Docket: IMM-4911-15
Citation:
2016 FC 841
Ottawa, Ontario, July 20, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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VAKUROV, SERHII
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Serhii Vakurov, seeks judicial
review of an exclusion order issued by a delegate of the Minister of
Citizenship and Immigration [the Delegate] dated October 2, 2015 [the Exclusion
Order] under section 44(2) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] and section 228(1)(c)(iv) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (see Annex for
referenced legislation).
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant is a citizen of Ukraine. He
entered Canada in 2011 on a student visa and remained in Canada illegally after
its expiry. The Canada Border Services Agency [CBSA] became aware of the
Applicant’s illegal status when an Interpol warrant was issued for his arrest.
A CBSA officer [the Officer] interviewed the Applicant on October 2, 2015
regarding his presence in Canada and the warrant. The Applicant told the
Officer that government officials in Ukraine were falsely accusing him of fraud.
He also stated that he did not want to return to Ukraine and wished to bring
his son to Canada.
[4]
The Applicant also alleges he told the Officer
that people in a position of authority in Ukraine were persecuting him and were
willing to kill him if he returned. He maintains that he asked for the
Officer’s help to bring his children to Canada to avoid their persecution. The
Respondent disputes these allegations.
[5]
Following the interview, the Officer issued a
report under section 44(1) of the Act, recommending the Applicant’s removal
from Canada for failure to comply with section 29(2) of the Act, which required
him to leave Canada at the end of the period authorized for his stay. The
Applicant then sought to speak with counsel and was able to do so. The Delegate
reviewed the report and conducted a further interview, during which the
Applicant informed the Delegate that, on advice of counsel, he would not answer
any questions. The Delegate then went over the report with the Applicant and,
after being satisfied that the Applicant understood its contents, issued the
Exclusion Order.
[6]
As a result of the Exclusion Order, the
Applicant is precluded from making a claim for refugee protection (s 99(3) of
the Act). He maintains that, under the circumstances, the Delegate had a duty
to inform him of the right to make a refugee claim prior to the issuance of the
Exclusion Order.
II.
Standard of Review
[7]
The Applicant submits that the Delegate made a
reviewable error by issuing the Exclusion Order without first giving him an
opportunity to be heard regarding his fear of persecution. He argues that the
Delegate breached the duty of fairness owed to him, specifically that arising
under his legitimate expectations under the circumstances, and that the
decision is therefore reviewable on the standard of correctness (Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, at para
43).
[8]
The Respondent submits that the Exclusion Order
was a discretionary decision, involving the interpretation of a statute within
the decision-maker’s area of expertise and not of central importance to the
legal system. Therefore, the standard of review is reasonableness (Gupta v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1086) [Gupta].
[9]
I find that the issue is one of procedural fairness
reviewable on the standard of correctness (Khosa, supra, at para
43). The Gupta decision
did not deal with a procedural fairness issue, but rather with whether the
delegate should have referred the matter to the Immigration Division. This
involved statutory interpretation by the delegate.
[10]
The issue in the present case is similar to that
considered in Canada (Minister of Citizenship and
Immigration) v Don, 2014 FCA 4 [Don], where
the delegate issued an exclusion order to a foreign national, before he had any
contact with that foreign national, therefore allowing him no opportunity to
make a refugee claim. The Federal Court of Appeal found at paragraph 36 that
the Federal Court judge properly identified the standard of review as
correctness.
III.
Issue
[11]
The sole issue is whether the Delegate breached the duty of fairness.
IV.
Submissions of the Parties
A.
The Applicant’s Position
[12]
The Applicant recognizes that applicable
jurisprudence has established that the decision of the Delegate to issue a
report under section 44(1) of the Act is a purely administrative decision that
attracts minimal procedural fairness. (Cha v Canada (Minister of Citizenship
and Immigration), 2006 FCA 126 [Cha] at para 45). However, his
position is that, even at that low threshold, the Delegate failed to abide by
the duty of fairness owed to the Applicant. In particular, he failed to act in
accordance with the legitimate expectations of the Applicant that the Delegate
would follow the Minister’s own guidelines regarding section 44 reports. He refers
to the decision of the Supreme Court of Canada in Baker v Canada, [1999]
2 SCR 817 as holding that the legitimate expectations doctrine is concerned
with representations and regular practices regarding the procedure to be
followed in a particular circumstance.
[13]
He refers to document ENF 6 – Review of Reports
under A44(1) [the Guidelines] (see the Annex for the relevant provisions) as
providing a set of procedures that a Minister’s delegate should follow when
considering section 44 reports. The Guidelines state that section 99(3) of the
Act excludes persons under a removal order from making a claim for refugee
protection and, therefore, a Minister’s delegate should, inter alia:
A.
Ask the subject how long he or or she intends to
remain in Canada;
B.
If the subject indicates an intention to remain
in Canada indefinitely, the delegate is to inquire about motives for leaving
their country of nationality and the consequences of returning there before
making a decision on issuing a removal order; and
C.
Where the responses indicate a fear of returning
to the country of nationality that may relate to refugee protection, the
Minister’s delegate is to inform the subject of the definition of a “Convention
refugee” or “person in need of protection” under the Act and ask whether he or
she wishes to make a claim.
[14]
The Applicant maintains that he communicated his
intention to remain in Canada indefinitely, and that the Ukrainian government
was falsely accusing him of fraud. He argues that his statements should have
alerted the Delegate to the fact that he held a fear related to refugee
protection and the Delegate should have provided him with an opportunity to
make a refugee claim before proceeding with a removal order.
B.
The Respondent’s Position
[15]
The Respondent’s position is that the Delegate
followed the Guidelines in the case at hand. He advised the Applicant of the
content of the section 44 report and asked the Applicant if there was any
aspect of this information he wished to challenge. However, the Applicant
refused to speak to the Delegate on advice of counsel.
[16]
By way of affidavit, the Delegate attests that
at no time during their conversation did the Applicant ever tell him that he
was at risk in Ukraine or feared persecution. In the Respondent’s view, nothing
on the facts could have alerted the Delegate to a possible refugee claim. The
Respondent also notes that, while the Exclusion Order precludes the Applicant
from making a refugee claim, he is entitled to pursue a Pre-Removal Risk
Assessment [PRRA] application to address his alleged risk of persecution.
Counsel advised the Court at the hearing of this judicial review that the
Applicant has pursued a PRRA, that this was unsuccessful, and that the
Applicant is separately seeking judicial review of that decision.
V.
Analysis
A.
Preliminary Matter – The Officer’s Affidavit
[17]
The Applicant submits that the affidavit sworn
by the Officer should be disregarded as an attempt to supplement the Delegate’s
decision, relying on Barboza v Canada (Minister of Citizenship and
Immigration), 2011 FC 1420 at paragraph 26. I find nothing inappropriate
about the Respondent’s reliance on the Officer’s affidavit. Rather, it is
probative to respond to the Applicant’s allegations as to what he told the
Officer during the events in question. It is trite law that evidence extraneous
to the record before the decision-maker can be tendered to support the
consideration of issues of procedural fairness (Ontario
Assn. of Architects v. Assn. of Architectural Technologists of Ontario, 2002 FCA 218, para 30). The Applicant’s own
affidavit is of that nature, and the Respondent cannot be faulted for
introducing the Officer’s evidence in response.
[18]
I also note that my decision to allow this
application, for the reasons explained below, does not turn on these disputed
statements to the Officer. The Applicant’s position is that his undisputed
statements, as reflected in the memorandum prepared by the Officer as a record
of their interview, are sufficient to support his procedural fairness argument,
and at the hearing of this application, the Applicant placed no reliance on the
alleged statements about fear of being killed in Ukraine. As my decision turns
on the undisputed statements, it is unnecessary for me to reach a conclusion on
the conflicting evidence.
B.
Procedural Fairness Obligations Arising from the
Guidelines
[19]
The Respondent correctly argues that the
Guidelines do not have the force of statutes or regulations. However, this does
not prevent them from giving rise to obligations of procedural fairness. The
doctrine of legitimate expectations, which the Applicant argues is invoked by
the Guidelines and gives rise to procedural fairness obligations in this case,
is explained by the Supreme Court of Canada in Agraira v Canada (Minister of
Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira] at
paragraphs 94 to 95:
[94] The particular face of procedural
fairness at issue in this appeal is the doctrine of legitimate expectations.
This doctrine was given a strong foundation in Canadian administrative law in Baker,
in which it was held to be a factor to be applied in determining what is
required by the common law duty of fairness. If a public authority has made
representations about the procedure it will follow in making a particular
decision, or if it has consistently adhered to certain procedural practices in
the past in making such a decision, the scope of the duty of procedural
fairness owed to the affected person will be broader than it otherwise would
have been. Likewise, if representations with respect to a substantive result
have been made to an individual, the duty owed to him by the public authority
in terms of the procedures it must follow before making a contrary decision
will be more onerous.
[95] The specific conditions which must
be satisfied in order for the doctrine of legitimate expectations to apply are
summarized succinctly in a leading authority entitled Judicial Review of Administrative Action in Canada:
The distinguishing characteristic of a
legitimate expectation is that it arises from some conduct of the
decision-maker, or some other relevant actor. Thus, a legitimate expectation
may result from an official practice or assurance that certain procedures will
be followed as part of the decision-making process, or that a positive decision
can be anticipated. As well, the existence of administrative rules of
procedure, or a procedure on which the agency had voluntarily embarked in a
particular instance, may give rise to a legitimate expectation that such
procedures will be followed. Of course, the practice or conduct said to give
rise to the reasonable expectation must be clear, unambiguous and unqualified.
[Emphasis added.]
(D. J. M. Brown and J. M. Evans, Judicial
Review of Administrative Action in Canada (loose-leaf), at §7:1710; see
also Mount Sinai Hospital Center v. Quebec (Minister of Health and Social
Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 29; Canada
(Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68.)
[20]
The Federal Court of Appeal in Cha, at
paragraphs 49 to 50, relied on what appears to be an earlier version of the
Guidelines in applying the doctrine of legitimate expectations, albeit with a
conclusion that the resulting procedural fairness obligations are at the lower
end of the spectrum:
d) Legitimate expectations of the person
challenging the decision
[49] The Department
Procedures Manual has set out rules that decision-makers are expected to
follow. Chapter ENF 6, at page 10 of the October 31, 2005 version, contemplates
the making of notes and the completion of forms in as much detail as possible;
the need to inform the persons concerned of the nature of the allegations made
against them, to give them a reasonable opportunity to respond and to note and
take into account any representations made; and the conduct of interviews in
the presence of the persons concerned or, in certain circumstances, by
telephone.
[50] A claimant has every
reason to believe that these rules will be followed. These rules, however, are
those found at the lower end on the continuum of procedural protection.
[21]
Similarly, in Don, the Federal Court of
Appeal considered arguments based on the Guidelines and accepted at paragraph
45 that the foreign national in that case was entitled to certain procedural
protections, even though it ultimately found in favour of the Minister. That
case involved issuance of a removal order to a deserter from a ship who had not
yet had any contact with immigration authorities, and the Court of Appeal
concluded that the Guidelines did not provide for a “clear,
unambiguous and unqualified” process (as required by Agraira) to
be followed in circumstances where a person’s contact information was lacking.
Although the foreign national in Don was not able to rely on the
Guidelines for the particular procedural protection he was advocating, I regard
that case to be additional support for the conclusion that the Guidelines do
give rise to some procedural fairness obligations on the part of the Delegate.
[22]
Indeed, I do not understand the Respondent to be
taking issue with that proposition. Rather, the Respondent’s argument is that
the Guidelines were followed in the present case. In considering this argument,
I note first that in oral submissions the Respondent expressed concern, based
on the questions put to the Delegate in cross-examination on his affidavit,
that the Applicant was arguing the Delegate to be subject to an obligation ask
the Applicant whether he wanted to make a refugee claim. To the extent the
Applicant’s position can be interpreted in that manner, I disagree that the
procedural fairness obligations arising from the Guidelines give rise to an
obligation in those terms. As noted in Agraira and Don, only a
clear, unambiguous and unqualified process can give rise to such obligations
under the doctrine of legitimate expectations. In fact, the Guidelines
expressly provide that there is no requirement in the Act for the Minister’s
delegate to ask whether the subject of a determination wishes to make a claim
for refugee protection.
[23]
Rather the Guidelines require a Minister’s delegate
to be aware of Canada’s Convention obligations and to satisfy himself or
herself that removal would not be contrary to the spirit of Canada’s
obligations before issuing an order, even where the subject does not explicitly
request access to the refugee determination process. The Guidelines prescribe a
set of procedures to accomplish these objectives. I consider the portion of the
Guidelines most relevant to the current case to be the following steps:
•
Where the subjects of a determination for an
administrative removal order have not made a claim, the Minister’s delegate
should ask them how long they intend to remain in Canada.
•
If the persons indicate that their intention is
or was to remain in Canada indefinitely, the Minister’s delegate is to inquire
about their motives for leaving their country of nationality and the
consequences of returning there before making a decision on issuing a removal
order.
•
Where the responses indicate a fear of returning
to the country of nationality that may relate to refugee protection, the
Minister’s delegate is to inform the subjects of the definition of a
“Convention refugee” or “person in need of protection” as found in A96 and A97,
and ask whether they wish to make a claim.
[24]
I find these steps to be clear, unambiguous and
unqualified, and my decision to allow this application for judicial review
turns on the fact that the Delegate did not follow these steps in the present
case. The material before the Delegate clearly indicated that the Applicant
wished to remain in Canada and not return to his own country, i.e. to remain in
Canada indefinitely. With the benefit of this information, the Guidelines
provide that the Delegate should have inquired about the Applicant’s motives
for leaving Ukraine and the consequences of returning there.
[25]
The Applicant also relies on the Delegate’s
statement in cross-examination that he was aware of the Applicant’s claim that
the government or someone in Ukraine had lied or falsified information about
his history. One could debate whether this indicates a fear of returning to
Ukraine that may relate to refugee protection, such that it should have
prompted the Delegate to move to the step of providing the relevant definitions
and asking the Applicant if he wished to make a claim. However, the process
never moved to this step, as the Delegate did not perform the previous step of
inquiring about the Applicant’s motives for leaving Ukraine and the consequences
of returning there.
C.
The Applicant’s Refusal to Answer Questions
[26]
The case is complicated by the fact that the
Applicant declined to answer the Delegate’s questions on the advice of his
legal counsel. The Respondent relies on Don, at paragraph 36, where
the Federal Court of Appeal held that the foreign national was not permitted to
recreate, through the doctrine of legitimate expectations, a right that was
available to him but which he chose not to exercise.
[27]
In my view, the present case is distinguishable
from Don, where the foreign national failed to make contact with
immigration authorities, thus preventing the delegate from affording him a
right to be heard. In the case at hand, the Applicant’s invocation of his right
not to answer questions on the advice of counsel did not prevent the Delegate
from following the procedure prescribed by the Guidelines. According to the
affidavit sworn by the Delegate, his interview with the Applicant proceeded as
follows:
A.
The Delegate presented himself to the Applicant,
advised him that he would be acting as Minister’s delegate, and asked if he
understood the proceeding.
B.
The Applicant confirmed that he understood that
a section 44 report had been written against him.
C.
The Delegate asked the Applicant if he had been
given an opportunity to consult with counsel and was satisfied with the advice
he received.
D.
The Applicant confirmed that he had consulted
with counsel and that he was satisfied with the advice.
E.
The Delegate advised the Applicant of the
content of the Section 44 Report and his admission that he knowingly remained
in Canada without authorization after the expiry of his visa and asked if there
was any aspect of the information he wanted to challenge.
F.
The Applicant advised the Delegate that his
lawyer told him not to speak with anyone at CBSA or answer questions.
G.
The Delegate advised the Applicant that, based
on his statement, he wouldn’t be asking any further questions, that he was
satisfied that the allegation was well-founded, and that he would be issuing an
exclusion order valid for one year from removal. He asked the Applicant if he
understood.
H.
The Applicant responded that he didn’t want to
speak to anyone and was advised not to answer questions.
I.
The Delegate then issued the Exclusion Order.
[28]
This sequence demonstrates that the Applicant
was not entirely uncommunicative, and the Delegate was not entirely deprived of
the opportunity to communicate with the Applicant after he first invoked his
right not to answer questions. The Applicant responded to the Delegate’s
inquiries about his understanding of the proceeding, his opportunity to consult
counsel, and his satisfaction with his legal advice. After the Applicant first
stated that he had been advised not to answer questions, the Delegate asked him
if he understood that the Delegate would be issuing an exclusion order valid
for one year from removal.
[29]
More significantly, the Delegate did not embark
on any questioning to satisfy himself that removal would not be contrary to
Canada’s Convention obligations. The Delegate’s questioning focused only on the
basis for the Applicant’s removal, notwithstanding that the Delegate had
information that the Applicant wished to remain in Canada indefinitely. This
should have triggered further inquiries to assess the possibility of a refugee
claim. I cannot conclude that the Applicant would have declined to answer
questions on the consequences of returning to Ukraine, as that line of inquiry
was never commenced by the Delegate.
VI.
Conclusion
[30]
Assessing the applicable procedural fairness
obligations on a standard of correctness, my conclusion is that they were not
met in the present case and that the Exclusion Order must accordingly be set
aside.
[31]
I should note that I have considered the
Respondent’s argument that the fact the Applicant has been in Canada since 2011
without asserting a refugee claim is inconsistent with him having a subjective
fear, as well as the argument that issuance of the Exclusion Order did not
prevent his risk from being assessed through the PRRA process. With respect to
the former point, I note that the Guidelines expressly provide that, if the
inquiries prescribed thereby result in the indication of a fear of returning to
the country of origin, the Delegate is to refrain from evaluating whether the
fear is well-founded and from speculating on eligibility to make a refugee
claim. The intent is clearly that the evaluation of the legitimacy if the claim
is to be assessed by the Refugee Protection Division of the Immigration and
Refugee Board, not by the Delegate. I therefore regard arguments related to the
Applicant’s subjective fear to be irrelevant to the procedural fairness issue
on which this decision turns.
[32]
With respect to the availability of a PRRA, I
agree with the Applicant’s position that, while both assess risk, both the
procedure and substantive considerations applicable to a PRRA determination are
different from those applicable to a claim for refugee protection. Recourse to
the PRRA process is not an answer to the procedural fairness concerns raised in
this application.
VII.
Certified Question
[33]
The Applicant proposed that the Court certify,
as a matter of general importance for appeal, a question to the effect whether
a Minister’s delegate has an obligation to inform a foreign national of the
definition of a “Convention refugee” or “person in need of protection” in the Act and ask
whether he or she wishes to make a claim prior to issuing an exclusion order,
when there is an indication that the foreign national wants to remain in Canada
indefinitely. The Respondent opposes certification of a question for appeal.
[34]
As the Applicant has prevailed in this
application, and as my decision is based on procedural fairness considerations
as applied to the particular facts of this case and not upon an obligation as
articulated by the Applicant in the proposed question, the answer to the
question would not be dispositive of an appeal in this matter. I accordingly decline
to certify this question.
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