Docket: IMM-1937-15
Citation:
2015 FC 1198
Vancouver, British Columbia, October 23, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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CAROLINA DEL VALLE PARAMO DE GUTIERREZ
IVAN JESUS GUTIERREZ DOMINGUEZ
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Respondents
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JUDGMENT AND REASONS
[1]
This application for judicial review raises two
issues important to the Canadian refugee determination process:
(1) May an officer require a refugee claimant to attend for questioning
at any time prior to the determination of the claim by the Refugee Protection
Division [RPD], and
(2) If the refugee claimant indicates on the Basis of Claim form that
he or she has counsel, is it a denial of procedural fairness and natural
justice for an officer to question the claimant without notifying counsel and
providing counsel an opportunity to attend?
Background
[2]
On January 4, 2014, the Respondents, a married
couple, arrived in Canada at Pearson International Airport from Venezuela on
student visas valid to December 31, 2014. On April 28, 2014, the Respondents
advised Citizenship and Immigration Canada [CIC] that they wished to make
refugee claims. CIC made an appointment with the Respondents to appear for an
interview for that purpose on May 6, 2014. The CIC officer who took their
applications for protection determined that they were eligible to make a claim
for inland refugee status and transmitted their applications to the RPD where
they were marked as received on May 9, 2014. A hearing before the RPD was scheduled
for July 10, 2014.
[3]
On June 26, 2014, Karl Chan, a Hearing Advisor
employed by the Canada Border Services Agency [CBSA] at the Pacific Region Inland
Enforcement Section of the Enforcement and Intelligence Division, called the
Respondents and asked them to attend at an interview that day [the June 26th
Interview]. Mr. Chan conducted this interview at the request of Garett
Toporowski, Minister’s Representative, Inland Enforcement Section, Enforcement
Intelligence Division, Pacific Region, Canada Border Services Agency. Both
gentlemen worked within areas falling under the jurisdiction of the Minister of
Public Safety and Emergency Preparedness – not the Minister of Citizenship and
Immigration.
[4]
After receiving the call, the Respondents
attempted to contact the interpreter through whom they communicate with their
lawyer, but were unable to do so. They attended the interview without their
lawyer. They did not advise Mr. Chan that they wished to have their lawyer
present and he did not ask them if they wished to have their lawyer present.
Mr. Chan did not advise the Respondents’ lawyer of the interview, although it
is clear from the record that he was well aware that they had counsel.
[5]
Mr. Chan questioned the Respondents on
statements they made in their Basis of Claim forms regarding the factual basis
on which they were seeking protection in Canada.
[6]
On June 30, 2014, Mr. Toporowski filed a Notice
of Intention to Intervene in the Respondents’ refugee claims hearing on behalf
of the Minister of Public Safety and Emergency Preparedness. It was indicated
that the intervention would be by filing documents only. In addition to two
documents from third party sources, the documents filed were (i) the solemn
declaration of Karl Chan setting out the questions asked and answers provided
at the June 26th Interview, and (ii) a second solemn declaration of
Karl Chan relating information he was given by the Spanish translator at the
June 26th Interview regarding five email messages he had been shown
by the Respondents, together with information he later obtained when following
up on this.
[7]
At the hearing on July 10, 2014, counsel for the
Respondents applied to exclude from evidence the documents pertaining to the
June 26th Interview. First, counsel submitted that Karl Chan lacked
jurisdiction to conduct the interview. Second, counsel submitted that because Karl
Chan had failed to notify her about the interview, admitting evidence obtained
during the interview would breach the Respondents’ right to counsel and,
therefore, their right to procedural fairness.
[8]
The presiding RPD member decided to adjourn the
hearing in order to allow the Crown to make submissions on the issues
Respondents’ counsel had raised. Written submissions on the procedural
challenges were provided by the Respondents and the Crown. On October 15,
2014, when the hearing resumed, the RPD dismissed the Respondents’ application
to exclude the documents pertaining to the June 26th Interview, with
reasons to follow as part of his final decision. The hearing then proceeded on
the merits.
[9]
On October 31, 2014, the RPD issued its
decision. The Panel found that Karl Chan had jurisdiction to conduct the June
26th Interview, and further found that Sections 15 and 16 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] gave Karl Chan, a CBSA
Officer, jurisdiction to examine a refugee claimant at any time until their
claim for protection has been determined by the RPD. The Panel further held
that “there was no obligation for the CBSA Officer to
notify counsel that the interview was scheduled to occur, or to formally
provide the claimants with their right to counsel.”
[10]
The RPD rejected the Respondents’ refugee claims.
The primary basis for the decision on the merits was credibility. In this
respect the Panel noted: “The most significant concern
with the claimants’ evidence on this issue was a contradiction between Ms.
Paramo de Gutierrez’s testimony and the answers the claimants provided during
their interview with Officer Chan [i.e. the June 26th Interview].”
[11]
The Respondents appealed the RPD’s decision to
the Refugee Appeal Division [RAD]. The Respondents submitted that the RPD
violated their rights to procedural fairness by admitting documents pertaining
to the June 26th Interview which, they alleged, was unfairly and
improperly conducted without notice to their counsel of record, and that, in
any event, their rights to procedural fairness were breached because the
officer had no jurisdiction to conduct that interview in the first place.
[12]
The RAD granted the Respondents’ appeal on the
basis that the RPD ought to have excluded the June 26th Interview
evidence because the officer had obtained that evidence in breach of the
Respondents’ rights to counsel.
The Appellants had Counsel of Record from
the time that the claims were submitted so any and all communications related
to the claims, including to attend an interview at the CBSA, should have
included the Appellants’ counsel. It is well-established in law and reflected
throughout the immigration-related rules, that when an individual has elected
to have representation in a proceeding at the IRB and has provided contact
information for that representative, all subsequent communications must be
through and include that representative unless there are indications that the
representation is for limited purposes, which was not the case in this claim.
The requirement to communicate with Counsel was tacitly conceded by the
Minister in his response to initial objection by the Appellant’s Counsel by
indicating that there was a general ‘courtesy’ of notifying counsel about CBSA
interviews and that this courtesy would be extended in any similar future
event. The Minister’s representative attempted to distinguish between courtesy
and legal requirements but that position is inconsistent with the legal
principles regarding the nature of representation, which is that the
representative stands in the place of the person being represented.
[13]
Given its conclusion on the right to counsel,
the RAD did not find it necessary to consider whether the officer had the jurisdiction
to question the Respondents when he did, although it made some comments in obiter
on that issue.
[14]
The RAD set aside the RPD’s decision and
remitted the matter back to the RPD for re-determination by a different member
of the Board. It further ordered that the documents pertaining to the June 26th
Interview be excluded from evidence on the re-determination.
[15]
Both parties agreed that the affidavit evidence
filed on this application containing information not before the RAD, was not
admissible. It has not been considered by the Court in rendering this
decision.
Issues
[16]
The decision under review was made on the right
to counsel issue; however, the Applicant has also raised as an issue whether
the RAD erred in refusing to decide whether the officer had authority to
interview the Respondents after the eligibility decision had been made. At the
hearing of this application, counsel for the Applicant did not reject (and in
fact, accepted) the Court’s suggestion that it might be appropriate to also
deal with the merits of the jurisdiction issue. There is a practicality in so
doing. If this review application is allowed and the RAD decision on right to
counsel overturned, then it is likely that the Respondents will then ask the
RAD to make a decision on the jurisdiction issue, which may then find its way
to this Court. If this review is denied, the importance of the issue is such
that an appeal to the Federal Court of Appeal is likely, and there the
jurisdiction issue will most likely be raised.
[17]
In any event, the Court has had the benefit of
full submissions on the jurisdiction issue and comity suggests that the RPD
decision on jurisdiction will be followed by other Panels in future cases and
this is very likely to lead again to future appeals to the RAD. It is also of
some note that there may be others affected by the jurisdiction question and
who will not have a right to appeal to the RAD. For all of these reasons,
although the decision under review did not decide the jurisdiction question, I
have concluded that it is important and necessary that the Court address it.
[18]
In her written and oral submissions, counsel for
the Respondents noted that “the facts do not support
any suggestion that the Minister had any security or criminality concerns.”
I accept that observation as accurate. Indeed, the line of questioning by Karl
Chan during the June 26th interview appeared to be directed to the facts
alleged by the Respondents as the basis of their claims for protection. This
raises a question of why it was that CBSA officers and not CIC officers were
doing the questioning in the first place.
[19]
It is the Court’s understanding, based on the
roles of these two Ministers as set out in section 4 of the Act, that CIC
intervenes in cases involving credibility or program integrity issues, while
CBSA is responsible for cases involving criminality or security issues. Accordingly,
one might ask whether these CBSA officers had any jurisdiction or authority to
engage in the questioning or intervene at the RPD given the absence of any
criminality or security concerns. That question shall remain unanswered as it
was not addressed by either party here or by either of the tribunals below.
The following analysis shall be based on the assumption that these officers did
have departmental authority to engage in the activities they undertook.
[20]
The issues to be addressed are the following:
1.
What is the applicable standard of review;
2.
What are the temporal limits, if any, on an
officer to question an in-land refugee claimant; and
3.
Where the claimant has counsel of record, is it
a breach of procedural fairness and natural justice to conduct an interview of
the claimant without prior notification to counsel, and if so, should evidence
obtained from the interview be excluded from the refugee determination hearing?
Standard of Review
[21]
The Applicant, citing Mission Institution v
Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para 79, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para
43, submits that the RAD’s decision to exclude the evidence of the June 26th
Interview is subject to the correctness standard of review as the decision was
based upon the principles of fairness and natural justice. I agree.
[22]
The Applicant also submits that review of the
interpretation given by the RPD or RAD to the Act and its Regulations, being a
question of law not of general importance to the legal system as a whole, and
not being outside the expertise of either tribunal, is to be reviewed on the
reasonableness standard: Singh v Canada (Minister of Citizenship and
Immigration), 2014 FC 1022, at para 42. I do not necessarily agree that
the interpretation of the legislative provisions, dealing with the jurisdiction
of an officer to interview a refugee claimant, are not questions of law of
general importance; however, it is irrelevant which standard applies because I
have determined that there is only one reasonable interpretation of the
relevant legislative provisions, and it is not that found by the RPD.
The Scheme of the Act
[23]
Subsection 99(3) of the Act provides that “a claim for refugee protection made by a person inside
Canada must be made to an officer.” It also provides that the claimant
must be eligible to make the in-land refugee claim.
[24]
Broadly speaking, the Act provides that a person
is ineligible to make an in-land claim if he has been recognized as a
Convention refugee by another country to which he can return, he has already
been granted protected person status in Canada, the Canada-U.S. Safe Third
Country Agreement is engaged, he is inadmissible on security grounds, or
because of criminal activity or human rights violations, or he has made a
previous claim for protection and was found to be ineligible for referral to
the RPD or had the claim rejected by the RPD, or abandoned or withdrew a previous
refugee claim.
[25]
Pursuant to subsection 100(1) of the Act, an
officer to whom a claim for refugee protection is made has three working days
to determine whether the claim is eligible to be referred to the RPD, and if it
is eligible, shall refer the claim. An officer may suspend consideration of
eligibility if a report has been referred to a hearing on whether the person is
inadmissible on grounds of security, violating human or international rights,
serious criminality or organized criminality, or if the officer considers it
necessary to await a court decision on serious criminal charges facing the
claimant. If the claim has not been referred within the three day period and
the decision has not been suspended, then the claim is deemed to have been
referred to the RPD.
[26]
Subsection 15(1) of the Act provides that “an officer is authorized to proceed with an examination if
a person makes an application to the officer in accordance with this Act”
[emphasis added]. Paragraph 28(d) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations], specifies that a claim for
refugee protection made to an officer is an application falling within this
provision; the others are applications to enter Canada or permission to transit
through Canada. Subsection 100(1.1) of the Act provides that a claimant has
the burden of proving that the claim is eligible for referral to the RPD.
[27]
Subsection 16(1) of the Act provides that a
person “who makes an application must answer truthfully
all questions put to them for the purpose of the examination and must produce a
visa and all relevant evidence and documents that the officer reasonably
requires.”
[28]
The Act was amended on June 11, 2013, by adding
subsection 16(1.1) to the Act. It provides: “A person
who makes an application must, on request of an officer, appear for an
examination.” CIC Operational Bulletin 531 dated June 21, 2013,
provides the background to this amendment: “Prior to
the coming into force of the [Faster Removal of Foreign Criminals Act,
SC 2013, c 16], a person who made an application under the IRPA was subject to
an examination by an officer and was obliged to answer truthfully all questions
put to them for the purposes of the examination [subsection 16(1) of the
IRPA]. There was no express statutory requirement, however, for a person to
appear for an examination when asked to do so.”
Jurisdiction Issue
[29]
The jurisdiction issue is this: Does an officer
have jurisdiction to interview a refugee claimant after the eligibility
decision has been made?
[30]
The Applicant took the position below and here
that officers have jurisdiction pursuant to subsections 15(1) and 16(1.1) of
the Act to require a claimant to attend for an interview at any time up until
the RPD has rendered a decision on the claim.
[31]
The RPD accepted the Applicant’s submission that
restricting the right of an officer to examine a claimant to the period prior
to the eligibility determination would be inconsistent with the objectives set
out in paragraphs 3(2)(g) and (h) of the Act; namely, “to
protect the health and safety of Canadians and to maintain the security of
Canadian society” and “to promote international
justice and security by denying access to Canadian territory to persons,
including refugee claimants, who are security risks or serious criminals.”
[32]
The RPD was clearly considering the
jurisdictional issue in a much broader context than the application before it.
This is evident from the fact that neither of the objectives in paragraphs
3(2)(g) or (h) were engaged in the Respondents’ applications for protection and
not a single question was asked of them by Karl Chan that went to either
objective. The RPD further notes “the absence of any
specific statutory provision outlining when the examination of a person making
a refugee claim ends” and says that it will give a “plain reading” to paragraph 28(d) of the Regulations,
which is that a person is no longer under examination when he or she is no
longer making a refugee claim, that is, when the claim is decided by the RPD.
[33]
In my opinion, this is an unreasonable and
frankly incorrect interpretation of the relevant statutory provisions. The
Member has ignored or read out a relevant part of subsection 15(1), which gives
an officer jurisdiction to conduct an examination “if a
person makes an application to the officer in accordance with this Act”
[emphasis added]. The Member correctly found that “the
Minister’s jurisdiction to determine a refugee claim ends upon a determination
of whether the claimant is eligible to appear before the Division for a
hearing.” On a purposive interpretation of subsection 15(1), according
to which the scope of the legislative tools conferred by the Act is to be
determined by reference to their ultimate function, an officer’s jurisdiction
to examine an individual ends once the claim has been referred to the RPD.
[34]
The RPD and the Applicant suggest that an
officer’s jurisdiction to examine a person continues as long as that person is
making a refugee claim. However, the fact that a person is making a refugee
claim is not what gives rise to the right to examine. What gives rise to that
right is the fact that a person has made “an
application to the officer” under subsection 15(1) of the Act, and
is then required, pursuant to subsection 16(1.1), to “appear
for an examination” [emphasis added]. Once an officer has
finished examining a person and has determined that person to be eligible, the
officer has fulfilled his or her statutory obligations. The person’s
application is no longer before the officer and therefore, in my view, the
officer has no continuing jurisdiction to require that person to attend for
other and additional examinations.
[35]
This purposive interpretation is also consistent
with the claimant’s obligation in subsection 16(1) of the Act to “answer truthfully all questions put to them for the
purpose of the examination” [emphasis added]. The purpose of the
examination that an officer has jurisdiction to require is to determine
eligibility.
[36]
The Member expressed concern that the security
objectives of the Act will be undermined if an officer is unable to question
claimants after he or she determines their eligibility. This concern is
addressed in subsection 16(2.1) of the Act, which provides for a separate
interview to investigate security concerns. Unlike subsection 15(1), an
officer’s jurisdiction to conduct an interview pursuant to subsection 16(2.1)
is not restricted to situations where a person makes an application “to the officer.” Instead, it is engaged when a
foreign national “makes an application.” It
provides that a “foreign national who makes an
application must, on request of an officer, appear for an interview for the
purpose of an investigation conducted by the Canadian Security Intelligence
Service under section 15 of the Canadian Security Intelligence Service Act,
RSC, 1985, c C-23 for the purpose of providing advice or information to the
Minister under section 14 of that Act and must answer truthfully all questions
put to them during the interview.”
[37]
For these reasons, I conclude that the officer
here had no jurisdiction to examine the Respondents after May 9, 2014, when
their claims for protection were determined eligible and were forwarded to the
RPD for determination.
Right to Counsel Issue
[38]
The Applicant submits that no statute confers a
right to counsel during an examination conducted pursuant to subsection 15(1)
of the Act. While subsection 167(1) confers a right to counsel, this right is
limited to proceedings before the RPD. That subsection provides: “A person who is the subject of proceedings before any
Division of the Board and the Minister may, at their own expense, be
represented by legal or other counsel.”
[39]
Given that my interpretation of subsection 15(1)
entails that an officer’s right to examine a claimant ends when eligibility is
determined and it is only then that there is a proceeding before the RPD, I
agree with the Applicant that the Act does not set out any right to be
represented by counsel during an eligibility examination. But that doesn’t
address the concerns here.
[40]
Here the Respondents had counsel of record and
it was so indicated on their Basis of Claim forms. And here the interview
conducted was not for the purpose of determining eligibility, but rather to assess
the validity of the Respondents’ claims.
[41]
The Respondents submit that since the purpose of
the June 26th Interview was to gather information for use as part of
the Applicants’ intervention in that hearing, the right to counsel under
subsection 167(1) of the Act was engaged.
[42]
The Applicant’s position that subsection 167(1)
of the Act only confers a right to counsel at a Board hearing is too narrow an interpretation
of the Act. The subsection confers a right to counsel on anyone who is “the subject of proceedings before…the Board.” This
phrase is broad enough to encompass persons who are required to attend pre-hearing
interviews that are conducted for the purpose of gathering evidence for a
hearing. It would severely impinge on the effectiveness of a refugee
claimant’s right to counsel if that right only allowed counsel to make
submissions at a hearing itself, and provided him or her with no opportunity to
participate in the fact-finding process upon which the hearing is based.
Nothing in the Act compels such a narrow interpretation.
[43]
I do not agree with the Applicant that the
answer to this question is informed by the decision of the Supreme Court of
Canada in Dehghani v Canada (Minister of Employment and Immigration),
[1993] 1 S.C.R. 1053 [Dehghani]. In that case, the Court held at page 1077
that “in an immigration examination for routine
information-gathering purposes, the right to counsel does not extend beyond
those circumstances of arrest or detention described in s. 10(b)” of the
Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
The Applicant submits that because the Respondents were not detained within the
meaning of section 10(b) of the Charter when they attended the June 26th
Interview, their right to counsel was not engaged.
[44]
Dehghani involved
an examination that was conducted at a port of entry for the purpose of
processing an application for entry and determining the appropriate procedures
that should be invoked in order to deal with an application for Convention
refugee status. In other words, it was the sort of routine information
gathering exercise that both parties agree does not give rise to a right to counsel.
That is not this case.
[45]
In this case, the information gathering stage
was over. The officer had already determined the correct procedure and
referred the Respondents’ claims to the RPD for determination. At that point,
the Respondents had a statutory right to retain counsel to represent them in
respect of their hearing. They took advantage of that right. The right to
retain counsel must include the right to have that counsel present during any
material aspect of the proceeding and that must include any part of the
proceeding that involves the gathering of information from the claimants for
the purposes of the proceeding. Accordingly, the right was breached by the
officer when he directed the Respondents to attend an interview for the purpose
of gathering evidence for the upcoming hearing, without informing the
Respondents’ counsel. That right was further breached when the RPD failed to
exclude from evidence documents pertaining to the June 26th
Interview.
Certified Questions
[46]
The Applicant proposed two questions for
certification:
1.
Is there an obligation to inform counsel for the
claimant if an examination is conducted prior to the Refugee Protection Division
hearing, even if there is no right to counsel at the examination?
2.
Is there statutory authority for an officer to
conduct an examination of refugee claimants pertaining to the claim, including
the eligibility of the claim to be referred to the Board, prior to a hearing
before the Refugee Protection Division after eligibility has been determined?
[47]
The Respondent opposes certification of any
question submitting that “the facts of the present case
do not lend themselves to serious general questions of importance.”
[48]
In the Court’s view, there are two questions of
general importance that would be determinative of this case and which ought to
be certified. The questions posed by the Applicant, however, are too broad and
are not restricted to the facts before the Court.
[49]
The following questions will be certified:
1.
Does an officer have jurisdiction and authority
to examine a refugee claimant pursuant to subsection 15(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27, after the claim has been referred
to the Refugee Protection Division for determination?
2.
If a refugee claimant has indicated on the Basis
of Claim form or elsewhere that he or she has counsel of record, is it a breach
of procedural fairness for an officer to examine the refugee claimant after the
claim has been referred to the Refugee Protection Division for determination without
advising counsel of record of the proposed examination and providing counsel an
opportunity to attend?
Post Script
[50]
Subsequent to the hearing, the Applicant
informed the Court of a proposed amendment to the Regulations published on June
20, 2015, in the Canada Gazette, Part I, (Vol 149, No 25) for discussion
and consultation, specifically dealing with when an examination of a refugee
claimant ends. It is proposed to add subsection 37(2) to the Regulations which
is proposed to read as follows:
The examination of a person who makes a
claim for refugee protection at a port of entry or inside Canada other than at
a port of entry ends when the later of the following occurs:
(a) a final determination is made in respect
of their claim, and
(b) a decision in respect of the person is
made under subsection 44(2) of the Act, and, in the case of a claim made at a
port of entry, the person leaves the port of entry.
[51]
Should the proposed regulation be promulgated,
and be valid, it may answer the first certified question. However, it does not
address the second certified question. Moreover, there is nothing in the
proposed changes that suggest that the effect of the amendment will be
retroactive.
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