Date: 19980812
Docket: IMM-3873-96, IMM-4581-97
BETWEEN: IMM-3873-96
SAYED HOSSEINI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
IMM-4581-97
SAYED HOSSEINI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDERS
MacKAY J.
[1] By application for leave and judicial review, dated October 24, 1996, the applicant seeks, in file IMM-3873-96, judicial review of a decision of a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the panel"), dated October 3, 1996, finding the applicant not to be a Convention refugee. IMM-4581-97 is an application for leave and judicial review, dated October 29, 1997, seeking judicial review of a decision of an Immigration and Refugee Board panel, dated September 30, 1997, denying a motion of the applicant which questioned the jurisdiction of the panel to consider the applicant's claim. The applications were heard together in Toronto.
Background
[2] The applicant is a Shiite Muslim and a citizen of Afghanistan alleging persecution in that country by reason of his ethnicity and religion. He left Afghanistan in 1977, for economic reasons, to live in Iran. There, he joined the Mujahdeen, an organization devoted, at the time, to overthrowing the then-Communist regime in Afghanistan. The applicant travelled to Pakistan in his capacity as a member of the Mujahdeen. While engaged in the cross-border delivery of arms to rebels in Afghanistan, the applicant was captured and tortured, which led to his suffering post-traumatic stress disorder. Escaping, he ended up back in Pakistan, where he received medical treatment. He travelled from there to India, and eventually, after six years in that country, he arrived in Canada in late December 1987.
[3] After his arrival in Canada, the applicant engaged in heroin trafficking, and he was charged with, and he pleaded guilty to, unlawfully trafficking in heroin and to being in possession of a narcotic for the purposes of trafficking, both offences under the Narcotic Control Act. The applicant was sentenced in December 1991 to time served of one year plus seven years. He was placed on day parole after serving 15 months of his sentence, and he was on full parole from April 1994.
Refugee Proceedings
[4] When the applicant arrived in Canada in 1987, he made a refugee claim at the port of entry, and he made a formal claim in January 1988 at an immigration inquiry over which an adjudicator presided, in accordance with the system then in place for considering refugee claims. The inquiry was adjourned for the purposes of an examination under oath, pursuant to s-s.44(1) of the Immigration Act, R.S.C. 1985, c. I-2, as it then was. This section read:
| 44.(1) Where, at any time during an inquiry under this Act, the person who is the subject of the inquiry claims to be a Convention refugee, the inquiry shall be continued and, if it is determined that, but for that claim, a removal order or a departure notice would be made or issued with respect to that person, the inquiry shall be adjourned and that person shall be examined under oath by a senior immigration officer respecting his claim.
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44.(1) La revendication du statut de réfugié au sens de la Convention n'empêche pas la poursuite de l'enquête; s'il est établi ultérieurement qu'en l'absence d'une telle prétention, elle aurait donné lieu à une mesure de renvoi ou d'interdiction de séjour, l'enquête est suspendue et un agent principal procède à l'interrogatoire sous serment de l'intéressé.
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[5] While an examination under oath was conducted on August 24, 1988, a determination concerning the applicant's claim was never rendered on behalf of the Minister, and the applicant ultimately became a member of the "backlog".
[6] On January 1, 1989, Bill C-55 (hereafter referred to as the "1989 law") was enacted and substantially modified the Immigration Act. Under the system in place between that date and January 31, 1993, refugee claims were to be pre-screened for eligibility by an adjudicator and a member of the Refugee Division in a "credible basis hearing". The relevant sections of the transitional provisions associated with these changes read as follows:
| 41. Notwithstanding any provision of the said Act, the following persons, being persons who claim to be Convention refugees, are eligible to have their claims determined by the Refugee Division:
| (a) every person who, on the commencement day, is the subject of an inquiry that is in adjournment pursuant to subsection 45(1) of the former Act [i.e. s-s.44(1) of R.S.C. 1985, c. I-2] and whose claim has not then been determined by the Minister under subsection 45(4) of the former Act; |
...
42.(1) Where, by virtue of paragraph 41(a) or (b), a person is eligible to have a claim to be a Convention refugee determined by the Refugee Division, a senior immigration officer shall cause a hearing to be held before an adjudicator and a member of the Refugee Division with respect to the claimant.
...
43.(1) Where, pursuant to section 42, a hearing is held before an adjudicator and a member of the Refugee Division, the adjudicator and member shall determine whether the claimant has a credible basis for the claim.
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41. Malgré toute disposition de la nouvelle loi, la revendication du statut de réfugié au sens de la Convention est recevable par la section du statut si l'intéressé se trouve dans l'une ou l'autre des situations suivantes:
| a) l'enquête dont, à la date de référence, il fait l'objet a été ajournée conformément au paragraphe 45(1) de l'ancienne lou et le ministre n'a pas encore, aux termes du paragraph 45(4) de cette loi, rendu sa décision; |
...
42.(1) Dans le cas où la revendication est recevable aux termes des alinéas 41a) ou b), l'agent d'immigration supérieur fait tenir une audience devant un arbitre et un membre de la section du statut.
...
43.(1) Dans le cas visés à l'article 42, l'arbitre et le membre de la section du statut chargés de l'audience déterminent si la revendication a un minimum de fondement.
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[7] On October 7, 1992, despite assertions to the contrary in the applicant's affidavit filed in support of the application now under consideration, an inquiry was evidently convened by an adjudicator at the Collins Bay Institution, where the applicant was apparently incarcerated. The inquiry was said to be held "under provisions of the Immigration Act ". At that inquiry, the following exchange took place:
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Q. Mr. Hosseini, do you claim to be a convention refugee? |
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Q. In that case, the inquiry will also adjourn for the presence of a Refugee Board member. That Board member and myself will consider your claim. We will not decide whether you are a convention refugee. We will decide whether to send your claim to the Refugee Board for a final decision. |
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[8] That inquiry was adjourned. It resumed on December 4, 1992 when a different adjudicator and a member of the Refugee Division were present. The matter was adjourned once more to allow the applicant to obtain counsel.
[9] On February 10, 1993, the inquiry was resumed with only an adjudicator present. At its conclusion a conditional deportation order was issued and the adjudicator alone referred the claim to the Refugee Division. This decision was rendered 10 days after the Immigration Act was further amended by the enactment of Bill C-86 (S.C. 1992, c.49) (hereafter the "1993 law"). Under the 1993 law, referrals to the Refugee Division are to be made by a senior immigration officer pursuant to s.44, not by an adjudicator or a credible basis hearing panel, except for cases included under s.110 of that 1993 law, which reads:
| 110. Any inquiry or hearing under any provision of the Immigration Act amended or repealed by this Act that was commenced before the coming into force of the amendment or repeal shall continue to a determination as though that provision had not been amended or repealed.
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110. Les enquêtes ou audiences prévues par des dispositions de la Loi sur l'immigration modifiées ou abrogées par la présente loi sont tenues, et les décisions auxquelles elles donnent lieu sont rendues, comme si ces dispositions n'avaient pas été modifiées ou abrogées si, à la date d'entrée en vigueur de la modification ou de l'abrogation, elles avaient été commencées.
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Section 112 of the 1993 law provides:
| 112. Notwithstanding section 110,
| (a) every claim to be a Convention refugee made between January 1, 1989 and the day on which this section comes into force, and in respect of which no determination of credible basis had been made as of that day, shall be referred to the Refugee Division; and |
| (b) any order, any including any removal order or conditional deportation order, made as a result of any inquiry or hearing referred to in that section shall be made on the basis of the provisions of the Immigration Act in force on the day the order is made. |
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112. Par dérogation à l'article 110:
| a) toutes les revendications du statut de réfugié au sens de la Convention présentées entre le 1er janvier 1989 et la date d'entrée en vigueur du présent article et dont il n'a pas encore été décidé à cette date si elles avaient un minimum de fondement sont déférées à la section du statut; |
| b) les mesures découlant des enquêtes ou audiences visées à l'article 110, notamment les mesures de renvoi ou les mesures d'expulsion conditionelle, sont prises conformément aux dispositions de la Loi sur l'immigration, dans leur version édictée par la présente loi, en vigueur au moment de la prise. |
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[10] In the case at bar, the adjudicator penned in, beside the notation of his referral decision, "T.P. 112", which the applicant takes to mean Transitional Provisions s.112. Following that referral, the applicant was found not to be a Convention refugee by the Refugee Division by decision dated October 3, 1996. The key passage of the panel's reasons read as follows:
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From the totality of evidence, the panel finds that many groups defined by religion, ethnic identity, gender, etc., are at serious risk in Afghanistan today. The claimant's fear is based on his Hazara and Shiite identity, which he maintains would lead to persecution from Sunni militias, the so-called government forces and the Taliban. The panel finds, on the preponderance of the evidence, that the claimant has a well-founded fear of persecution by reason of his personal identity and, further, that he is unable to avail himself of any adequate protection within his country. ... Having so found, the panel must then consider whether the claimant would be excluded under Article 1(F)(c) of the Convention... |
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The panel then found that the applicant, having been convicted of drug trafficking, an offence viewed as contrary to the purposes and principles of the United Nations, was excluded from the definition of "Convention refugee" in the Act by virtue of Article 1(F)(c) and he was therefore, not a Convention refugee. Article 1(F)(c) of the Convention provides:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
| (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; |
| (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; |
| (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
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F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser:
| a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; |
| b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; |
| c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. |
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[11] Subsequently, the applicant brought a motion to the Refugee Division for an order that the Division did not have jurisdiction to hear the applicant"s claim in the first place. By decision dated September 30, 1997, the Division dismissed the motion, finding that it did have jurisdiction and that, in the alternative, it was functus officio .
[12] The applicant brings an application for judicial review (IMM-3873-96) of the October 3, 1996 decision, challenging the panel"s jurisdiction to hear his claim and an application for judicial review (IMM-4581-97) challenging the panel"s decision of September 30, 1997. In supplemental written submissions and in oral argument, the applicant also urges that, in the alternative, the panel erred in law in relying on the exclusion clause of Article 1(F)(c) in its October 1996 decision.
Issues
[13] In my opinion, the issues in these applications are as follows:
| 1. Did the panel have jurisdiction to render the October 3, 1996 decision? |
| 2. Did the panel err in denying the applicant's motion on September 30, 1997? |
| 3. Did the panel, in rendering the October 3, 1996 decision err in finding that the applicant was excluded by virtue of Article 1(F)(c) of the Convention? |
| 4. What remedy is appropriate in the case at bar? |
The panel's jurisdiction
[14] The applicant urges, on the basis of the statutory changes summarized above, that an adjudicator, sitting alone, had no jurisdiction to refer Mr. Hosseini"s claim to the Refugee Division. Before February 1, 1993, a referral was to be made by an adjudicator and a member of the Refugee Division. After January 31, 1993, a senior immigration officer, not an adjudicator, had jurisdiction to refer the case.
[15] The apparent reliance of the adjudicator on s.112 of the 1993 law was not appropriate, it is urged, because the applicant did not make his claim between January 1, 1989 and the date on which the 1993 law came into force. Instead, his claim was made initially when the claimant arrived at the port of entry in 1987, a claim reiterated in January 1988 at his first immigration inquiry which was adjourned, pursuant to s-s.44(1) of the Act as it then existed. Instead, it is submitted that s.110 of the 1993 law applies to the applicant. The applicant urges that he should have been dealt with under the provisions of the Immigration Act as it was before being amended on February 1, 1993; in particular, his claim should have been dealt with by a credible basis hearing.
[16] The respondent, for its part, urges that there is no evidence that the applicant objected to the jurisdiction of the Refugee Division to hear his claim, or that he sought judicial review of the decision of the adjudicator dated February 10, 1993, referring the applicant to the panel. It is submitted that the applicant is actually seeking to review the decision of this adjudicator, a challenge which is out of time.
[17] It is urged by the applicant that there is no time bar on a challenge of jurisdiction to deal with a matter. The applicant submits that, in fact, recent cases from the Federal Court dealing with s-s.70(5) "danger to the public" determinations suggest that the Court will not review the issuance of a danger certificate until the Immigration and Appeal Board had rendered a decision declining jurisdiction because of the certificate. By analogy, to make a determination on the jurisdiction of the Refugee Division, the Court must have before it a decision of the Refugee Division.
[18] In my view, between January 1, 1989 and January 31, 1993, the applicant was a member of the backlog whose eligibility for refugee status was to be determined, under amendments effected by the 1989 law, at a credible basis hearing before an adjudicator and member of the Refugee Division.
[19] Between January 1, 1989 and January 31, 1993, the applicant could only be referred to the Refugee Division by a credible basis hearing. At the time the applicant was referred to the Refugee Division, on February 10, 1993, the transitional provisions of the 1993 law were in force. It is my view that as the applicant's refugee claim antedated January 1, 1989, s.110 applied, not s.112, and the inquiry commenced in October 1992, presumably under provisions of the 1989 law, was to continue to a determination after a credible basis hearing as though the provisions then in effect were not subsequently amended or repealed.
[20] Support for this interpretation of s.110 is found in a consent order by Mr. Justice McKeown in Atta-Kyere v. MCI, IMM-1756-95, January 26, 1996. The facts in that case, as set out in the memorandum of argument of the applicant concerned, were similar to those in this case. Specifically, the applicant made a refugee claim before January 1, 1989, but never had a credible basis hearing. The applicant submitted that s.110 of the 1993 law required that the applicant be dealt with in accordance with the 1989 law, providing for the credible basis hearing regime. As he was not so dealt with, it was argued that the panel did not have jurisdiction. On consent, Mr. Justice McKeown ordered that the application for judicial review be allowed, that the panel's decision be set aside, and that the applicant be processed in accordance with the Refugee Claimants Designated Class regulations, which was to include, if necessary, treating the applicant as though his credible basis hearing had commenced prior to February 1, 1993. In effect, this would mean that the applicant was to have a credible basis hearing before the panel could have jurisdiction, a process preserved by s.110.
[21] I note that a consent order has no precedential value.1 Nevertheless, it is my view that this interpretation of s.110, inferred from the Order of McKeown J., is consistent with the position adopted in Sahayarajah v. Canada (Minister of Employment and Immigration)2, a decision of Mr. Justice Noël. There consideration was given to the regime under the Act before the 1989 law, and the impact of s.110 of the 1993 law on the provisions of the 1989 law. The question at issue was whether, following a negative finding in a credible basis hearing, an inquiry, which led to an exclusion order, could be recommenced under the pre-1989 law procedures after the coming into force of the 1993 law. In concluding that it could, Noël J., as he then was, considered the interpretation of s.110, and he wrote in part:
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Section 110 does not require that the inquiry be commenced under a provision repealed or amended by Bill C-86. It only requires that the inquiry be commenced before its enactment. Furthermore, the fact that the inquiry was in a state of adjournment at the time Bill C-86 was enacted is irrelevant as the applicant remained the subject of an inquiry at the relevant time. One does not cease to be the subject of an inquiry merely because the inquiry is adjourned. |
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[22] In the case at bar the inquiry that commenced in October 1992 was concluded by the issuance of a conditional removal order in February 1993. However, the referral of the applicant's claim to the Refugee Division at the latter date was by an adjudicator alone, not by a credible basis panel, including a member of the Refugee Division.
[23] I conclude that after February 1, 1993, s.110 applied to the applicant's refugee claim. The respondent, in oral argument before me, urged that the applicant made a second refugee claim during the course of the 1992 inquiry, which claim was sufficient to bring him within the ambit of s.112. In support of this view, the respondent points to the passage quoted above (paragraph 7) from the transcript of the hearing on October 7, 1992, where the applicant was asked whether he claimed to be a Convention refugee. With respect, while the applicant may have re-iterated his claim then, the facts are clear that the claim dates from 1988. It was made before 1989 and the introduction of the 1989 law. A simple re-assertion of his claim that, on the record, pre-dated the legislative regime that became effective January 1, 1989, in my view, does not make s.112 of the transitional provisions of the 1993 law applicable to the applicant's claim.
[24] On the issue of timely objection to jurisdiction, the applicant, in IMM-4581-97, relies upon the case of Byers Transport Ltd. v. Kosanovich.3 There, the Court of Appeal held that an adjudicator under the Canada Labour Code was not excused from considering the question of jurisdiction by the silence or consent, expressed or implied, of the parties. However, it should be noted that in that case the Court held that by virtue of the statute there at issue, there was an affirmative duty for the adjudicator to contemplate jurisdiction before commencing his or her inquiry.
[25] In F. Zormann and Co. Real Estate Ltd. v. Toronto Real Estate Board4, a case dealing with the jurisdiction of an arbitration committee deciding a dispute between two members of the Toronto Real Estate Board, Reid J., writing for the Court, held:
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While the board will not have conferred upon it jurisdiction that it does not otherwise have simply because of a failure to object at that time, there is another aspect of this failure which is worthy of consideration. That is the effect upon the exercise of the discretion of this Court of a failure to make an objection at an appropriate point. |
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There are good practical reasons for requiring objections to be made at such a point as the hearing of the arbitration itself. It is useful to have the board's decision upon it. The board may make a decision that is entirely in favour of the objector. That would mean that there would be no necessity to raise that objection later in a court. There are practical reasons for it. I go to this length because we engaged in a considerable discussion with applicant's counsel about the failure to take objection to all but one of the issues that was raised before us. As I see it, that failure should not be treated as fatal in this case for the issue here is jurisdiction. |
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This case was cited by Mr. Justice Dubé in New Brunswick Egg Marketing Board v. Canadian Egg Marketing Agency5, where His Lordship held that the fact that the party did not object on jurisdictional grounds in a timely manner did not in and of itself confer jurisdiction on the body whose decision was there being reviewed.
[26] In Kupeyan v. Royal College of Dental Surgeons of Ontario6 Anderson J, writing for the Ontario Divisional Court commented:
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Even if the appellant were taken to have consented, and there is no evidence of that save such inference as can be drawn from participation in the proceedings, it would make no difference. See Essex County Council v. Essex Incorporated Congregational Church Union, [1963] A.C. 808 at 820-21 (H.L.), per Lord Reid: |
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... it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such court or tribunal has acted without jurisdiction. |
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and per Lord Morris of Borth-y-Gest, at p. 825: |
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The tribunal could not assume a jurisdiction with which it would only be endowed if certain steps had been taken and certain conditions satisfied. |
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[27] A different position is implied by Cetoute v. Canada (Minister of Employment and Immigration)7, a decision of the Federal Court of Appeal. At issue there was the jurisdiction of the Immigration Appeal Board. In dismissing an application for judicial review, Mr. Justice Hugessen commented:
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Whether or not the decision of the Trial Division in the case of Sethi v. Minister of Employment and Immigration...is well founded, it can have no bearing on the outcome of the present case because the record here does not show any timely objection taken to the Board's jurisdiction. |
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[28] In this case, I am not persuaded that the absence of a timely objection to jurisdiction defeats the applicant's case. It is my view that an objection to jurisdiction is not waived by the applicant's failure to raise it during initial proceedings before the panel of the Refugee Division. An objection brought by application for leave and judicial review is, in my view, a timely objection.
The Panel's dismissal of the applicant's motion
[29] The remaining issue in file IMM-4581-97 is whether the Refugee Division erred in its alternative finding that it was functus officio and had no authority to rescind its previous decision. In oral argument before me, the respondent urged that this matter was moot. With respect, I agree. Where the Court declines to award relief because the issue raised for determination is moot, it determines, in effect, that there is 1) an absence of a justiciable issue between the parties, and 2) no reason for the judge to exercise discretion to hear the case.8
[30] In essence, the panel decision here being reviewed, ie. that it was functus officio, was an alternative justification for not coming to a finding desired by the applicant. Here, the Court makes that finding, i.e that the panel was without jurisdiction to consider the claim. As a result, in my view, a decision by the Court on the issue of whether the panel erred in finding itself functus officio will not have the effect of resolving some controversy which affects or may affect the rights of the parties, as that controversy is here resolved. Further, on this same basis, there is no basis, in my opinion, for the Court to exercise its discretion to hear this matter.
Exclusion under Article 1(F)(c)
[31] While decision in this case was under reserve, the Supreme Court of Canada released its decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration).9 Subsequently, additional submissions in writing from counsel, on the significance of this decision for the case at bar were received. The applicant urges that, based on Pushpanathan, the panel erred in law in excluding the applicant under Article 1(F)(c) of the Convention. In that case, Mr. Justice Bastarache, for the majority of the Court, concluded:
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Even though international trafficking in drugs is an extremely serious problem that the United Nations has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution, either through a specific designation as an act contrary to the purposes and principles of the United Nations (the first category), or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights (the second category), individuals should not be deprived of the essential protections contained in the Convention for having committed those acts. Article 33 and its counterparts in the Act are designed to deal with the expulsion of individuals who present a threat to Canadian society, and the grounds for such a determination are wider and more clearly articulated. It is therefore clear that my determination of the scope of Article 1F(c) of the Convention, as incorporated in domestic law by s. 2(1) of the Act, does not preclude the Minister from taking appropriate measures to ensure the safety of Canadians. |
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In my view, the appellant's conspiring to traffic in a narcotic is not a violation of Article 1F(c). |
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[32] In my opinion, in light of the Supreme Court's decision in Pushpanathan, it is now clear that in this case the applicant cannot be excluded from consideration as a Convention refugee under Article 1(F)(c) because of those drug crimes for which he was convicted. In excluding his claim on this ground, the panel erred in law.
Remedy
[33] In additional written arguments submitted after the hearing, the applicant maintains his arguments regarding the jurisdiction of the panel and urges, in the alternative, that the Court find the applicant to be a refugee on the basis that, but for their error of law regarding Article 1(F)(c), the panel would have found the applicant to be a refugee. It is noted that the panel found that the applicant had a well-founded fear of persecution if he were to be returned to his native country, Afghanistan.
[34] With respect, the applicant's objections to the panel's decision in this matter create difficulties in terms of remedy. If the panel was without jurisdiction, as the applicant has persuaded me, it is difficult for the applicant to rely upon the panel's finding of fact that he had a well-founded fear of persecution, and argue that this Court should, if it has jurisdiction to do so, determine the applicant to be a refugee.
[35] In oral argument before me, the respondent urged that the Court not interfere with the panel's decision, even if the procedure by which the applicant was referred to the panel was flawed. It was noted, correctly in my view, that if his claim had been processed properly, and a favourable result reached, the applicant would have ended up before the panel. As the applicant could expect no more favourable process than that which he received, he was not prejudiced. It is urged, in reliance by analogy on Yassine v. Minister of Employment and Immigration10, that this Court should not intervene. In Yassine, the Federal Court of Appeal decided that it would be pointless to return the matter there at issue to the Refugee Division, despite a breach of natural justice, where the outcome at the Division had been inevitable in any case.
[36] The respondent relies also on Pal v. Canada (Minister of Employment and Immigration).11 There, Madame Justice Reed was required to determine what remedy was appropriate where there had been a breach of natural justice. In the course of her reasoning, she made the following observation:
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The question to be answered, then, is whether the breach of natural justice was one which could have little or no effect on the outcome of the decision as a whole. A decision of this Court to grant relief under section 18.1(4) of the Federal Court Act is discretionary. This is reflected in the text of that subsection which provides that the Court "may grant relief if it is satisfied that" the Board has "failed to observe a principle of natural justice [or] procedural fairness". This wording reflects the discretionary nature of the old prerogative writs which section 18.1(4) replaces. Thus, if no prejudice is caused by an erroneous procedure or decision an order quashing the decision will not normally be given. If no real purpose will be served by requiring another hearing, one will not be ordered. |
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[37] In the case at bar, I decline to intervene because the panel was technically without jurisdiction. No purpose would be served by sending this matter back on this ground as, in the most favourable circumstances, the applicant would re-appear before the Refugee Division once more. No prejudice has been caused to the applicant by the panel dealing with the matter despite flawed referral procedures that did not meet requirements under the Act and its transitional provisions. The parties agree that the applicant was ineligible for processing under the Backlog Regulations, largely because s-s.3(2) of these regulations indicate that the backlog class is not to include persons described in paragraph 19(1)(c) of the Immigration Act, a paragraph that describes the applicant. I agree with submissions made by the respondent to the Refugee Division in the motion at issue in IMM-4581-97, as adopted in the panel"s reasons:
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The essence of the argument of the Minister"s representative is that there is no further benefit to the Applicant which has not already been afforded and that the Refugee Division cannot provide him with any remedy that has not already been provided, most importantly a fair hearing into his refugee claim. The Minister"s representative argued that irrespective of the method of referral, the effect for the Applicant would have been the same: access to a full hearing before the Refugee Division. This, the argument held, was predicated by the particular circumstances of the claimant"s case and the legislative provisions in place at the time. The Applicant was determined not to be included in the Refugee Claimants Designated Class Regulations (RCDCR) as a result of a conviction for an offence under the Narcotics Control Act. This conviction put him into the inadmissible class 19(1)(c) of the Immigration Act. According to the Minister"s representative, the effect of the RCDCR was to allow the person with a credible basis to apply for landing. However, even if the Applicant had been determined to have a credible basis, he would not have been eligible to apply for landing due to the conviction which excluded him from those regulations. Because of the timing of the inquiry, the Applicant was referred to the Refugee Division for a full hearing, which was a benefit to him, since he did not have to first meet the credible basis test...Denying the claimant the opportunity to be heard would have been an injustice and since a hearing before the Refugee Division was the only hearing open to the claimant following his Immigration Inquiry, we cannot conclude that the Refugee Division did not have jurisdiction to hear the claim. Having advanced a refugee claim as the Applicant did, we do not find that it was his intention nor his right not to be heard. |
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[38] While I decline to set aside the panel's decision on jurisdictional grounds, for the reasons outlined above, I find that the panel erred in law in finding the applicant was excluded from consideration as a refugee by Article 1(F)(c) of the Convention. As noted above, in additional written submissions, the applicant urged that the Court should determine the applicant to be a Convention refugee as the panel made a clear finding of fact that the applicant has a well founded fear of persecution. The applicant points to Moreno v. Canada (Minister of Employment and Immigration)12 where, the Federal Court of Appeal, dealing with an error of law committed by the Refugee Division in the application of Article 1(F) of the Convention, wrote, in obiter, that
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...in the event that the Board errs with respect to the application of the exclusion clause but has also ruled on the application of the inclusion clause, it may be unnecessary to refer the matter back to the Board. |
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[39] The Act provides no explicit power to the Trial Division to make the decision that should have been made by the panel. The powers of the Trial Division on judicial review are set out in s-s.18.1(3), which reads:
| (3) On an application for judicial review the Trial Division may
| (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or |
| (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. |
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(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut:
| a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; |
| b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral. |
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[40] In Turanskaya v. Canada (Minister of Citizenship and Immigration)13, the Federal Court of Appeal had occasion to answer the following certified question:
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Does the Federal Court Trial Division have jurisdiction to direct the Convention Refugee Determination Division to declare an applicant to be a Convention refugee pursuant to s. 18.1(3)(b) of the Federal Court Act? |
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At trial, Simpson J. had concluded as follows:
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In this case, the Board concluded that the Applicant had a well-founded fear of persecution in relation to Cuba. I am satisfied that, but for the Error which caused the Board to require the Applicant to demonstrate a well-founded fear in respect of the Ukraine as well, the Board would have declared the Applicant to be a Convention refugee based on her Cuban situation. |
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Accordingly, an order will go directing the Board to declare the Applicant to be a Convention refugee.14 |
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[41] In answering the question before it, the Court of Appeal determined:
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The "directions" which the Trial Division is authorized to give under paragraph 18.1(3)(b) will vary with the circumstances of a particular case. If, for example, issues of fact remain to be resolved it would be appropriate for the Trial Division to refer a matter back for a new hearing before the same or differently constituted panel depending on the circumstances. That, however, is not the case here. The only issue to be resolved by the Trial Division was whether the Refugee Division had erred in law in determining the respondent not to be a Convention refugee because of her former habitual residence in the Ukraine. It is implicit in the decision of Simpson J. that the matter was referred back for determination on the record. The appellant raised no issue before her by way of judicial review with respect to findings of fact. It follows, therefore, that no issue of that kind remains unresolved. We are satisfied, in the circumstances, that Simpson J. exercised her discretion within the limits of paragraph 18.1(3)(b) by leaving the final determination to the Refugee Division on the basis that, with the error of law corrected, it declare the respondent to be a Convention refugee.15 |
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[42] I conclude that while the Court does not have the power, under s-s.18.1(3), to declare the applicant to be a refugee, it may return the matter to the Refugee Division with the direction that the Division issue such a determination where the Court is satisfied that, but for an error of law, the Division would have found the applicant to be a refugee.
Conclusion and Disposition
[43] I summarize my conclusions. I am persuaded that when the Refugee Division considered the applicant's claim the panel lacked statutory jurisdiction to hear the matter since, under transitional provisions of the Act, the matter should have been referred to the Division by a credible basis panel, not by an adjudicator. While reference of the applicant's claim to the panel was made without jurisdiction, the claim was one for which a hearing by the panel was the most favourable process for the application, and the panel was the only forum under the statute for dealing with his claim when it was finally considered. I am not prepared to exercise my discretion under s.18.1 and intervene in the panel's decision on the basis of an error of jurisdiction. The applicant would, under the best of circumstances, end up before the Refugee Division for consideration of his claim. He and has suffered no prejudice as a consequence of the technical flaw in his referral to that panel. Therefore, the panel's findings of fact stand.
[44] I find, however, that the panel, in rendering its October 3, 1996 decision, committed an error of law by excluding the applicant because of his convictions for drug offences on the basis of Article 1(F)(c). But for this error of law, the panel would have found the applicant to be a refugee. An Order goes directing that this matter be returned to the Refugee Division and that the Division determine the applicant to be a Convention refugee.
[45] I am not prepared to determine whether the panel was correct, in its subsequent decision, that it was functus officio in the applicant's case. That matter is now moot.
[46] Counsel for the applicant, in oral argument before me, proposed a number of questions for certification, relating to the jurisdictional issue, to the functus officio issue and to the proper interpretation of Article 1(F)(c). Counsel for the respondent submitted that no questions be certified, in large part because the circumstances of this case are not likely to prove of general interest.
[47] In my view, the question proposed in regard to Article 1(F)(c) has now been answered by the Supreme Court. As regards the other issues, I am not persuaded that the proposed question concerning jurisdiction of the Refugee panel in light of the transitional provisions of the statute is a matter of general importance. Further, since I have declined to determine the issue of whether the panel erred in its decision that it was functus, that issue is not one for certification. As I result, no questions are certified.
[48] In the result, an order issues allowing the applicant's application in court file IMM-3873-96, setting aside the decision rendered October 3, 1996, insofar as it related to Article 1(F)(c) of the Convention. The applicant's claim is referred to the Refugee Division for reconsideration, with the direction that it determine the matter in accord with its previous findings, excepting the error in its application of Article 1(F)(c) of the Convention, that the applicant had a well-founded fear of persecution, and cannot avail himself of protection, within his own country.
[49] A second order goes, in file IMM-4581-97, dismissing that application for judicial review.
[50] A copy of these Reasons shall be filed on both Court files.
W. Andrew MacKay
Judge
OTTAWA, Ontario
August 12, 1998.
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1 Uppal v. Canada (Min. of Employment & Immigration) (1987), 2 Imm. L.R. (2d) 143 (F.C.A.).
2 (July 21, 1993), Court File No. IMM-1691-93, [1993] F.C.J. No. 831 (F.C.T.D.).
3 [1995] 3 F.C. 354 (F.C.A.).
4 (1982), 36 O.R. (2d) 724 at 726-27 (Ont. Div. Ct.).
5 (1992), 55 F.T.R. 161 at 176.
6 (1982), 37 O.R. (2d) 737 at 749 (Ont. Div. Ct.).
7 (1988), 5 Imm. L.R. (2d) 62 at 62-3 (F.C.A.).
8 Community Before Cars Coalition v. National Capital Commission (1997), 135 F.T.R. 1.
9 (June 4, 1998), [1998] S.C.J. No. 46.
10 (1994), 172 N.R. 308 (F.C.A.).
11 (1993), 70 F.T.R. 289 at 295.
12 [1994] 1 F.C. 298 at 327 (F.C.A.).
13 (1997), 210 N.R. 235 (F.C.A.).
14 (1995), 111 F.T.R. 314 at 316.
15 Supra note 13 at 237.
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