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Federal Court
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Cour fédérale
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Date: 20091023
Docket: IMM-448-09
IMM-449-09
IMM-450-09
Citation: 2009 FC 1078
Ottawa, Ontario, October 23, 2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
CHI
TON TRAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) in Court file
IMM-448-09 is in respect of a decision made by the Immigration Division (ID) of
the Immigration and Refugee Board (the Board), dated January 20, 2009, ordering
the deportation of the applicant.
[2]
The
matter of the deportation decision was heard in conjunction with two other related
applications for judicial review which refer to the October 30, 2008, decision
under subsection 44(1) of IRPA to prepare an admissibility report (file
IMM-450-09); and the November 12, 2008, decision under subsection 44(2) of IRPA
to refer the report to the Board for an admissibility hearing (file
IMM-449-09). As each of these decisions are connected, these reasons for
judgment and judgment will apply to each of the three judicial reviews.
[3]
For
the reasons that follow, the three applications are dismissed.
Background
[4]
Mr.
Tran, the applicant, is a permanent resident of Canada. He entered
Canada in 1994 at
the age of 15 years. He is presently engaged in a common-law marriage to a
Canadian and is the father of her two young children.
[5]
On
March 20, 2008, the applicant was convicted of trafficking in cocaine and
possessing cocaine for the purpose of trafficking contrary to the Controlled
Drugs and Substances Act and possessing proceeds of crime contrary to the Criminal
Code of Canada. He was sentenced to 4 years imprisonment. Mr. Tran had
prior convictions in 2002 and 2003. His application for Canadian citizenship
was denied in 2007 because of his prior criminal record.
[6]
On
May 14, 2008, a Canada Border Services Agency (CBSA) officer sent the applicant
a letter informing him about the admissibility hearing process and giving him
four weeks, until June 11, 2008, to provide written reasons why a removal order
should not be sought. An extension of time was requested and granted. On
September 27, 2008 CBSA received a letter and supporting documents from Mr.
Tran’s counsel, dated September 17, 2008, which the officer reviewed. On
October 30, 2008, having confirmed the March 20, 2008 convictions, the officer
drafted a report pursuant to subsection 44(1)
of the Act. She then contacted counsel and arranged for a telephone interview
with the applicant, his parole officer and counsel. The interview took place on
November 6, 2008.
[7]
The
officer’s interview notes are attached to her affidavit filed in this matter.
Her uncontradicted affidavit evidence is that the decision to refer the subsection
44(1) report was not made until after the November 6, 2008 teleconference. This
was not disputed at the hearing. No request for the officer’s notes was made
following the teleconference.
[8]
After
reviewing the file and completing her interview notes and recommendations, the
CBSA officer then prepared a narrative report entitled “Subsection 44(1) and
55 Highlights – Inland Cases”. In her narrative, the officer recommended
that the applicant be referred to an admissibility hearing. This document was
then transmitted to the Minister.
[9]
On
November 12, 2008, and pursuant to subsection 44(2) of IRPA, the Minister’s
Delegate referred the officer’s 44(1) report to the Immigration Division (ID) for
an admissibility hearing. The delegate’s affidavit evidence is that prior to
making that decision she reviewed the entire file including, but not limited to,
the applicant’s September 17, 2008 submissions and the CBSA officer’s interview
notes and narrative report. The delegate states that she adopted as her own the
reasons set out in the CBSA officer’s narrative report.
[10]
On
January 20, 2009, the admissibility hearing was held by video-teleconference.
The applicant was represented by counsel. He presented no evidence and made no
submissions. On the basis of the information before him respecting the
applicant’s status in Canada and criminal convictions, the Member concluded
that Mr. Tran is inadmissible pursuant to paragraph 36(1)(a) of IRPA. A Deportation
Order was made the same day.
[11]
The
applicant filed the three leave applications on February 2, 2009, each stating
that he had not received written reasons for the decisions. By letters to the
Court Registry dated February 19, 2009 the CBSA responded to requests pursuant
to Rule 9 of the Federal Courts Immigration and Refugee Protection Rules
with written reasons including the CBSA officer’s narrative or “Highlights
Report”.
Issues
[12]
At
the hearing of these judicial review applications, the applicant conceded that,
on the evidence, the ID Member made no error and could not have arrived at a
different finding. Similarly, he did not press arguments made in his
Memorandum of Fact and Law that the CBSA officer did not consider his September
17, 2008 submissions or did not adequately weigh those submissions. The sole
remaining issue is whether the applicant was denied procedural fairness in the
process leading up to the ID hearing.
[13]
If
the applicant was denied fairness at any stage of the proceedings, no deference
is required and the matter should be remitted for the correct actions to be
taken.
Analysis
[14]
The
applicant’s procedural fairness argument, essentially, is that he did not
receive the “Highlights Report” and the interview notes until after these
applications for judicial review had been filed and the CBSA responded to the
Rule 9 requests. He submits that had he received the report prior to the
decision to refer the matter for an inadmissibility hearing he could have made
submissions on that material and could possibly have persuaded the delegate not
to make the referral. He contends that the jurisdiction of the ID to conduct
the inadmissibility hearing was vitiated by the breach of procedural fairness.
[15]
The
applicant concedes that he did not request the materials prior to the referral
decision and the admissibility hearing. The applicant relies on the decision
of Mr. Justice Hughes in Hernandez v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 725, [2007] F.C.J. No. 965, at paras. 40-41, for
the proposition that once documents such as the Highlights Report and the
interview notes have been prepared they must be disclosed to the subject of a
s.44 (1) report prior to consideration of referral to an admissibility hearing.
He argues that Hernandez does not require a specific request by counsel
to trigger disclosure of the documents, although one was made in that case
prior to the admissibility hearing.
[16]
As
has been previously held by this Court, “the duty of fairness owed for the
proceedings under section 44 of IRPA is relaxed and consists of the right to
make submissions and to obtain a copy of the report.”: Richter v. Canada
(Minister of Citizenship and Immigration), 2008 FC 806, [2008] F.C.J. No.
1033, at para. 18, aff’d 2009 FCA 73, [2009] F.C.J. No. 309. The reference in Richter
to “the report” was to the document referenced in subsection 44(1) which sets
out the relevant facts and is to be transmitted to the Minister by an officer
who has formed the opinion that a foreign national is inadmissible. There is no
issue in these proceedings that the report was not delivered to the applicant.
[17]
In
Hernandez, as stated at paragraph 40 of Justice Hughes’ decision, the
officer had prepared and delivered to the Minister not only the “report” but
also a detailed recommendation with many appendices. Justice Hughes observed
that this was not required by the statute and that no breach of fairness would
have occurred if these additional documents had not been prepared. He
considered, however, that they had become part of the report. Once created and
delivered to the Minister, he concluded at paragraph 41, they must be provided
to the applicant prior to the admissibility hearing “[p]articularly this is
so when a specific request has been made.”
[18]
Hernandez was
distinguished by Mr. Justice Zinn in Chand v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 548, [2008]
F.C.J. No. 876, at para. 24. He considered that the documents referenced in
the Highlights Report were all documents that the Minister could reasonably
expect the applicant to have. These documents included the Crown disclosure at
the criminal trial, the criminal charge, the judge's reasons for sentence,
pre-sentence report, etc. It was argued that failure to disclose this
information prior to the subsection 44(2) review constituted an error. Justice
Zinn concluded that this was simply an administrative process and did not
amount to a breach of procedural fairness.
[19]
Similarly,
in this case, the information transmitted to the Minister was all information
that the applicant already had or knew about. As the respondent notes, all of
the documents referred to by the applicant at paragraphs 13-19 of his affidavit
came from the applicant before the highlights report was made and were duly
considered by the officer.
[20]
The
applicant submits that the officer’s notes of the telephone interview conducted
on November 6, 2008 with the applicant and his counsel should have been
disclosed. These notes are, in effect, the officer’s reasons for making the
report and recommending referral.
[21]
There was
no clear and specific request for delivery of such material made by the
applicant before either the referral decision or the admissibility hearing. No
request was made by the applicant for an explanation of the 44(1) and 44(2)
decisions.
In my view, the
applicant can not be heard now to complain about the failure to disclose the
officer’s notes or to provide such an explanation when he did not request that
they be produced.
[22]
In Liang
v.Canada (Minister of Citizenship and Immigration), (1999), 91
A.C.W.S. (3d) 141, [1999] F.C.J. No.1301, Evans J., as he then was,
noted at paragraph 31 that the duty of fairness normally only requires reasons
to be given on the request of the person to whom the duty is owed and, in the
absence of such a request, there will be no breach of the duty if reasons are
not provided. This
view of the duty was endorsed
by the Federal Court of Appeal in Marine Atlantic Inc. v, Canadian Merchant
Service Guild, (2000), 258 N.R. 112 (C.A.), [2000] F.C.J. No. 1217 and has
been applied in other decisions of this Court:; Za’rour v. Canada (Minister
of Citizenship and Immigration), 2007 FC 1281, [2007] F.C.J. No.1647; Gaoat
v. Canada (Minister of Citizenship and Immigration), 2007 FC 440, [2007]
F.C.J. No. 629.
[23]
As noted
by Mr. Justice Pinard in Gaoat, above at paragraphs 10-11, the rule in Marine
Atlantic applies where the reasons given may be insufficient. The applicant
is required to request further reasons before he can complain in Court that
they are inadequate: see also Hayama v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1305, [2003] F.C.J. No. 1642.
[24]
As
I observed in Richter, above at paragraphs 12-15, it is not necessary
for a CBSA officer preparing a report under subsection 44(1) to consider humanitarian
and compassionate factors. In doing so in this case, the officer went beyond
the scope of her duty. But the practical effect was that those factors, as set
out in the applicant’s September 17, 2008 package, were included in the
officer’s narrative report and were before the Minister’s delegate for her
consideration in deciding whether to refer the case for an admissibility
hearing. The applicant suffered no unfairness as a result.
[25]
The
respondent argues that the applicant must be taken to have implicitly waived
his right to complain that the highlights report and interview notes were not
disclosed because neither he nor his counsel made any objections or submissions
at the January 20, 2009 admissibility hearing: Yassine v. Canada (Minister
of Citizenship and Immigration) (F.C.A.), (1994), 172 N.R. 308, [1994]
F.C.J. No. 949 at para. 7. As I have not found that there was a breach of
procedural fairness in this case, I do not consider it necessary to deal with
that argument.
[26]
I
conclude that the process was conducted with procedural fairness, that each
decision was reasonable and that the result at each stage falls within the
range of acceptable outcomes. There is no reason to interfere with any of the
three decisions which are before the Court on these applications for judicial
review.
[27]
The
applicant has proposed that I consider certifying as a question of general
importance whether documents once created as part of a subsection 44(1) report
should be disclosed prior to the subsection 44(2) referral decision. The
respondent submits that the law in this area is no longer unsettled as a result
of Richter, above. I agree but am also of the view that a broadly
worded question, as proposed, would not be determinative of the result in this
case given the applicant’s failure to request reasons or an explanation of the
officer’s decision.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the applications for judicial review in Court files IMM-448-09,
IMM-449-09 and IMM-450-09 are dismissed. A copy of this judgment shall
be placed on each file. There are no questions to certify.
“Richard G. Mosley”
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