Hernandez v. Canada (Minister of Citizenship and Immigration), 2005 FC 429

Date: 20050331

Dockets: IMM-6352-04

IMM-6353-04

IMM-7038-04

Citation: 2005 FC 429

Ottawa, Ontario, this 31^st day of March, 2005

PRESENT:      THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

ERIC HERNANDEZ

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

AND THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER

SNIDER J.

[1]         The Applicant, Mr. Eric Hernandez, is a citizen of the Philippines. He arrived in Canada as a permanent resident on June 14, 1985, at the age of 12. On September 8, 2003, the Applicant was convicted and sentenced to 30 months imprisonment for possession of cocaine for the purposes of trafficking under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. This offence potentially carries a life sentence.

[2]         Subsequent to his conviction, three steps were taken that led to his deportation on August 10, 2004:

1. The Officer's Report

On November 10, 2003, an immigration officer with Canada Border Services Agency (the "Officer"), interviewed the Applicant at Stoney Mountain Penitentiary. The purpose of his visit was to decide, based on the interview and other information collected, whether or not to write a report pursuant to s. 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") and request a referral for an admissibility hearing. On February 10, 2004, the Officer sent his report (the "Officer's Report") to the Director of the Case Management Branch for Citizenship and Immigration Canada ("CIC"). In his report, the Officer indicated that the Applicant is inadmissible according to the criteria in s. 36(1)(a) of the IRPA (serious criminality), due to his conviction of an offence punishable by a maximum term of imprisonment of at least ten years. He recommended that an admissibility hearing be held.

2. The S. 44(2) Referral

On May 10, 2004, the Minister's Delegate signed a referral and the Applicant was referred for an admissibility hearing under s. 44 (2) of the IRPA (the "s. 44(2) Referral").

     3.      The Deportation Order

The Admissibility Hearing was heard by a member of the Immigration Division of the Immigration and Refugee Board (the "Immigration Division") on July 6, 2004. On July 6, 2004, the Immigration Division issued an order, pursuant to s. 45(d) of the IRPA, that the Applicant be deported (the "Deportation Order") on the basis that he fell within s.36(1)(a) of the IRPA.

[3]         The Applicant seeks judicial review of the Officer's Report dated February 10, 2004 (Court file IMM-7038-04), the s. 44(2) Referral dated May 10, 2004 (Court File IMM-6353-04) and the Deportation Order dated July 6, 2004 (Court file IMM-6352-04).

ISSUES

[4]         The issue raised by the Applicant, with respect to both the Officer's Report and the s. 44(2) Referral, is whether there was a breach of the duty of fairness in these two steps leading to the removal order against the Applicant. However, the threshold issue to be dealt with is whether the decision makers in this process have the ability to consider factors beyond the fact of the Applicant's conviction. Stated with more clarity, the issues are as follows:

1. What is the scope of: (a) the Officer's discretion under s. 44(1) of the IRPA in making a decision as to whether to prepare an Officer's Report to the Minister (or, as in this case, the Minister's delegate); and (b) of the discretion of the Minister's delegate, under s. 44(2) of the Act, in making a s. 44(2) Referral?

2. What is the duty of fairness owed in respect of: (a) the Officer's Report under s. 44(1) of the Act; and (b) the decision of the Minister's delegate as to whether to refer the Officer's Report to the Immigration Division under s. 44(2) of the Act?

3. In the case of the Applicant, was there a breach of the duty of fairness?

[5]         The third of the decisions - the Deportation Order - came as a consequence of the Officer's Report and the s. 44 Referral. If I overturn either of those two decisions, the order deporting the Applicant should not stand. Conversely, should I affirm those two decisions, the Deportation Order is valid. No separate submissions were made and no issue arises with respect to the Deportation Order.

STATUTORY SCHEME

[6]           The Applicant is a permanent resident of Canada who was convicted of a serious criminal offence. These two criteria bring him within s. 36(1) (a) of the IRPA. Section 36(1) (a) is very concise:

In this case, the Applicant was convicted of the possession of cocaine for the purposes of trafficking under s. 5(2) of the Controlled Drugs and Substances Act. Under s. 5(3), a person, if convicted, is liable to imprisonment for life. The Applicant was convicted in Canada and sentenced to 30 months imprisonment. He, therefore, meets the requirements set out in s. 36(1) (a) that define serious criminality as being an offence which is either "punishable by a maximum term of imprisonment of at least 10 years" or "for which a term of imprisonment of more than six months has been imposed".

[7]         Where the criteria in s. 36(1) (a) are met, the steps in the process that must be followed are set out in sections 44 and 45 of the IRPA. The first step is the decision of an immigration officer to prepare a report:

[8]         If a report is prepared, it must be sent to the Minister or the Minister's delegate to decide if the report is well-founded and whether it should be referred to the Immigration Division for an admissibility hearing:

[9]         Although s. 45 defines the possible outcomes of the admissibility hearing, the only option possible for someone in the Applicant's position is set out in s. 45(d):

[10]       The Act specifically denies a right of appeal to the Immigration Appeal Division (the "IAD") where a permanent resident is found to be inadmissible on the grounds of serious criminality:

BACKGROUND

[11]       In analyzing the issues before me, it is helpful to review some of the more relevant aspects of the history and the background of the concepts at issue. How would the Applicant have been treated under the Immigration Act, R.S.C. 1985, c. I-2 (the "former Act")? How have the new provisions been interpreted by CIC? How was the Applicant treated under the IRPA?

Procedures under former Act

[12]       Under the former Act, the Applicant would have met the threshold set out in s. 27(1)(d) by virtue of having been convicted of an offence for which a term of imprisonment of more than six months has been imposed. Accordingly, the immigration officer was obliged to forward a written report to the Deputy Minister; that is, no discretion was allowed and the report had to be sent. Further, all that was to be contained in the report were "the details of any information . . . indicating that a permanent resident is a person who" was so convicted. The immigration officer was not mandated to consider any "relevant facts".

[13]       The second step was a consideration by the Deputy Minister pursuant to s. 27(3). The Deputy Minister could exercise some discretion in that he was to forward the report to a senior immigration officer if he considered it "appropriate to do so in the circumstances" and could direct that an inquiry be held by the senior immigration officer. Presumably, even in the case of someone in the position of the Applicant, the Deputy Minister could determine that it was not appropriate to take the case any further.

[14]       If there was a direction from the Deputy Minister that an inquiry be held, s. 27(6) set out that the immigration officer was to cause such an inquiry to be held. The result of an inquiry was set out in s. 32(2); a deportation order would have issued to the Applicant.

[15]       However, the Applicant would have had one more chance to remain in Canada. He would have had a right of appeal to the IAD. Under s. 70(1)(b) of the former Act, a permanent resident subject to a removal order could appeal to the IAD "on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada". For those appellants convicted of a crime in Canada, the IAD was to take into account a wide range of factors including the following non-exhaustive list:

1.       the seriousness of the offence;

2.       potential foreign hardship;

3.       the possibility of rehabilitation;

4.       the length of time spent in Canada and the degree to which the appellant was established here;

5.       the family in Canada and the dislocation to the family that deportation would cause; and

6.       the support available to the appellant.

[16]       These factors were commonly referred to as the "Ribic factors", since they were first stated in a decision of the IAD in Ribic v. Canada(Minister of Employment and Immigration) (August 20, 1985), Doc. I.A.B. T84-9623 (Imm. App. Bd.). These six factors were affirmed by the Supreme Court of Canada in Chieu v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84.

[17]       Section 64 of the Act now precludes appeals to the IAD in cases of "serious criminality". Because the Applicant falls within s. 64, he is not entitled to a hearing before the IAD. With the IRPA regime now in force, the question that remains is whether anyone, at any stage leading to removal, examines the Ribic factors? Or, is the result of serious criminality a direct route to deportation regardless of the circumstances? The effect of this Court's rulings in Correia v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 964 and Leong v. Canada (Solicitor General) [2004] F.C.J. No. 1369 appears to be that the Ribic factors cannot be considered under s. 44(1) or 44(2) of IRPA. Those cases are discussed later in these reasons.

Departmental View of s. 44(1) and s. 44(2) Decisions

(a)     Parliamentary Committee Proceedings

[18]       The CIC officials, who had input into the drafting of the IRPA, are clearly of the view that all the factors were still to be considered in cases of serious criminality. They are also of the view that both the immigration officer acting under s. 44(1) and the Minister's delegate under s. 44(2) were responsible for this analysis. This subject was the focus of comments by Ms. Joan Atkinson, an Assistant Deputy Minister with CIC, delivered April 26, 2001 to the Standing Committee on Citizenship and Immigration. The Committee was in the process of conducting hearings into Bill C-11 (IRPA). Ms. Atkinson's comments were as follows:

. . . I think we need to clarify, first of all, the claim that some are making that the elimination of appeal rights for permanent residents who are convicted of a serious offence in Canada, for which a term of imprisonment of at least two years has been imposed, will result in the automatic removal of long-term permanent residents without any evaluation of the circumstances of the case. That is simply not true.

. . . We have built and will continue to build safeguards into the system at the front end of the process to ensure that the circumstances of a person's situation are fully considered before any decision is taken to take any enforcement action against that individual.

. . .

Under Bill C-11 [s. 44(1)], the officer investigating the case of a permanent resident with serious criminality has new discretion right at the front end of the process not to write a report recommending that enforcement action be taken. The recommendation about looking at whether or not to consider writing a report is only taken after all the factors have been considered, after all the individual circumstances of the permanent resident have been considered. The length of time in Canada, the presence of family in Canada, the seriousness of the crime, the circumstances surrounding the commission of the offence, and so on, are all factors taken into account before a decision is taken, and will continue to be factors taken into account before a decision is taken.

The minister's delegate who reviews the case [s. 44(2)], as under the current act, will again consider all the circumstances of the case in determining whether or not to pursue that enforcement action. . .

. . .

We think that the balance we have in Bill -11 is the correct balance between finding ways to protect the safety and security of Canadians and allowing us to remove serious criminals quickly, and ensuring due process and ensuring sensitivity to particular circumstances of individuals before making those decisions.

[19]       These comments could not be clearer; CIC believed that, under sections 44(1) and 44(2), both the immigration officer and the Minister's delegate would take all the circumstances into account prior to engaging the removal process - specifically in the case of serious criminality.

(b)     Department Procedures Manual

[20]       This interpretation by CIC of sections 44(1) and 44(2) has been reflected in the relevant chapters of the department's manual - ENF 5, "Writing Section 44 (1) Reports" and ENF 6, "Review of Reports under A44(1)".

[21]       ENF 5 is intended to aid immigration officers in making a decision to write a s. 44(1) report. Included as Appendix A to these reasons is a flowchart adapted from ENF 5 outlining CIC's understanding of the sections 44(1) and 44(2) process. As is readily apparent from this flowchart, the CIC view is that the writing of a report by an officer and the subsequent referral by the Minister's delegate is only one option. Another stated option is that the officer or Minister's delegate, as applicable, may authorize a permanent resident to remain. The flowchart appears to be applicable for any type of inadmissibility covered in the IRPA whether due to misrepresentation, health issues or otherwise. There is no separate track for persons subject to serious criminality.

[22]       In ENF 6, guidance is given to the Minister's delegate on how to exercise the discretion under s. 44(2), in deciding whether to refer an immigration officer's report to the Immigration Division. Paragraph 19.2 sets out a non-exhaustive list of factors that "can be considered in both criminal and non-criminal cases". The list is as follows:

·         age at time of landing;

·         length of residence;

·         location of family support and responsibilities;

·         conditions in home country;

·         degree of establishment;

·         criminality; and

·         history of non-compliance and current attitude.

[23]       With respect to criminal cases, the Manual provides further advice to the Minister's delegate. While stating that "[t]he fact that a conviction falls within A36 (1) [serious criminality] is itself an indication of its seriousness for immigration purposes", the department asks the Minister's delegate to consider whether the crime involved violence, the person's criminal history, the length of the sentence and the potential for rehabilitation.

[24]       Paragraph 19.3 of ENF 6, sets out a special review procedure for permanent residents who:

·         became permanent residents before 18 years of age;

·         were permanent residents for a period of 10 years before being convicted of a reportable offence; and

·         would not have a right of appeal to the IAD by virtue of s. 64 of IRPA.

For these persons, the s. 44(2) referral decision must be made by the Director, Case Review, Case Management Branch, NHQ.

[25]       This set of procedures has, for the most part, been followed by CIC immigration officers prior to a decision being taken to refer a permanent resident to the Immigration Division for an admissibility hearing.

ISSUE#1: SCOPE OF DISCRETION

[26]       The first issue involves statutory interpretation. What I must determine is whether s. 44(1) and s. 44(2) of the IRPA, should be read to allow an immigration officer or Minister's delegate to consider other factors in the case of a permanent resident who is caught by the serious criminality provisions of s. 36 of the IRPA. The modern approach to this task has been described as reading the relevant provisions in their entire context and in their grammatical and ordinary sense and harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament (E.A. Driedger, Construction of Statutes (2^nd Ed) (Toronto: Butterworth's, 1983) at 87). I will keep that in mind as I proceed with this part of the analysis.

[27]       Section 44(1) involves a two-step process; first the officer must form an opinion as to admissibility and, second, he or she must decide whether to prepare a report.

[28]       Section 36(1)(a) sits in stark contrast to almost all of the other inadmissibility provisions where some degree of judgment is required. When considering s. 36(1)(a), there is absolutely no residual discretion to be exercised before a determination is made as to whether someone is inadmissible. Specifically, s. 36(1)(a) is met if the permanent resident or foreign national has either been convicted in Canada of an offence with a maximum term of at least 10 years or of an offence for which a term of imprisonment of more than six months has been imposed. In either case, there can be no question. A sentence is a sentence. In light of a conviction by a court in Canada, the inevitable conclusion is that the offence occurred. Thus, on the basis of a simple reading of s. 36(1)(a), the Applicant, who has been sentenced to 30 months for a crime with a maximum penalty of life imprisonment, is inadmissible on the grounds of serious criminality. There is no choice for the officer; he must be of the opinion that the person is inadmissible.

[29]       In spite of this clarity regarding inadmissibility under s. 36(1)(a), s. 44(1) allows a residual discretion in the immigration officer. Once the immigration officer reaches his opinion of inadmissibility, the officer "may prepare a report setting out the relevant facts". The IRPA does not set out what "relevant facts" would be. Nor does it confine the discretion of the officer in preparing a report. Parliament has not provided any direction to how these officials are to carry out their duties under these provisions.

[30]       As noted above, my colleague in Correia, at para. 22, concluded that, in the case of serious criminality, the relevant facts relate solely to the fact of the conviction. His reasoning, at paras. 20-23, was the following:

The decision to make a report must be considered against the backdrop of this Division of the Act which has as its purpose the removal of certain persons from Canada. The discretion not to report must be extremely limited and rare otherwise it would give to officials a level of discretion not even enjoyed by the responsible Minister.

Whatever the scope of that discretion may be in any particular case in respect to different grounds of inadmissibility, with respect to serious criminality it is not the responsibility of the officer, by refusing to report his opinion, to effectively find a person to be "admissible" for reasons unrelated to serious criminality.

For purposes of the subsection 44(1) report, that report is restricted to the "relevant facts". In the case of serious criminality those facts relate to the fact of the conviction.

The nature of the inquiry does not involve issues of humanitarian and compassionate matters, rehabilitation or such factors. It is a very limited inquiry being essentially a confirmation that the conviction was in fact handed down. After that the process for removal is engaged.

[31]       I note, first, that Justice Phelan in Correia did not conclude that the immigration officer was precluded from considering anything beyond the conviction itself. This interpretation would strip s. 44(1) of all its meaning. Rather, I read his decision as saying that the facts considered must be related to the criminal conviction. Even in cases of serious criminality, Parliament must have intended that the officer be allowed some discretion. Use of the word "may" confirms this intent. If Parliament had intended to strip the discretion from the officer in cases of serious criminality, it could have done so with explicit language. The question that remains is what is meant by the term "related facts". After reviewing the materials before me, I would not interpret "related facts" as narrowly as was done by my colleague.

[32]       I had before me, as part of the record in this application, the transcript from the Parliamentary Committee Proceedings and the Department Procedures Manual. I do not believe that either of these relevant documents was placed before the judges hearing Correia and Leong. These are, in my view, very relevant to the analysis and have been key to my conclusions which differ to some degree from those of my colleagues.

[33]       In support of his position, the Applicant proffered the transcript from the Committee Proceedings on Bill C-11 and the CIC manual. This evidence is described in detail above. As is readily apparent from a review of the Committee proceedings and the CIC Manual, the department has never had any doubt as to how the relevant provisions of the IRPA are to be interpreted. In CIC's view, s. 44(1) and 44(2) allow the officer and the Minister's delegate to exercise their discretion in a very broad manner. Even in cases of serious criminality as set out in s. 36 of the IRPA, these public servants are to take into account "all the circumstances" of each case.

[34]       This unequivocal view of the law by public servants speaking on behalf of CIC or writing manuals is not, as we know, determinative. The Supreme Court of Canada has cautioned against using Parliamentary debates surrounding the enactment of legislation because "they are not always a reliable source for the legislature's intention" (Construction Gilles Paquette Ltée v. Entreprises Végo Ltée, [1997] 2 S.C.R. 299, at para. 20). Nevertheless, with this cautionary note, Hansard evidence can play a limited role in the interpretation of legislation (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 35. Similarly, in Andersonv. Canada(Customs Revenue Agency), 2003 FCT 667, at para. 31, Justice Dawson stated that "Hansard cannot establish the intent of Parliament, but it may provide relevant evidence as to the background and purpose of the legislation". While the evidence of the Assistant Deputy Minister at the Committee hearings is not Hansard, it is reasonable to conclude that her interpretation of the provisions was accepted by the members of the Committee who then supported the passage of the Bill. Accordingly, it is appropriate to give this evidence some weight.

[35]       Even though manuals and guidelines "are not binding on government institutions and even less so on the courts", they can offer opinion on the purpose or meaning of the legislation (Canada (Information Commissioner) v. Canada(Minister of Citizenship and Immigration), 2002 FCA 270, at para. 37).

[36]       When I examine the procedures described by the Assistant Deputy Minister and in the Manual, I see a procedure that is in harmony with the IRPA. The factors listed in the Manual, in my view, have some relevance to the criminal conviction and are connected to the purpose of the IRPA. I see nothing in the objectives of the IRPA or within the inadmissibility provisions that states "One strike and you're out". Whether someone is likely to re-offend or to be rehabilitated, whether a person has a strong support network that can keep them on the straight and narrow in the future or whether this was a first conviction are all matters that relate to an assessment of whether, in spite of the serious criminality, this person is or is not going to help enrich and strengthen the social and cultural fabric of Canadian society (s. 3(1)(b)).

[37]       Certainly, there is a balancing to be done in order to achieve other objectives of protecting the safety of Canadians and maintaining the security of Canadians (s. 3(1)(h)) and promoting international justice and security ... by denying access to Canadian territory to persons who are criminals (s. 3 (1)(i)). However, I do not read these objectives as automatically denying access to Canada to a person who has a criminal conviction. In this regard, I agree with the statement of Ms. Atkinson:

We think that the balance we have in Bill -11 is the correct balance between finding ways to protect the safety and security of Canadians and allowing us to remove serious criminals quickly, and ensuring due process and ensuring sensitivity to particular circumstances of individuals before making those decisions.

[38]       The result, when an officer determines that he or she is not going to prepare a report, does not change the fact that the person is inadmissible, as defined by the IRPA; it does not mean the person is "admissible". The practical effect of a decision by the officer not to prepare a report is that, in spite of being "inadmissible", as defined in IRPA, there are compelling reasons to allow that person to remain in Canada.

[39]       My reasoning is the same with respect to the decision to be made by the Minister's delegate as to whether a report is well-founded, pursuant to s. 44(2).

[40]       In spite of my interpretation of the relevant provisions, I do have a concern with the process to be followed. Under the former Act, the considerations of "all the relevant circumstances" was undertaken by the IAD, an independent, quasi-judicial body, whose decisions were reviewable by this Court. Where an appeal was allowed, the Minister and all affected parties could see, in the Reasons, exactly why the permanent resident was being allowed to stay in spite of his serious criminality. A decision of the IAD set out the factors and its reasons. The IAD could place the permanent resident under strict conditions. Under the scheme now in place within CIC and described in the Manual, a decision to not refer made by an immigration officer would not likely ever see the light of day. As set out in paragraph 8.1 of ENF 5, the only trace of the officer's decision, under s. 44(1) not to report would be as follows:

In rare instances, an officer may choose not to prepare a report with respect to a person who, in the opinion of the officer, is inadmissible on grounds involving . . . serious criminality . . .    In these cases, the officer should notify his/her supervisor in writing, and enter a Type 01 NCB - "Watch For" into FOSS. . . . The non computer-based (NCB) entry should include full details of the inadmissibility, a brief account of what transpired and the officer's initials or name.

[41]       It is one side of the delicate balance to argue that all the individual circumstances must be considered before a removal. However, the other side is the consequence flowing from the CIC interpretation that persons convicted of serious crimes may be allowed to stay in Canada with only a notation in the CIC file.

[42]       While acknowledging this concern, I conclude that the scope of the discretion of an immigration officer under s. 44(1) and of the Minister's delegate under s. 44(2) is broad enough for them to consider the factors outlined in the relevant sections of the CIC Procedural Manual. To the extent that some of these factors may touch upon humanitarian and compassionate considerations, I see no issue.

ISSUE#2: DUTY OF FAIRNESS

[43]       Having concluded that the scope of the officer's or Minister's delegate's discretion extends beyond considering the fact of a conviction, the next question is one of the extent of the procedural fairness owed to an Applicant as the officials carry out their functions under s. 44(1) and 44(2).

[44]       The leading authority on the duty of fairness owed by officials is Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 21-28. In assessing the duty of fairness, one should review the following:

·         the nature of the decision being made and the procedures followed in making it;

·         the nature of the statutory scheme;

·         the importance of the decision to the individual affected;

·         the legitimate expectation of the individual challenging the decision; and

·         the choices of procedures made by the agency.

[45]       As emphasized by Justice L'Heureux-Dubé in Baker, at para. 22:

[U]nderlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

Nature of the Decision

[46]       Neither the Officer's Report under s. 44(1) nor the s. 44(2) Referral constitutes the final decision to remove the Applicant. After a referral under s. 44(2) by the Minister's delegate, an inquiry - referred to as an admissibility hearing - is held before the Immigration Division. Pursuant to s. 45, the decision to make a removal order is made by the Immigration Division. In the case of the Applicant, that inquiry was held.

[47]       However, the options of the Immigration Division upon the s. 44(2) Referral, in a case of serious criminality, appear to be very limited. Section 45(d) requires the Immigration Division to "make the applicable removal order against a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible". As discussed earlier in these reasons, under s. 36(1) of the IRPA, the Applicant is inadmissible; there is no room for any other finding. Once the s. 44(2) Referral is made to the Immigration Division, the only outcome of the inquiry, that I can see, is a removal order. Finally, an appeal to the IAD has been removed for persons in the position of the Applicant. Thus, the only power to prevent the Applicant's removal rested with the immigration officer and the Minister's delegate. Only if either one or the other of these two officials had decided not to take further action would the Applicant be able to avoid the issuance of a removal order under s. 45(d).

[48]       A review of the transcript from the Applicant's admissibility hearing confirms the limited jurisdiction of the Immigration Division in the case of the Applicant. After reviewing the details of the criminal conviction and the sentence imposed, the Immigration Division stated that, "This leaves me with no alternative but to order that you be deported from Canada". There was no ability for the Immigration Division to take related factors into account in the inquiry process.

[49]       This apparent "finality" of the two decisions appears to support a higher duty of procedural fairness. Nevertheless, I also must consider relevant case law that has characterized these types of decisions as "purely administrative".

[50]       The nature of analogous decisions under the former Act was considered by the Federal Court of Appeal in that case of Kindler v. MacDonald [1987] 3 F.C. 34 (F.C.A.). The Respondent submits that Kindler is relevant to the case before me; the Applicant submits that the findings in Kindler do not apply. The hearing judges in both Correia and Leong relied on Kindler to conclude that the decisions under s. 44(1) and 44(2) were administrative in nature. I agree with my colleagues. For the reasons in the following paragraphs, I am of the view that, in spite of newly-worded provisions under IRPA, Kindler is applicable to the case before me.

[51]       In Kindler, the Court of Appeal was considering the legality of decisions made under s. 27 of the former Act by the immigration officer and the Deputy Minister leading up to an inquiry. Mr. Kindler argued that the Deputy Minister had an obligation to afford him a non-oral or paper hearing before issuing a direction under s. 27(3) of the former Act. Under s. 27(3) of the former Act, the referral decision of the Deputy Minister is very similar to the referral decision of the Minister's delegate under s. 44(2). The conclusion of the Federal Court of Appeal was that he did not have such a right.

[52]       Although the facts of Kindler involved a person with no legal status in Canada, rather than a permanent resident, I believe that the reasoning in that case remains applicable to the provisions of the IRPA and to the facts before me. In considering the nature of the decisions in question, Justice MacGuigan stated, at para. 9:

. . . Whether it is the decision of the Deputy Minister under subsection 27(3) to issue a direction for an inquiry to a senior immigration officer, or the subsequent decision of a senior immigration officer under subsection 27(4) to cause that inquiry to be held, or the parallel decision such an officer under section 28 to cause an inquiry to be held, it is, I believe, a purely administrative decision. The senior immigration officer does not even have to reflect on the question; he is merely a conduit through whom the inquiry is caused by operation of the Act. The Deputy Minister has only to decide that an inquiry is warranted, which he could do on the existence of a prima facie case. His decision is analogous to that of any prosecutor who decides to proceed with a charge before the courts. [emphasis added]

In his conclusions, Justice MacGuigan considered all of the decisions made prior to the inquiry itself to be "purely administrative".

[53]       In the inquiry, as here, the possible outcomes of the inquiry were limited. At para. 15, Justice MacGuigan stated:

It is true that the sole question in issue before the immigration adjudicator at the inquiry would be whether the factual allegations against the respondent are true. If they are, the result, deportation, must follow, since subsection 32(6) of the Act precludes the adjudicator from considering special circumstances in determining whether to issue a deportation order in a case such as this. But in that respect the adjudicator is no different from many other triers of fact - the judge in a murder case, for example, who has no option as to imposing the penalty of life imprisonment if the facts are proved. What the adjudicator must do is scrupulously observe fairness in making his decision on the facts.

[54]       Thus, even though the provisions have been amended and the final step of an appeal to the IAD removed, the analogies of the case before me to Kindler are evident. Under the current framework, all steps move towards an admissibility hearing, just as they did under the former Act. The outcome of this analysis and the applicability of Kindler is that the level of procedural fairness falls at the low end of the spectrum.

[55]       The Applicant draws the Court's attention to the decision of Cha v. Canada(Minister of Citizenship and Immigration) [2004] F.C.J. No. 1842, and submits that the reasoning of Cha, is inconsistent with the reasoning in Correia and Leong. This is inaccurate. Cha involved a foreign national, not a permanent resident, who received a fine and licence suspension for impaired driving. He was not sentenced to a term of imprisonment. These facts distinguish Cha, but more importantly, the decision being reviewed was only the decision to grant the deportation order, not the decision to report or the decision to refer. It is essential to maintain the distinction between these decisions as the legislation does.

[56]       Accordingly, looking at the first of the Baker factors, I am persuaded that the nature of these administrative decisions favours a relatively low duty of fairness.

Nature of the Statutory Scheme

[57]       The next of the Baker factors to be considered is the nature of the statutory scheme. As pointed out by Justice L'Heureux-Dubé in Baker , at para. 24, "Greater procedural protections . . . will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted".

[58]       The provisions at issue before me are part of Division 4 of the IRPA entitled "Inadmissibility". Realistically speaking, it would be rare for someone convicted of serious criminality to complete the Division 4 procedure without receiving a removal order. Thus, the Officer's Report and the s. 44(2) Referral are, most often, determinative of the issue of whether the Applicant is to be issued a removal order. Further, without a statutory right of appeal to the IAD, the Applicant is unable to have a further consideration of the inadmissibility determination.

[59]       It would be, however, artificial to consider the Admissibility Division in isolation from the rest of the IRPA, as it relates to the Applicant. As was recognized by my colleagues in Correia and Leong, the Applicant had the right to make an application to the Minister for an exemption on humanitarian and compassionate ("H & C") grounds (s. 25). He could have availed himself of a pre-removal risk assessment (s. 112). Under both of these processes, the Applicant would been permitted to make submissions that would have been taken into account by the decision makers. None of the Officer's Report, the s. 44(2) Referral or the removal order is the end of all possibilities for the Applicant to remain in Canada. Viewing the statute as a whole, the decisions at issue in this proceeding are not necessarily determinative of whether the Applicant will be removed from Canada.

[60]       Accordingly, considering the rights of the Applicant under s. 25 and s. 112, the nature of the statutory scheme ensures that the Applicant need not be removed without consideration of H & C and risk factors. This favours a lower duty of procedural fairness.

Importance of the Decision to the Applicant

[61]       There can be no question that the decisions of the immigration officer to prepare a report and of the Minister's delegate to refer that report to the Immigration Division are important to the Applicant. As discussed, the outcome will be a removal order with no right of appeal to the IAD. The Applicant points out that for someone in his position, who comes to Canada as a child and has been here for a long time, the decision has extreme importance. However, as noted above, the Applicant had access to two other procedures where H & C factors and possibility of risk upon his return to the Philippines could have been considered.

Legitimate Expectations of the Individual Challenging the Decision

[62]       The fourth factor in the Baker analysis is the legitimate expectation of the person challenging the decision. As stated at para. 26 of Baker, "if the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness". Further, the circumstances affecting procedural fairness take into account the promises or "regular practices" of the decision makers. Finally, Justice L'Heureux-Dubé commented that "it will generally be unfair for them to act in contravention of representations as to procedure."

[63]       In Baker, in examining this factor in the context of an immigration officer's decision on an H & C application, the argument before the Supreme Court was that the duty was heightened by the articles of an international convention. The Court rejected this argument.

[64]       However, under both this factor and the fifth factor, the procedures set out in the Manual are relevant. Paragraph 8.7, ENF 5 of the Manual states that in making a s. 44(1) report against a permanent resident:

[A]ll persons who are or may be subject to a report are to be informed of the criteria against which their case is being assessed and the possible outcome of the review (including the possibility of loss of appeal rights in A64 cases . . . ). They should also be given the opportunity to provide information. This can be done by way of in-person interview or in writing. For submissions in writing, sufficient time should be allowed for receipt by way of regular mail . . .

[65]       Paragraph 12.3 provides that:

. . . an officer who writes a report must also provide a copy of that report to the person concerned. . . It is accepted in the context of "natural justice" that persons who are reported under A44(1) should fully understand both the case against them and the nature and purpose of the report.

[66]       Two important elements of the procedures set out in the Manual are: (1) the right to make submissions, either orally during an interview or in writing; and (2) the right to receive a copy of the report.

[67]       Given that the Manual sets out the "practices" of CIC and given that the Manual is available to the public on the CIC website, it is reasonable to conclude that an affected person has an expectation that these two elements would be included in the duty of fairness afforded to each person. This appears to set the bar for the duty of fairness at something more than merely acting in good faith, as the Court in Kindler determined. This is not unreasonable now that the Supreme Court, in Baker, has given us more guidance on the matter of procedural fairness.

Choice of Procedures by CIC

[68]       Justice L'Heureux-Dubé, at para. 27 of Baker, stated that this analysis should "take into account and respect" the choice of procedures made by the agency itself. She continued by stating that, while this was not determinative, "important weight must be given to the choice of procedures made by the agency itself".

[69]       In this case, CIC has adopted the procedures described above. Baker teaches us that weight should be given to these choices.

Application to s. 44(1) and 44(2) Decisions

[70]       Balancing all of these factors, I find that they point toward a more relaxed duty of fairness, similar to that found by the Supreme Court in Baker. In my view, the duty of fairness implicitly adopted by CIC for purposes of the s. 44(1) report is appropriate. Although these are administrative decisions (rather than quasi-judicial) and although the person affected has some other rights to seek to remain in Canada, these are serious decisions affecting his rights. CIC, whose choice of procedures should be respected, has elected to give the affected person a right to make submissions, either orally or in writing and to obtain a copy of the report. Having a copy of the report would allow the affected person to decide whether he wishes to seek judicial review of the immigration officer's report to this Court. This, I conclude is the duty of fairness owed the Applicant and others in his position with respect to the Officer's Report.

[71]       Implicit in this duty is, in my view, a requirement that the person being interviewed by an immigration officer is informed of the purpose of that interview so that he may make meaningful submissions. Further, I would think that the duty of fairness would require the immigration officer put to the interviewee any information he has that the interviewee would not reasonably be expected to have. A further implication is that the person should be offered the opportunity to have counsel present at any interview or to assist him in preparing written submissions. All of this is part of what CIC has acknowledged is required for the person to "fully understand both the case against them and the nature and purpose of the report".

[72]       Given my conclusion that the duty of fairness is "relaxed", there are a number of procedures that are not essential. As was concluded in Baker, I would agree that an oral interview by the immigration officer is not always required, as long as the affected person is given an opportunity to make submissions and to know the case against him. Nor do I believe that the duty requires that the Officer's Report be put to the Applicant for a further opportunity to respond prior to the s. 44(2) Referral. The duty of fairness in this case does not reach the same level as in Bhagwandass v. Canada(Minister of Citizenship and Immigration), [2001] 3 F.C. 3 (F.C.A.).

ISSUE#3: Application of this Duty of Fairness to the Applicant

[73]       In the case before me, the Applicant, in his affidavit, sets out that an immigration officer came to interview him on November 20, 2003. He maintains that he did not know that the purpose of the interview was to prepare a s. 44(1) report, that he was never told the criteria on which he was being assessed and that he was not given an opportunity to make submissions opposing his removal from Canada. He states that, while he was told he could have counsel for an inquiry, he was not advised on whether he could have counsel represent him on the issue of whether his case should be referred to an inquiry. The Applicant acknowledges that he was asked questions. However, he argues that he would have liked to have made submissions on: the closeness of his family relationships, the information that he was on day parole; his integration into society and to rebut the conclusion that he has no proven means of support.

[74]       The Applicant was not cross-examined on his affidavit. Nor do I have an affidavit from the immigration officer setting out a different version of the procedures followed in this case.

[75]       The officer's notes indicate that he was sensitive to the issues and the related facts. Nevertheless, it is unclear whether the Applicant was made aware of these matters.

[76]       On the basis of the evidence before me, I am not satisfied that the immigration officer provided the Applicant with the appropriate level of procedure fairness. There were three errors:

1.       The Applicant was not advised of the purpose of the interview;

2.       He was not allowed to make submissions; and

3.       He was not given a copy of the Officer's Report.

[77]       For these reasons, the Officer's Report should be quashed. In light of the errors for the Officer's Report, it is impossible to determine whether the s. 44(2) Referral would have been different had the correct procedures been followed at the s. 44(1) reporting stage. Thus, I would quash that decision as well.

[78]       The Respondent concedes that, if either the Officer's Report or the s. 44(2) Referral is found to be invalid, the Immigration Division will have had no jurisdiction to proceed with the Applicant's admissibility hearing and no jurisdiction to issue the deportation order against him. I agree and will allow the application to quash that decision as well.

CONCLUSION

[79]       In summary, it is my view that the officer acting under s. 44(1) and the Minister's delegate acting under s. 44(2) have the discretion to consider facts related to the Applicant beyond the fact of his conviction. I also conclude that the officer did not satisfy the requirements of the duty of fairness that arise in the context of s. 44(1) decisions. Orders will issue allowing all three applications.

[80]       Recognizing that the question of discretion under s. 44(1) and 44(2) of the IRPA will now be subject to somewhat conflicting jurisprudence and that this decision will raise issues of general importance, the Applicant and Respondent jointly proposed that I certify questions. I have stated these questions as follows:

1. What is the scope of: (a) the immigration officer's discretion under s. 44(1) of the IRPA in making a decision as to whether to prepare a report to the Minister (or, as in this case, the Minister's delegate); and (b) of the discretion of the Minister's delegate, under s. 44(2) of the Act, in making a decision as to whether to make a referral to the Immigration Division for an inquiry?

2. What is the duty of fairness owed in respect of: (a) the immigration officer's decision on whether to prepare a report under s. 44(1) of the Act; and (b) the decision of the Minister's delegate as to whether to refer such report to the Immigration Division under s. 44(2) of the Act?

[81]       In my view, these questions are determinative in this case and would be of general importance as CIC officials continue to struggle with their obligations under the IRPA. I believe it would be of benefit for the Court of Appeal to consider these questions.

          "Judith A. Snider"

____________________________________

Judge

                                                       FEDERAL COURT

                      Names of Counsel and Solicitors of Record

DOCKETS:                                 IMM-6352-04

                                                     IMM-6353-04

                                                     IMM-7038-04

STYLE OF CAUSE:                    ERIC HERNANDEZ v. THE MINISTER OF

                                                     CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Winnipeg, Manitoba

DATE OF HEARING:                March 8, 2005

REASONS FOR ORDER:         The Honourable Madam Justice Snider

DATED:                                       March 31, 2005

APPEARANCES:

Mr. David Matas                                                                                   FOR APPLICANT

Ms. Nalini Reddy                                                                                  FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. David Matas                                                                                   FOR APPLCIANT

Barristers and Solicitors

Winnipeg, Manitoba

Mr. Morris Rosenberg                                                                           FOR RESPONDENT

Deputy Attorney General of Canada