the story”, verbally indicating the allegations against the Applicant. The Applicant’s counsel in attendance stated that the Applicant would not be answering questions in regards to this and sought a written outline disclosing the allegations against the Applicant, on the basis of which a disclosure request would be made.
[5] On September 9, 2019, the Applicant received another procedural fairness letter from CBSA [the “Letter”]. It advised that a section 44 report has or will be prepared alleging the Applicant may be inadmissible to Canada under subsection 37(1)(b) of the IRPA, for the Applicant’s alleged involvement in “transnational transactions that were attempts to engage in money laundering”. Specifically, the Applicant had been under investigation since 2012, when information was received from the Chinese authorities and supported by “various sources”. The Applicant had allegedly accepted bribes |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||| and engaged in money laundering.
[6] The Applicant received summary information from CBSA, obtained from the Chinese authorities, regarding the allegations under subsection 37(1)(b) of the IRPA, and including information on allegations under subsections 36(1)(c), 37(1)(a) and 40(1)(a) of the IRPA, as enclosed in the “Subsection 44(1) and 55 Highlights – Inland Cases” [the “Highlights”].
[7] The Letter stated that the next step in the process would be to conduct a review of the circumstances of the Applicant’s case: “If a report is prepared, a Minister’s Delegate may cause an Admissibility Hearing to be held, which could result in a removal order being issued”. The Applicant was further invited to make written submissions:
…providing reasons why a removal order should not be sought. The submission may include details relevant to your case, including, but not limited to, your age at the time you acquired permanent residence, your length of residence in Canada, the location of family support and responsibilities, the conditions in your home country, your degree of establishment, your criminal history, and any history of non-compliance and your current attitude, and any other relevant factors.
[Emphasis removed]
[8] In his response, dated September 24, 2019, the Applicant requested full disclosure of the information and documents that CBSA was relying upon in order to respond to the substance of the allegations [the “Disclosure Request”]. Without such disclosure, the Applicant claimed that he was only in a position to provide submissions on the humanitarian and compassionate [H&C] aspects. Counsel at the time for the Applicant indicated:
He cannot respond to the case to be met on the allegations that he has violated IRPA because he has not been provided the evidence you have referred to and relied upon that forms the basis for the opinions in the s. 44 report. Your report is a summary of records that you have seen for yourself. [The Applicant] is entitled to see these for himself to consider his own response.
…
As such we are requesting full disclosure of the evidence you have referred to and relied upon that forms the basis for the opinions in the s. 44 report dated September 9, 2019 and all potentially relevant records accessible to you and not otherwise accessible to [the Applicant] that may be relevant to the issues set out in the s. 44 report…
[9] The Disclosure Request was refused by the Officer, in a letter dated September 26, 2019, because:
…[S]ubmissions in these sorts of circumstances are generally regarding an individual’s personal circumstances as to why a report should not be referred. The making of submissions is to allow the minister’s delegate an opportunity to exercise their discretion as to whether a removal order ought to be sought based on an individual’s personal circumstances and the impact that a removal order would have on them. The Immigration and Refugee Board has not been delegated the discretion to make this assessment; only to assess whether the evidence supports an inadmissibility. Therefore, the appropriate forum for [the Applicant] to launch a comprehensive defense of inadmissibility is during an admissibility hearing should the minister’s delegate determine there is sufficient grounds to cause one. Furthermore, at this stage [the Applicant] is only required to know the factual basis of the allegation against him which has already been disclosed in the form of the 44 report highlights. As such the appropriate time for disclosure is when/if a report is forwarded for a hearing.
[10] Counsel for the Applicant responded in an October 21, 2019 letter to confirm the Applicant’s understanding - the exercise of the Officer’s discretion whether to seek a removal order will be based on the Applicant’s personal circumstances, not on whether the evidence indicates that he is inadmissible. The Applicant’s submissions addressed the potential personal impact of a removal order on him and his family, and the risk of death or cruel and unusual punishment or treatment, including torture, should the Applicant be returned to China. The Applicant alleges he will likely be tortured if returned to China so that the authorities can pursue a confession. Once convicted, the Applicant would be liable to receive the death penalty in China.
[11] On December 5, 2019, the Officer made the decision to write a section 44 report against the Applicant under subsection 37(1)(b) of the IRPA, pursuant to subsection 44(1) of the IRPA.
[12] On October 6, 2020, the Minister’s Delegate then referred the reports, both under subsections 37(1)(a) and 37(1)(b) of the IRPA, for an admissibility hearing before the Immigration Division, pursuant to subsection 44(2) of the IRPA, finding that there are reasonable grounds to believe that the Applicant is inadmissible under subsections 37(1)(a) and 37(1)(b) of the IRPA.
[13] The Applicant seeks an Order of this Court setting aside the subsection 44(1) decision to write and the subsection 44(2) decision to refer the section 44 report, and referring the matter back to a different Officer for redetermination in accordance with this Court’s reasons.
A. The Legislative Scheme
[14] A permanent resident may be found inadmissible to Canada, leading to a loss of status and removal from Canada (Revell v Canada (Citizenship and Immigration), 2019 FCA 262 [Revell] at para 5, leave to appeal to SCC refused 38891 (2 April 2020)). The grounds for inadmissibility include serious criminality, as set out in subsection 36(1) of the IRPA and organized criminality, as set out in subsection 37(1) of the IRPA:
Serious criminality
Grande criminalité
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants:
…
...
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans.
…
…
Organized criminality
Activités de criminalité organisée
37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
37 (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :
(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan;
(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.
b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.
[15] The framework for the adjudication and enforcement of inadmissibility allegations is provided under the IRPA – a legislative scheme which has been described by the Federal Court of Appeal as comprehensive (Revell, above at para 5).
[16] If a CBSA officer [officer] is of the view that a permanent resident is inadmissible, they may prepare a report in accordance with subsection 44(1) of the IRPA:
Preparation of report
Rapport d’interdiction de territoire
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.
[17] This report is transmitted to the Minister or the Minister’s delegate [the “Minister”], who may subsequently refer the report to the Immigration Division for an admissibility hearing, as provided for in subsection 44(2) of the IRPA:
Referral or removal order
Suivi
(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.
[18] While the scope of discretion of an officer and the Minister in writing and referring section 44 reports has remained the subject of litigation, it is clear that they retain some discretion in exercising this function (Revell at para 6; Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 at para 6).
[19] The Immigration Division must then, at the conclusion of the admissibility hearing: (1) recognize a person’s right to enter Canada; (2) grant permanent resident status or temporary resident status to a foreign national; (3) authorize a permanent resident or foreign national, with or without conditions, to enter Canada for further examination; or (4) make the applicable removal order (IRPA, s 45).
[20] There is no further right of appeal to the Immigration Appeal Division, where a foreign national or permanent resident has been found inadmissible on the basis of organized criminality or in some cases, serious criminality (IRPA, s 64(1)-(2)):
No appeal for inadmissibility
Restriction du droit d’appel
64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
64 (1) L’appel ne peut être interjeté par le résident permanent ou l’étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l’étranger, son répondant.
Serious criminality
Grande criminalité
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).
(2) L’interdiction de territoire pour grande criminalité vise, d’une part, l’infraction punie au Canada par un emprisonnement d’au moins six mois et, d’autre part, les faits visés aux alinéas 36(1)b) et c).
[21] If a removal order comes into force, the permanent resident loses status and becomes a foreign national (IRPA, s 46(1)(c)):
Permanent resident
Résident permanent
46 (1) A person loses permanent resident status
46 (1) Emportent perte du statut de résident permanent les faits suivants :
…
...
(c) when a removal order made against them comes into force;
c) la prise d’effet de la mesure de renvoi;
[22] Nevertheless, three avenues remain open to the foreign national: (1) A temporary resident permit, pursuant to section 24 of the IRPA; (2) a discretionary exemption from inadmissibility on H&C grounds, under section 25 of the IRPA; and (3) a ministerial declaration or ministerial relief, under section 42.1 of the IRPA, where an exception to inadmissibility is granted on the basis that it is not contrary to national interest (Revell at paras 8-10).
[23] The second avenue, an exemption on H&C grounds, is not available to foreign nationals who are inadmissible for organized criminality (IRPA, s 25(1)), under section 37 of the IRPA, nor on the basis of security grounds or for violating human and international rights, under section 34 or 35 of the IRPA (IRPA, s 25(1)).
[24] A foreign national can also apply for a pre-removal risk assessment [PRRA] to stay removal from Canada or seek a deferral of removal (Revell at paras 11-12; IRPA, ss 48, 112-113). The objective of the PRRA process is to determine whether a person would be subject to a danger of torture or to a risk to their life, or to cruel and unusual treatment, if removed to his or her country of nationality. The result of a favourable PRRA assessment for an applicant who has been deemed inadmissible on the ground of organized criminality is a stay of removal (IRPA, ss 112(3), 114(1)(b)). CBSA also retains limited discretion to defer a removal (Revell at paras 11-12).
III. Decisions Under Review
[25] Both the Officer and the Minister’s Delegate found in their respective decisions that there are insufficient H&C considerations to overcome the serious nature of the inadmissibility allegations.
[26] The Officer provided in the December 5, 2019 decision to write a section 44 report:
In my determination insufficient humanitarian and compassionate grounds were provided and therefore I recommend that the 44 reports for 36(1)(c), 37(1)(a) and 37(1)(b) be referred to an admissibility hearing, I make this recommendation due to serious nature of the allegations against [the Applicant].
[27] The Minister’s Delegate further stated in the October 6, 2020 decision to refer the section 44 reports to an admissibility hearing:
I have made the decision to refer the S. 44 reports to an admissibility hearing as I believe there are reasonable grounds to believe that [the Applicant] is inadmissible under s. 37(1)(a) and 37(1)(b). I believe there are insufficient humanitarian and compassionate considerations to overcome the seriousness of the allegations under the IRPA.
IV. Issues
[28] The issues are:
Is the Application premature?
Did the Officer breach the duty of procedural fairness owed to the Applicant?
What level of discretion and procedural fairness is owed in a decision to write and refer a section 44 report, particularly considering where a nexus exists to a refugee claim?
V. Standard of Review
[29] Issues that relate to a breach of procedural fairness are reviewed on the standard of correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 34-35, 54-55, citing Mission Institution v Khela, 2014 SCC 24 at para 79;).
[30] The parties argued in their written submissions that the standard of review to be applied is that of reasonableness. However, in oral argument they agreed that procedural fairness issues were engaged. The issues put forward by the Applicant relate to the fairness of the process employed by the Officer. They concern whether the Applicant’s opportunity to respond to the substance of the inadmissibility allegations was hampered by the Officer. Such participatory rights are contained within the duty of procedural fairness (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker] at para 22):
22 Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
[31] Prior to the Supreme Court of Canada’s decision in Vavilov, an applicant’s entitlement to disclosure in the context of a section 44 process under the IRPA has previously been reviewed on the standard of correctness (Jeffrey v Canada (Public Safety and Emergency Preparedness), 2019 FC 1180 [Jeffrey] at para 20; see also Sharma v Canada (Public Safety and Emergency Preparedness), 2016 FCA 319 [Sharma] at para 15). This approach has not changed in light of Vavilov, where the Vavilov framework applies to the merits of an administrative decision under review (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 23, 77).
[32] Nevertheless, the scope of discretion engaged by an Officer or the Minister to respectively write and refer a section 44 report is reviewed on the standard of reasonableness (Vavilov, above at para 25; Sharma, above at para 15).
VI. Analysis
A. The Parties’ Positions
[33] The Applicant argues that the Officer misunderstood and improperly communicated the scope of his decision-making authority. By indicating to the Applicant that the Officer’s discretion to write a section 44 report would be based on the Applicant’s personal circumstances, he denied the Applicant a fair opportunity to respond to the inadmissibility allegations. By refusing the Disclosure Request, the Officer further hampered the Applicant’s ability to fairly and fully respond. The information relied on by the Officer was obtained directly from the Chinese authorities and the Applicant could not have obtained the information in any other way. The Highlights were insufficient to meet the requirements of procedural fairness, in a context such as this, where inadmissibility is not based on a conviction in Canada.
[34] The Applicant also asserts that although the alleged errors arise on a lower level of procedural fairness, this Court should reconsider the threshold of procedural fairness and scope of discretion engaged in the context of the Officer’s subsection 44(1) and the Minister’s subsection 44(2) decisions. The Applicant alleges that there are a number of factors that have been overlooked in prior decisions of this Court and the Federal Court of Appeal in interpreting these subsections of the IRPA.
[35] Furthermore, specific consideration must also be given to refugee claimants in this context. In the context of this case, the facts underlying the inadmissibility allegation may also create a basis for a refugee protection claim. The two streams are markedly different, specifically with respect to the parameters of the decision to be made. The Applicant is asking this Court to clarify the proper framework to be followed in this context.
[36] It is the Respondent’s position that while the Applicant does not have a right of appeal to the Immigration Appeal Division, he has an adequate alternative remedy available by way of the admissibility hearing before the Immigration Division and through the PRRA process. This Application should be dismissed on the sole basis that it is premature. Further, the discretion of officers and the Minister respectively under subsections 44(1) and 44(2) of the IRPA has largely been settled by recent jurisprudence of this Court. The impugned decisions are reasonable and do not warrant the intervention of this Court. The Officer and Minister’s Delegate exercised their limited discretion in accordance with the guidance of this Court and the Federal Court of Appeal.
B. Preliminary Issue: Prematurity of the Application
[37] The Respondent argues that this Application should be dismissed on the ground of prematurity alone. The Respondent relies on the Federal Court of Appeal’s decision in Lin v Canada (Public Safety and Emergency Preparedness), 2021 FCA 81 [Lin]. In Lin, the Federal Court of Appeal found that Minister’s delegates acting under section 44 of the IRPA undertake what is akin to a screening exercise. A full opportunity to adduce evidence and advance factual and legal arguments is instead available before the Immigration Division and the Immigration Appeal Division. The applications in Lin, seeking judicial review of the Minister’s delegates’ decisions to refer the appellants to inadmissibility hearings, were therefore premature. The available and adequate administrative resources had not been pursued. Any exception to this general rule is very rare, requiring exceptional circumstances (Lin, above at paras 4-6).
[38] The underlying decisions in Lin concerned allegations of inadmissibility for misrepresentation, pursuant to subsection 40(1)(a) of the IRPA. The Respondent acknowledges that the Applicant in this current Application does not have a similar right of appeal to the Immigration Appeal Division, as the appellants possessed in Lin, owing to the operation of subsection 64(1) of the IRPA.
[39] Having access to both the Immigration Division and Immigration Appeal Division, the Federal Court of Appeal concluded in Lin that (Lin at para 4):
... The appellants will have a full opportunity to adduce evidence and advance their factual and legal arguments and concerns regarding the relevant issues in the Immigration Division and the Immigration Appeal Division. This includes any procedural fairness or substantive issues regarding the section 44 screening process that undermine the Immigration Division’s ability to proceed. It also includes whether there were any misrepresentations giving rise to the grant of permanent residence, the relevant knowledge of the appellants, and any humanitarian and compassionate considerations. Thus, in the present cases, proceedings before the Immigration Division and the Immigration Appeal Division are both available and adequate: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at para. 42.
[40] The Respondent nonetheless asserts that the Applicant in this case has an adequate alternative remedy available at the admissibility hearing before the Immigration Division in light of: (1) the convenience of the alternative remedy; (2) the nature of the error alleged; (3) the nature of the other forum which would deal with the issue, including remedial capacity; (4) the expertise of the alternative decision maker; and (5) economical use of judicial resources and costs (Strickland v Canada, 2015 SCC 37 [Strickland] at para 42; Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at paras 30-32, leave to appeal to SCC refused 34311 (3 November 2011)).
[41] I agree with the Applicant that the consideration of prematurity requires a close attention to the facts. The section 44 process is inclusive of a variety of inadmissibility grounds, and applies to both permanent residents and foreign nationals. I note the Federal Court of Appeal’s statements in Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 [Cha] at paragraphs 21 to 22:
[21] Subsection 44(2) of the Act applies to all grounds of inadmissibility. These grounds encompass such diverse areas as security, human or international rights violations, serious criminality, criminality, organized criminality, health, financial reasons, misrepresentation and non-compliance with the Act. The complexity of the facts at issue varies from ground to ground. Some grounds have legal components, others not. The subsection applies to permanent residents and to foreign nationals, who are not usually subject to the same treatment under the terms of the Act. The subsection applies both to the power of the Minister's delegate to refer the report to the Immigration Division and to his power to issue the removal order himself.
[22] The scope of the discretion, therefore, may end up varying depending on the grounds alleged, on whether the person concerned is a permanent resident or a foreign national and on whether the report is referred or not to the Immigration Division. There may be a room for discretion in some cases, and none in others. This is why it was wise to use the term "may".
[42] I find that the circumstances in Lin are distinguishable from the current facts of this case and that the Applicant does not have an adequate alternative remedy in the form of an admissibility hearing before the Immigration Division. For the reasons below, this Application is not premature.
[43] The section 44 process does not result in a change of status for an applicant. The Federal Court of Appeal in Sharma aptly describes at paragraph 25: “While these decisions are important in the sense that they trigger the process that may ultimately strip the appellant of his permanent residency, they are of no immediate and practical consequence for the appellant”. The Immigration Division, seized of a section 44 report, will make the determination in this regard. The jurisprudence that likens the process under section 44 of the IRPA to a screening process is instructive.
[44] However, in discussing the duty of fairness owed by an officer and the Minister in the subsection 44(1) decision to write and subsection 44(2) referral decision, the Federal Court of Appeal stated (Sharma at para 24):
[24] That being said, I am prepared to accept that the decisions to make a report and to subsequently refer it to the ID are not without significance. Considering that, once referred, the options of the ID appear to be very limited since it “shall make” a removal order if satisfied that the foreign national or the permanent resident is inadmissible, it would appear that the only discretion (albeit very limited) to prevent a foreign national or permanent resident from being removed rests with the immigration officer and the Minister or his delegate…
[45] Section 45 of the IRPA provides:
Decision
Décision
45 The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
45 Après avoir procédé à une enquête, la Section de l’immigration rend telle des décisions suivantes :
(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;
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) 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;
b) octroyer à l’étranger le statut de résident permanent ou temporaire sur preuve qu’il se conforme à la présente loi;
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
c) autoriser le résident permanent ou l’étranger à entrer, avec ou sans conditions, au Canada pour contrôle complémentaire;
(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.
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.
[46] The factors enumerated in the Supreme Court of Canada’s decision in Strickland, at paragraph 42, is not a closed checklist. A Court must consider the available alternative and the appropriateness of judicial review, and question whether the alternative remedy is adequate in all the circumstances to address the applicant’s grievance (Strickland at paras 42-43).
[47] Considering the limited discretion of the Immigration Division, which “shall make” a removal order, where a permanent resident is deemed inadmissible and the discretion that an officer or the Minister may exercise to prevent a foreign national or permanent resident from being removed, I do not find this Application is premature, given the “nature of the other forum which could deal with the issue, including its remedial capacity” being more narrow than the section 44 screening process that precedes it (Strickland at para 42). Judicial review is appropriate in the circumstances (Strickland at para 43).
[48] Although defined as a screening process, the section 44 process covers a breadth of inadmissibility grounds, engaging different considerations in each context. In the current circumstances of this case, I do not find that the admissibility hearing before the Immigration Division constitutes an adequate alternative remedy, rendering this Application premature.
C. Duty of Procedural Fairness
[49] The Applicant’s allegations as it relates to the breach of procedural fairness of the Officer and Minister’s Delegate are two-fold. First, in the decisions to write and refer the section 44 reports, the Officer and Minister’s Delegate considered the seriousness of the allegation of inadmissibility to be paramount, after having foreclosed the Applicant’s ability to respond to those allegations. Second, the Officer failed to provide relevant disclosure to the Applicant, as sought in the Disclosure Request.
[50] While the duty of procedural fairness under both the subsection 44(1) and section 44(2) decisions under the IRPA have largely been considered concurrently below, where differences exist, they are referred to explicitly.
[51] The errors described by the Applicant allegedly arise in that the Officer unreasonably found and communicated to the Applicant that “submissions in these sorts of circumstances are generally regarding an individual’s personal circumstances as to why a report should not be referred” and “at this stage [the Applicant] is only required to know the factual basis of the allegation against him which has already been disclosed in the form of the s. 44 report highlights. As such the appropriate time for disclosure is when/if a report is forwarded for a hearing”.
[52] The Applicant submits the alleged errors arise even on a lower threshold of procedural fairness generally found in the jurisprudence. In consideration of the factors outlined in Baker, above, this Court and the Federal Court of Appeal have found that a lower level of procedural fairness is engaged by discretion exercised by an officer or the Minister pursuant to section 44 of the IRPA.
[53] The five, non-exhaustive Baker factors are: (1) the nature of the decision; (2) the statutory scheme; (3) the importance of the decision to the affected individuals; (4) the legitimate expectations of the person challenging the decision; and (5) the administrative decision-maker’s choice of procedure (Baker at paras 23-28).
[54] In brief, the Federal Court of Appeal has found that in balancing all of the Baker factors, “the duty of fairness is clearly not at the high end of the spectrum in the context of decisions made pursuant to subsections 44(1) and (2)” on the basis of (Sharma at paras 22-29):
Decisions of an officer or the Minister under subsections 44(1) and 44(2) of the IRPA bear none of the hallmarks of a judicial or quasi-judicial process. Although, decisions to make and refer a section 44 report are not without significance. This factor favours a heightened level of procedural fairness;
The subsection 44(1) report, the subsection 44(2) referral and the Immigration Division’s removal order are not necessarily determinative of whether an applicant/appellant will be removed from Canada, as there are possibilities of seeking relief under other provisions of the IRPA. Subsection 44(1) and 44(2) decisions are of no immediate and practical consequence;
No legitimate expectation was found to exist in Sharma; and
The IRPA does not set out any particular procedure to be followed in making a section 44 report and referring it to the Immigration Division – the procedure to be followed has been left to the decision-maker.
[55] Similarly, in Hernandez, this Court considered the factors laid out in Baker and found that they “point toward a more relaxed duty of fairness”. At a minimum, the duty of procedural fairness required that the affected person be given an opportunity to make submissions and to know the case against him or her (Hernandez v Canada (MCI), [2005] FCJ No 533 [Hernandez] at paras 70-72).
[56] In light of the Applicant’s submission that a number of factors further support a higher level of procedural fairness, as it relates to the decisions to both write and refer a section 44 report, the Baker factors warrant re-examination in the particular context of this case. The Applicant asks this Court to rely on the decision in Hernandez, above, as the most appropriate starting point. The Applicant argues that the Federal Court’s decision in Hernandez has comprehensively taken into account the circumstances allegedly informing the duty of procedural fairness and the scope of discretion exercised under subsections 44(1) and 44(2) of the IRPA, including the legislative history of the IRPA.
[57] The Applicant further submits the following factors for this Court’s consideration, as outlined at paragraph 57 of the Applicant’s Further Memorandum of Fact and Law:
The use of the word “may” write/refer in section 44 of the IRPA, which is a significant and intentional change from the use of the word “shall”;
The presumptive rule in section 11 of the Interpretation Act, RSC, 1985, c I-21 [Interpretation Act] is that “may” is permissive and “shall” is not;
Historically, permanent resident status has been recognized as critical, which should be removed only “for very serious reasons” and after consideration of “ameliorating or compassionate factors such as length of residence”. Before the creation of the Immigration Appeal Board, this power vested with the Minister. Through the IRPA amendments, Parliament can be seen as seeking to bring this power back to the Minister not to be removing it (Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at para 38);
That permanent residence is a status recognized in the Charter, under section 6 mobility rights, and when citizenship was first created as a lawful status in 1947, it automatically captured persons who were domiciled in Canada for at least 5 years (domiciled status has since become known as permanent residence) (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11);
That Articles 12 and 13 of the International Covenant on Civil and Political Rights, which Canada acceded to on May 19, 1976, provide for the rights of entry into one’s own country, which encompasses long-term permanent residents, and for expulsion only for compelling reasons of national security, with a right for review of the reasons against expulsion. Articles 17 and 23 also provide for the rights against interference with family and home, and the recognition of the family as the natural and fundamental unit of society which is entitled to protection by society and the State;
That the Supreme Court of Canada has recognized that deportation can have “a more significant impact on the accused than the criminal sanction itself… They may be forced to leave a country they called home for decades. They may return to a country were they no longer have any personal connections, or even speak the language, if they emigrated as children. If they have family in Canada, they and their family members face dislocation or permanent separation” (R v Wong, [2018] 1 SCR 696 at para 72);
That new bars and restrictions enacted since 2012 on me