Date: 20100908
Docket: IMM-4042-09
Citation: 2010 FC 882
Ottawa, Ontario, September 8, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
GORDON DOUGLAS ROSENBERRY
and MURIEL HARDWICK ROSENBERRY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application for judicial review of the decision of the Minister’s delegate
dated July 31, 2009, wherein the Minister’s delegate issued a removal order
against each of the applicants pursuant to Section 44 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) due to the applicants’
violations of subsections 41(a) and 29(2) of the Act.
[2]
The
applicants also raise the question of whether the procedure laid out in section
44 of the Act violates the constitutional principle of the separation of
powers.
[3]
The
applicants seek an order setting aside the decision.
Background
[4]
The
applicants are citizens of the United States whose daughter, Janice
Howie, is a permanent resident of Canada living in Edmonton, Alberta. In January
of 2008, Ms. Howie sponsored the applicants’ immigration to Canada as members
of the family class. Before the applicants had obtained a decision, they chose
to come to Canada. To that
end, the applicants sold their house in California and sent
their belongings to Ms. Howie’s residence.
[5]
The
applicants allege that at the time, they believed it was not a violation of
Canadian law to await the results of their application in Canada. However,
they were turned back at the Idaho Canada border because they failed to satisfy
the officer that they were entering Canada for a temporary
purpose. The applicants believe that they were also denied entry because the
applicant, Muriel Rosenberry, displayed symptoms of Alzheimer’s disease.
[6]
In
June of 2008, the applicants entered Canada at a different border
crossing and without proper authorization. They flew to Edmonton where they
had purchased a home prior to entering.
[7]
On
November 17, 2008, the applicants applied for a visitor status extension. It
was not until June 26, 2009, that Citizenship and Immigration Canada (CIC) at Edmonton finally
contacted the applicants and requested an interview regarding their request to
extend their stay. On July 3, 2009, counsel for the applicants wrote back
explaining that he wished to attend the interview to make submissions on behalf
of the applicants, but asked that the interview be postponed as he would be
away on the day scheduled.
[8]
Meanwhile,
given that nothing happened for several months, the applicants examined other
options. On July 4, 2009, the applicants submitted a second application for
permanent residence, this one from within Canada and on
humanitarian and compassionate (H&C) grounds under section 25 of the Act.
[9]
CIC
Edmonton informed applicants’ counsel’s office that the request to postpone was
declined and on July 9, 2009, an immigration officer went ahead with the
interview with another lawyer from counsel’s firm present. The immigration
officer denied the applicants’ visitor extension and by a letter dated July 14,
2009, the applicants were directed to leave Canada forthwith.
In the reasons for the decision, the officer examined the issue of hardship and
noted the applicants’ and Ms. Howie’s admission that even though they had sold
their house, the applicants could live with either of their sons in California.
[10]
These
reasons became the basis of inadmissibility reports under subsection 44(1) for
the applicants. The allegation of inadmissibility was relatively
straightforward: the applicants were foreign nationals who were inadmissible
pursuant to subsections 41(a) and 29(2) of the Act in that they had failed to
leave Canada at the end
of the period authorized for their stay.
[11]
On
July 31, 2009, the applicants attended an admissibility hearing with the
Minister’s delegate. Applicants’ counsel was also present and at the outset of
the hearing, sought an adjournment until the H&C application had been
processed. This request was denied. At the end of the hearing, the Minister’s delegate
issued removal orders for both applicants.
Issues
[12]
The
issues are as follows:
1. Does the procedure
laid out in section 44 of the Act comply with section 7 of the Charter?
2. Did the Minister’s delegate
breach the duty of fairness owed to the applicants by failing to grant an
adjournment?
Applicants’ Written Submissions
Constitutional Question
[13]
The
procedure laid out in section 44 violates the principles of fundamental
justice. A delegate of the Minister cannot review a report prepared by an
officer from the same department to adjudicate whether or not the person
referred to in that report should be removed. The same department is acting in
both an executive and judicial capacity thus, violating the constitutional
principle of the separation of powers. Therefore, all reports examined under
subsection 44(2) must be sent to the Immigration Division. The section 44
proceedings differs from an officer turning someone back at a port of entry
because in the former scenario, the visitor had already been granted permission
to enter, and is therefore entitled to be treated differently.
Breach of Procedural
Fairness
[14]
The
duty of fairness required the Minister’s delegate to provide the applicants
with an open procedure, with an opportunity to put forward their views and
evidence fully and to have these considered by the decision maker. This duty was
breached as the Minister’s delegate blocked the applicants from making
submissions and did not consider the evidence they submitted.
[15]
The
Minister’s delegate objected to the request of the applicants’ counsel to make
the preliminary application to adjourn the proceedings. She reluctantly
listened to the submission and then interrupted to seek proof of his authority
to act for the applicants and ultimately did not give him a full opportunity to
make his case. Counsel submitted a binder of materials in support of this
application addressing:
-
the
inadequacy of the previous interview (the July 9 interview);
-
the
length of the requested adjournment (the processing times of the H&C
application);
-
medical
evidence showing that although the applicant, Muriel Rosenberry was relatively
healthy when she came across the border, she was now in an advanced state of
Alzhiemer’s, making her departure quite impractical;
-
evidence
of previous compliance with the Act;
-
provisions
of the Act, Regulations and policy manuals dealing with flexibility in allowing
parents to visit Canada while awaiting processing of sponsorship
applications;
The binder was not looked at by the Minister’s
delegate.
[16]
The
duty of fairness also included the right to counsel. The Minister’s delegate’s
failure to consider these submissions violated that right.
Structural Breach of
Procedural Fairness
[17]
The
concern referenced above regarding individuals from the same department acting
in both the executive and judicial capacities, creates situation where there is
a reasonable apprehension of bias. The individual who adjudicates the report is
responsible to the same department as are those individuals who created the
report and will execute the decision.
Respondent’s Written Submissions
[18]
Foreign
nationals who are temporary residents in Canada receive
little substantive and procedural protection throughout the Act. Immigration
officers and delegates of the Minister under subsection 44(2) are often simply
on a fact finding mission. They are under an obligation to act on facts
indicating inadmissibility. The facts indicating inadmissibility in the present
case were undisputed. It is not the function of such officers to consider
H&C factors or risk factors that would be considered in a pre-removal risk
assessment.
[19]
There
was no breach of procedural fairness. The applicants had the benefit of legal
counsel at both their interview on July 9, 2009 and the hearing on July 31,
2009. The submission that they were denied the right to counsel is without
merit.
[20]
The
Minister’s delegate did not commit any reviewable error in making her decision.
She confirmed with the applicants that the allegations contained in the report
were substantiated by the facts and the evidence. She also ensured that the
applicants understood the allegations and that a removal order would be made
against them if the allegations were supported. She was not required to
consider H&C or risk factors.
Analysis and Decision
[21]
Issue
1
Does the procedure laid out
in section 44 of the Act comply with section 7 of the Charter?
The applicants’ submission cannot
succeed. The applicants’ prime concern seems to be that the case against the
applicants was prepared by an officer from the same department as the
Minister’s delegate who adjudicated the matter. This, says the applicants,
violates the principle of separation of powers. This argument is tantamount to
suggesting that all, or at least many, administrative decisions must be made by
a member of the judiciary or, at minimum, an independent quasi-judicial body
within the administration.
[22]
Clearly,
the unwritten constitutional principle of rule of law cannot be put into effect
without adequate separation of the executive, legislative and judicial
functions and powers by government. This has not been interpreted to render ultra
vires any provision authorizing the administrative branch of the executive
to make a decision without the supervision of a member of the judiciary or a
quasi-judicial body. I am not persuaded that there was a breach of section 7 of
the Charter.
[23]
Legislation
may duly authorize administrative officers to make decisions concerning the
rights and interests of individuals.
[24]
In
conclusion, I am of the view that the procedure laid out in section 44 does not
violate the constitutional principle of separation of powers.
[25]
The
fulfillment of the duty of fairness requires that administrative decision
makers appear to be unbiased (see R. v. R.D.S., [1997] 3 S.C.R. 484).
Administrative decision makers must also be independent (see Canadian
Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1
(QL), Brown, D. J. M., and J. M. Evans. Judicial Review of Administrative
Action in Canada, 1998 (loose-leaf ed. updated September 2009), at
paragraph 11.1110).
[26]
The
concepts of bias and lack of independence are related. The tribunal itself must
satisfy the standard of institutional independence. Where the tribunal’s
relationship with the executive is authorized by the statute itself, this
standard will be satisfied unless there is a violation of sections 7 or 11 of
the Charter (see Canadian Pacific Ltd. above and Charkaoui v. Canada (Citizenship
and Immigration), [2007] 1 S.C.R. 350, 276 D.L.R. (4th) 594).
[27]
Often
regulatory administrative agencies such as CIC, are duly authorized to combine
investigative, enforcement and adjudicative functions without being unlawfully
biased. Indeed, Brown and Evans, above, at paragraph 11.3360, have explained
why these multi-functional agencies often require such latitude in order to
adequately fulfill their roles:
In the administration of criminal
justice, a clear distinction is observed between the investigation and
prosecution of a matter by the police and Crown attorneys on the one hand, and
the trial of a charge by a judge on the other. Specifically, a judge can have
no prior knowledge of about a case as a result of having been involved at some
earlier stage of the process. By way of contrast, it is by no means unusual for
regulatory administrative agencies to combine the functions of law-makers,
law-enforcers and adjudicators.[...]
Accordingly, to mechanically impose the
concept of bias as it has developed to reflect the adversarial structure of
criminal justice onto multi-functional agencies may undermine the agency’s
ability to perform its regulatory functions effectively.
[28]
Working
in the same department has not been considered as a reason to find a lack of
independence, especially in the context of a decision in which neither the
officers involved nor the institution has any substantial interest.
[29]
Where
the party prosecuting the matter is found to have an interest in the outcome,
either pecuniary or proprietary, or that party appoints or exerts control over
the tribunal, the tribunal lacks institutional independence (see Canadian
Pacific Ltd. above).
[30]
In
the immigration context and particularly in the section 44 process, while the
officer preparing the report under subsection 44(1) may be analogized as the
prosecuting party, it is not clear what interest in the outcome such an
individual might have. Immigration officers and delegates of the Minister under
subsection 44(2) are simply agents of a multi-functional regulatory agency, the
relevant interest of which is to enforce Canadian immigration law, but with no
general interest in the outcomes of individual cases. Certainly, there is no
pecuniary or proprietary interest. Nor is there any indication that the officer
has any say in appointing of the officer who adjudicates the report under subsection
44(2).
[31]
Indeed,
the bifurcated process under section 44 enhances procedural safeguards by
ensuring that not one but two immigration officers must concur in the result
before exclusion action is taken. The practice appears to be that the officer who
executes the function under subsection 44(2) is senior to the officer who prepares
the subsection 44(1) report. In my opinion, this also enhances the appearance
that an independent conclusion is arrived at.
[32]
As
a result of the foregoing reasons, I am not satisfied that simply because the
individual who adjudicates the report and those individuals who created the
report work in the same department, that their decisions must be set aside for
a lack of institutional independence.
[33]
Issue
2
Did the Minister’s delegate
breach the duty of fairness owed to the applicants by failing to grant an
adjournment?
This judicial review
application stems not from the ultimate decision of the Minister’s delegate
finding the applicants inadmissible, but her refusal to adjourn the
admissibility proceeding pending the outcome of the applicants’ H&C
application. The Minister’s delegate refused the request without fully
examining the applicants’ submissions and the issue is whether that constituted
a breach of the duty of fairness. For the reasons below, I find that there was
no such breach.
[34]
Administrative
agencies are the masters of their own procedure and the power to adjourn
proceedings is generally discretionary (see Prassad v. Canada (Minister of
Employment and Immigration), [1989] 1 S.C.R. 560 at paragraph 48). As such,
while courts do not show any deference on matters of procedural fairness,
decisions granting or refusing adjournments are recognized as discretionary in
nature.
[35]
In
the present case, the duty of fairness did not require the granting of an
adjournment. Adjournments may be requested in administrative hearings to allow
an applicant a reasonable opportunity to present evidence and arguments to the decision
maker. The substance of the request for an adjournment in the present case had
nothing to do with the matter at hand. Waiting until the H&C application
had been processed would not have any effect on the issue being adjudicated,
the applicants’ current inadmissibility.
[36]
The
substance of the decision did not require the Minister’s delegate to consider
the H&C application or H&C factors at all. Under section 44 immigration
officials are simply involved in fact-finding. They are under an obligation to
act on facts indicating inadmissibility. It is not the function of such
officers to consider H&C factors or risk factors that would be considered
in a pre-removal risk assessment. This was recently confirmed in Cha v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409 at
paragraphs 35 and 37.
[37]
Nor
was it necessary in the context of the admissibility decision or the request
for an adjournment to consider issues relating to the practicability of
removal. At the time the request was made, it would have been reasonable for
the Minister’s delegate to consider that in the event that removal orders were
made against the applicants, the applicants would still be entitled to make a
request under section 48 of the Act to stay their removal, at which point a
pending H&C application and other factors relating the practicability of
removal are often considered.
[38]
The
duty of fairness did require the Minister’s delegate to listen to the primary
reason for the request. It did not require her to allow the proceedings to
grind to a halt and examine all of the applicants’ material. While it appears
that counsel for the applicants and the Minister’s delegate were less than warm
with each other, there is no indication that she misunderstood the reason for
the requested adjournment. Indeed, as it turned out, the request for the
adjournment was the only submission made.
[39]
When
applicants’ counsel initially made his request, he indicated that the basis of
the request was for an adjournment pending the H&C application. He also
verbally indicated the contents of a binder of documents in support of the
request including information on the length of processing times and medical
reports for Muriel Rosenberry. At this point, the Minister’s delegate did
question counsel’s authority to represent the elderly applicants. Then the
hearing continued in part:
Q [Minister’s Delegate]: Mr. Semotiuk I
have considered your application for an adjournment and my decision is to
proceed.
CSL: You haven’t considered all of my
submissions. You owe us a duty of fairness to at least hear the submission
before you make a decision. You may want to consider the Hernandez case. . . .
Q: Thank you. As I understand your
request, you have asked that this hearing be adjourned pending disposition of
your client’s application for permanent residence on humanitarian and
compassionate grounds. When was the application submitted?
CSL: It was submitted on July 4th.
Q: Of which year?
CSL: This year – 2009. I feel it would be
helpful to you if I just made one more submission.
Q: What would that be?
CSL: Janice [sic] Howey and her husband
are the only sources of support for these 80-year-old people in the world. Mr.
[sic] Rosenberry is suffering from an advanced case of Alzheimer’s and
Mr. Rosenberry is looking after her along with his daughter and son-in-law to
the best that they can. It would be cruel and unusual in these circumstances to
remove these people from Canada without at least hearing
their humanitarian and compassionate submissions.
Q: Thank you. I have considered your
request and my decision is to continue.
[40]
Although
the applicants argue that the Minister’s delegate did not allow them to make
their submissions, I find no evidence of this in the minutes. While the
Minister’s delegate dealt with the request swiftly and with a negative result
for the applicants, there is no indication that she prevented them from making
any important submission in favour of the adjournment.
[41]
Indeed,
in my view, the Minister’s delegate handled the request correctly. The process
is administrative in nature, with no requirement for the hallmarks of a
quasi-judicial procedure. It was entirely appropriate for the Minister’s delegate
to consider that the entire submission and especially the last submission, to
be more adequately and appropriately handled in a request under section 48 of
the Act. As well, it would seem to me that the officer was presented with a
summary of the binder materials.
[42]
In
my view, the applicants were afforded a fair procedure. The application for
judicial review is therefore dismissed.
[43]
The
applicants’ proposed the following serious question of general importance for
my consideration for certification:
Is section 44(2) of the IRPA ultra
vires insofar as it provides that a foreign national who has been admitted
to Canada as a temporary resident can be removed from Canada, not by a decision
of the Immigration Division, but by a decision of an immigration officer alone?
I am not prepared to certify this question
as the issue raised by this question has already been determined by the Courts.
JUDGMENT
[44]
IT
IS ORDERED that:
1. The application for
judicial review is dismissed.
2. No question will be
certified.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
|
22.(1) A foreign national becomes a
temporary resident if an officer is satisfied that the foreign national has
applied for that status, has met the obligations set out in paragraph
20(1)(b) and is not inadmissible.
(2) An
intention by a foreign national to become a permanent resident does not
preclude them from becoming a temporary resident if the officer is satisfied
that they will leave Canada by the end of the period authorized
for their stay.
29.(1) A
temporary resident is, subject to the other provisions of this Act,
authorized to enter and remain in Canada on a temporary basis as a visitor or
as a holder of a temporary resident permit.
(2) A
temporary resident must comply with any conditions imposed under the
regulations and with any requirements under this Act, must leave Canada by
the end of the period authorized for their stay and may re-enter Canada only
if their authorization provides for re-entry.
41. A person is inadmissible for failing
to comply with this Act
(a) in the
case of a foreign national, through an act or omission which contravenes,
directly or indirectly, a provision of this Act; and
(b) in the
case of a permanent resident, through failing to comply with subsection 27(2)
or section 28.
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.
(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.
|
22.(1)
Devient résident temporaire l’étranger dont l’agent constate qu’il a demandé
ce statut, s’est déchargé des obligations prévues à l’alinéa 20(1)b) et n’est
pas interdit de territoire.
(2)
L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de
devenir résident temporaire sur preuve qu’il aura quitté le Canada à la fin
de la période de séjour autorisée.
29.(1) Le résident temporaire
a, sous réserve des autres dispositions de la présente loi, l’autorisation
d’entrer au Canada et d’y séjourner à titre temporaire comme visiteur ou
titulaire d’un permis de séjour temporaire.
(2)
Le résident temporaire est assujetti aux conditions imposées par les
règlements et doit se conformer à la présente loi et avoir quitté le pays à
la fin de la période de séjour autorisée. Il ne peut y rentrer que si l’autorisation le prévoit.
41.
S’agissant de l’étranger, emportent interdiction de territoire pour
manquement à la présente loi tout fait — acte ou omission — commis
directement ou indirectement en contravention avec la présente loi et, s’agissant
du résident permanent, le manquement à l’obligation de résidence et aux
conditions imposées.
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)
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.
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
|
228.(1) For the purposes of subsection 44(2)
of the Act, and subject to subsections (3) and (4), if a report in respect of
a foreign national does not include any grounds of inadmissibility other than
those set out in the following circumstances, the report shall not be
referred to the Immigration Division and any removal order made shall be
. . .
(c) if the
foreign national is inadmissible under section 41 of the Act on grounds of
(i) failing to
appear for further examination or an admissibility hearing under Part 1 of
the Act, an exclusion order,
(ii) failing
to obtain the authorization of an officer required by subsection 52(1) of the
Act, a deportation order,
(iii) failing
to establish that they hold the visa or other document as required under
section 20 of the Act, an exclusion order,
(iv) failing
to leave Canada by the end of the period authorized
for their stay as required by subsection 29(2) of the Act, an exclusion
order, or
(v) failing to
comply with subsection 29(2) of the Act to comply with any condition set out
in section 184, an exclusion order; and
(d) if the
foreign national is inadmissible under section 42 of the Act on grounds of an
inadmissible family member, the same removal order as was made in respect of
the inadmissible family member.
|
228.(1)
Pour l’application du paragraphe 44(2) de la Loi, mais sous réserve des
paragraphes (3) et (4), dans le cas où elle ne comporte pas de motif
d’interdiction de territoire autre que ceux prévus dans l’une des
circonstances ci-après, l’affaire n’est pas déférée à la Section de l’immigration
et la mesure de renvoi à prendre est celle indiquée en regard du motif en
cause :
. . .
c)
en cas d’interdiction de territoire de l’étranger au titre de l’article 41 de
la Loi pour manquement à :
(i)
l’obligation prévue à la partie 1 de la Loi de se présenter au contrôle
complémentaire ou à l’enquête, l’exclusion,
(ii)
l’obligation d’obtenir l’autorisation de l’agent aux termes du paragraphe
52(1) de la Loi, l’expulsion,
(iii)
l’obligation prévue à l’article 20 de la Loi de prouver qu’il détient les
visa et autres documents réglementaires, l’exclusion,
(iv)
l’obligation prévue au paragraphe 29(2) de la Loi de quitter le Canada à la
fin de la période de séjour autorisée, l’exclusion,
(v)
l’obligation prévue au paragraphe 29(2) de la Loi de se conformer aux
conditions imposées à l’article 184, l’exclusion;
d)
en cas d’interdiction de territoire de l’étranger pour inadmissibilité
familiale aux termes de l’article 42 de la Loi, la même mesure de renvoi que
celle prise à l’égard du membre de la famille interdit de territoire.
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