Canada (Minister of Citizenship and Immigration) v. Cortez, docket IMM-231-99

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docket IMM-231-99

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Date: 20000121

Docket: IMM-231-99

Between :

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Applicant

- and -

Manuel de Jesus Cortez

Respondent

REASONS FOR ORDER

PINARD, J. :

[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division (the CRDD) of the Immigration and Refugee Board, dated December 17, 1998, dismissing the Minister's application to reconsider and vacate its determination that the respondent is a Convention refugee pursuant to subsection 69.2(2) of the Immigration Act, R.S.C. 1985, c. 28 (4th Supp.) (the Act).

Facts

[2] The relevant facts can be summarized as follows:

1991

August 26 Manuel de Jesus Cortez, the respondent and a citizen of El Salvadore, arrives in Canada and initiates his refugee claim. Canadian Immigration Centre (CIC) officials check the American computer data bank of criminal charges and find that a person matching the name, birth date and description of the respondent was charged in 1989 with hit and run causing damage to property in California (the offence). The respondent denied that he was arrested in California in 1989 on the grounds that he was in El Salvador. The respondent"s fingerprints are taken in the ordinary course of processing his claim.

1992

March 17 Respondent"s refugee hearing.

May 20 Applicant receives confirmation from the RCMP that the respondent"s fingerprints match a criminal history on file with the U.S. Federal Bureau of Investigation for the 1989 offence.

July 13 Respondent is determined to be a Convention refugee.

December ? Applicant receives a copy of the disposition of the charge for the offence. The disposition indicates that the respondent entered a guilty plea.

December 7 According to the applicant, Paula Schetzsle of CIC Douglas forwards a fax to Paul Littlefield of CIC Investigations advising that a search of the United States Department of Justice Immigration and Naturalization Service (USINS) indicated that the respondent entered the U.S. under the Amnesty Program on April 1, 1977. The respondent describes this fax as "third hand hearsay".

1993

January 26 In response to its inquiries, the applicant receives a letter from USINS indicating that the respondent was granted temporary resident status in the U.S. on October 3, 1988.

1997

May 7 Applicant seeks leave pursuant to subsection 69.2(3) of the Act to make an application under subsection 69.2(2) for a reconsideration and a vacation of the CRDD"s determination that the respondent is a Convention refugee.

June 2 Leave granted.

November 28 Applicant files a Notice of Motion pursuant to subsection 69.2(2) of the Act.

1998

October 29 At the commencement of the hearing, the respondent makes a motion to exclude the statutory declaration of Mr. John Gardner, Interventions Officer, Citizenship and Immigration Canada, dated May 7, 1997 and to dismiss the application under subsection 69.2(2). According to the applicant, this hearing was in 1997, but the Certified Record indicates that it took place in 1998.

December 17 Respondent"s motion granted.

The CRDD's decision

[3] The CRDD rejected the Minister"s application to reconsider and vacate its determination that the respondent is a Convention refugee. This rejection resulted from the CRDD"s decision to grant the respondent"s motion not to admit into evidence the material filed in the statutory declaration of John Gardner and to dismiss the Minister"s application.

[4] First, the CRDD decided not to admit the material filed in the statutory declaration, which provided the basis of the vacation application. This decision was based on the conclusion that the respondent suffered unfair delay amounting to an abuse of process affecting his security of person. More particularly, the CRDD inferred that, given the evidence at the original hearing of his psychological problems and the circumstances of the delay, the respondent was prejudiced and his rights were affected. The CRDD found that:

(a) The material filed in the declaration of Mr. Gardner is dated and goes back to 1991-1992. The Minister did not provide a reasonable explanation for the delay, characterized by the panel as "a period of some six and a half years at worst, or some five years in the best light."

(b) In Ratzlaff v. British Columbia (Medical Services Commission), [1996] 5 W.W.R. 532 (B.C.C.A.) and Blencoe v. British Columbia (Human Rights Commission), [1998] 9 W.W.R. 457 (B.C.C.A.) (on appeal to the Supreme Court of Canada, file no 26789), it was held that hearings involving professional bodies affect rights, and delays can infringe those rights. A right provided by refugee status is a right similar to that of persons who may have their professional status affected. Refugees have the right not to be returned to the country from which they fled, except in certain situations set out in the Act.

(c) In R. v. Askov, [1990] 2 S.C.R. 1199, a criminal case, the Supreme Court of Canada held that an undue delay in itself confers prejudice. The lower courts appear to be moving in that direction with regard to the effect of section 7 of the Canadian Charter of Rights and Freedoms (the Charter) on civil proceedings.

[5] Second, the CRDD dismissed the application of the Minister under sub-section 69.2(2). This decision was based on the following:

(a) The parties had agreed that, if the CRDD determined that the material filed in support of the vacation application was not admitted, there was no other evidence before the panel.

(b) The onus is on the applicant to establish his case.

Issues

[6] This matter raises three issues:

(i) Did the CRDD err in calculating the length of the delay?

(ii) Did the CRDD err in finding that the respondent's section 7 Charter rights were violated?

(iii) Did the CRDD err in characterizing the delay in bringing the application to vacate as an abuse of process?

Analysis

[7] The right of the Minister to seek the reversal of a favourable refugee determination is found in subsection 69.2(2) of the Act, which reads as follows:

(2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person.

(2) Avec l'autorisation du président, le ministre peut, par avis, demander à la section du statut de réexaminer la question de la reconnaissance du statut de réfugié au sens de la Convention accordée en application de la présente loi ou de ses règlements et d'annuler cette reconnaissance, au motif qu'elle a été obtenue par des moyens frauduleux, par une fausse indication sur un fait important ou par la suppression ou la dissimulation d'un fait important, même si ces agissements sont le fait d'un tiers.

If leave is granted, the Refugee Division must conduct a hearing pursuant to subsection 69.3(1). Its jurisdiction is set out in subsections 69.3(4) and (5):

(4) The Refugee Division shall approve or reject the application and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the Minister and the person who is the subject of the application.

(5) The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based.

(4) La section du statut accepte ou rejette la demande le plus tôt possible après l'audience et notifie sa décision, par écrit, au ministre et à l'intéressé.

(5) La section du statut peut rejeter toute demande bien fondée au regard de l'un des motifs visés au paragraphe 69.2(2) si elle estime par ailleurs qu'il reste suffisamment d'éléments justifiant la reconnaissance du statut.

[8] The first issue is whether the CRDD erred in fact in its calculation of the length of the delay. In my opinion, the applicant's memorandum is a bit misleading on this point. First of all, the applicant asks, "Did the CRDD err in fact in finding that the delay in the case at bar was six and one half years rather than three and one half years?" On page 2 of its reasons, however, the CRDD states that "[t]he delay in effect may be for a period of some six and a half years at worst, or some five years in the best light." Likewise, at page 6, the CRDD mentions "an unexplained delay of some six and a half years at the greatest". In my opinion, the CRDD never calculated the length of the delay at six and a half years, but merely said that it may have been that long.

[9] Second, the applicant herself says that the application to vacate was made "some four and a half years" after the CIC learned that the respondent was admitted to the United States as early as 1977. At no time in her memorandum does the applicant adduce any evidence in support of her allegation that the delay might have been as short as three and a half years. The applicant's argument, therefore, must be dismissed.

[10] The second issue in this case is whether the CRDD erred in law in finding that the respondent can rely on this delay to establish a violation of section 7 of the Charter. In the criminal context, prejudice can likely be inferred from an unreasonable delay between the laying of a charge and the hearing (see Askov, supra). However, where the delay in question is the passage of time between the alleged commission of the offence and the laying of the charge, the mere fact of the delay will not justify a finding that justice has been denied (see R. v. L. (W.K.), [1991] 1 S.C.R. 1091).

[11] In Akthar v. Canada (Minister of Employment and Immigration) (1991), 14 Imm.L.R. (2d) 39, the Federal Court of Appeal found that a refugee claimant is not in the same legal position as an accused person because refugee claimants are ascertaining claims against the State and bear the burden of showing that their claim has a credible basis. The Court of Appeal further stated "[i]f no disposition is ever made in his case an accused is and remains innocent; a refugee claimant in the same circumstances never attains refugee status." The Federal Court of Appeal concluded, in that case, that any claim in a non-criminal case to Charter breach based on delay must be supported either by evidence or, at the very least, by some inference from the surrounding circumstances that the claimant has in fact suffered prejudice or unfairness because of the delay.

[12] In Hernandez v. M.C.I. (1993), 154 N.R. 231, the Federal Court of Appeal again dealt with the issue of delay in processing a refugee claim. Robertson J.A. warned counsel that, in light of the framework set out in Akthar, supra, the "'unreasonable delay' argument cannot be perceived as a fertile basis for setting aside decisions of tribunals. It is probably closer to legal reality for one to presuppose that rarely, if ever, will the argument be successfully invoked."

[13] In Canadian Airlines International Ltd. v. Canada (Canadian Human Rights Commission), [1996] 1 F.C. 638 (leave to appeal to S.C.C. denied (1996), 205 N.R. 399), the Federal Court of Appeal dealt with the issue of whether a four and a half year delay between the filing of a complaint and a decision by the Human Rights Commission to appoint a Human Rights Tribunal was unreasonable. Décary J.A. adopted the words of the Manitoba Court of Appeal in Nisbett v. Manitoba (Human Rights Commission) (1993), 101 D.L.R. (4th) 744, at pages 756 and 757:

"It cannot now be doubted that the principles of natural justice and the duty of fairness which are part of any administrative civil proceeding include the right to a fair hearing, and that delay in the performance of a legal duty may amount to an abuse that the law will remedy" (at page 756); that "If there has been prejudice of such a kind and degree as to significantly impair the ability of a party to receive a fair hearing, then the administrative tribunal may well lose jurisdiction" (at page 756); that "In certain circumstances, unreasonable delay can constitute an abuse of process" (at page 756); and that "The question is simply whether or not on the record there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing" (at page 757) (our emphasis).

Décary J.A. went on to say that:

In our view, a delay in the proceedings of an administrative tribunal which has not been caused by the applicant will only give rise to prohibition where it is such that it prevents the tribunal from adequately fulfilling its legislative mandate in accordance with the requirements of natural justice. Thus, a tribunal may, by reason of its failure to proceed expeditiously, be unable to fulfill its mandate in accordance with these requirements, if there is evidence that the prejudice caused by the delay is such as to deprive a party of his right to a full and complete defence. The accent is to be put on the nature of the prejudice suffered by a party rather than on the cause for the delay or on the length of the delay. Since the test used with respect to non-penal proceedings is distinct from the test used with respect to penal proceedings, it may be less confusing to speak in terms of "unreasonable" delay when Charter rights are involved and of "unacceptable" delay when the rules of natural justice are involved.

[14] In the case at bar, the Minister applied to vacate the determination that the respondent is a Convention refugee. In its reasons, the CRDD started from the premise that the respondent is a Convention refugee whose status gives him the right not to be removed to El Salvador. The CRDD then concluded that because a successful vacation application might result in his return to El Salvador, his rights under section 7 of the Charter were infringed.

[15] This reasoning is circular. If the vacation application had been successful, then removal proceedings might have been commenced against the respondent. However, removal to El Salvador in this context would not constitute a deprivation of the respondent"s life, liberty or security of person because, not being a refugee, he would have no fear of persecution in El Salvador. Likewise, section 53 would not be triggered because the respondent would not be a Convention refugee under the Act.

[16] Until the decision to vacate is made, the respondent is protected from the threat of removal to El Salvador by section 53. That is, like the doctor in Ratzlaff, supra, he enjoys the rights that flow from his status. In my opinion, the right not to be removed to El Salvador cannot be used to block the vacation application because the possibility of removal flows from the decision to vacate the determination that he is a refugee.

[17] The CRDD also found, at page 5 of its reasons, that in the criminal context, undue delay in itself confers prejudice. It held that the lower courts are moving towards recognizing that civil proceedings are also affected by section 7 of the Charter. While it is certainly the case that section 7 also applies in the non-penal context, it is clear that the mere fact of a delay is not enough to establish a violation of section 7 in civil proceedings.

[18] Finally, the CRDD concluded that the delay affected the respondent"s pre-existing psychological problems. These problems were related to the respondent"s inability to become permanently settled in Canada and to reunite with his family. The CRDD inferred at page 2 of its reasons that the delay prolonged these problems, causing the respondent to suffer hardship and stress such that his section 7 rights were infringed.

[19] In my opinion, the issue of whether the Board erred on this point turns on whether the prejudice suffered by the respondent was of such a nature as to establish a violation of section 7. The implication of Canadian Airlines, supra, and, in the penal context, R. v. L. (W.K.), supra, is that the prejudice claimed must be intrinsic to the fairness of the hearing. The respondent, however, has not argued that he suffered prejudice which might deprive him of his right to a fair hearing. Under R. v. L. (W.K.), it is also significant that there is no limitation period for applications brought under subsection 69.2(2) of the Act. To dismiss the application by reason of the delay alone would be to impose a judicially created limitation period.

[20] I am of the view, therefore, that the CRDD erred in finding that the respondent's section 7 Charter rights were violated.

[21] Finally, with respect to the third issue, whether the CRDD erred in characterizing the delay in this case as an abuse of process, both parties cited Canadian Airlines, supra, as being the relevant case. In that case, it was held that in certain circumstances, unreasonable delay can constitute an abuse of process and that the question is whether or not there has been demonstrated evidence of prejudice of sufficient magnitude to impact on the fairness of the hearing. Since the record does not indicate that the respondent was deprived of his right to a fair hearing by the Minister's delay in bringing the vacation application, it is my opinion that there was no abuse of process in this case.

[22] Consequently, the application for judicial review is allowed, the decision of the CRDD, dated December 17, 1998, dismissing the Minister's application to reconsider and vacate its determination that the respondent is a Convention refugee pursuant to subsection 69.2(2) of the Act is set aside and the matter is referred back for redetermination by a differently constituted panel of the CRDD.

JUDGE

OTTAWA, ONTARIO

January 21, 2000

Date: 20000121

Docket: IMM-231-99

Ottawa, Ontario, this 21st day of January, 2000

Present : The Honourable Mr. Justice Pinard