Khalife v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1145

                                                                                                                                             Date: 20021106

                                                                                                                                 Docket: IMM-5319-02

                                                                                                                  Neutral citation: 2002 FCT 1145

Toronto, Ontario, Wednesday, this 6^th day of November, 2002.

PRESENT:      THE HONOURABLE MR. JUSTICE KELEN

BETWEEN:

                                                       MOHAMAD ABBAS KHALIFE

                                                                                                                                                         Applicant

                                                                              - and -

                                                                THE MINISTER OF

                                                CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Respondent

                                               REASONS FOR ORDER AND ORDER

[1]         This is a motion dated October 28^th, 2002, on behalf of the applicant for an Order prohibiting or staying member La Douceur of the Immigration Division of the Immigration and Refugee Board from continuing an admissibility hearing concerning the applicant, such hearing now scheduled to resume on November 8^th, 2002 at 9:00 a.m. at the Ottawa-Carleton Detention Centre.

[2]         The applicant is a citizen of Lebanon and a green card holder in the United States. He came into Canada in September 2002 and was apprehended by immigration authorities based on an allegation that he was inadmissible for having committed offences in the United States (various types of fraud) that were punishable by indictment.

[3]         The admissibility hearing was commenced and has been adjourned on three occasions. The third adjournment was the result of a motion in which counsel for the applicant submitted the applicant should not be compelled to testify because of outstanding criminal matters in the United States. The member ruled that if he dismissed the motion he would force the applicant to testify and would proceed with the admissibility hearing.

[4]         The applicant seeks an order staying the proceedings. He submits there is a serious issue to be tried, he will suffer irreparable harm if it goes ahead and that the balance of convenience is in his favour.

ANALYSIS

• 1.                    Bias
• (a)                  Applicant's position

[5]         The applicant submits the Board member's decision rejecting the applicant's request to be released on bond, gives rise to a "reasonable apprehension of bias" because it indicated he did not believe the sworn evidence of the applicant given under oath. It is submitted that it would be inappropriate to require the applicant to go through the inquiry where it is apparent at the outset that the adjudicator is biased.

[6]         The respondent submits the applicant cannot raise this argument at this juncture as it has not been raised before the Board. The case law is clear that an affected individual must, where he suspects the decision-maker of bias, request a recusal.

[7]         The respondent has overstated its case. It is not that the applicant cannot raise the argument at this juncture. The Court has the power to hear the argument even though it was not raised before the Board. Rather, the Court can exercise its discretion to refuse relief when an adequate alternative remedy is available to the applicant. This is outlined in Emerson v. Law Society of Upper Canada (1983), 5 D.L.R. (4^th) 294 at p. 310:

In my opinion, therefore, the application is not premature; nor does the failure of the solicitor to raise objections at the hearing or to exhaust his remedies before convocation, preclude judicial review. These are matters that go to the discretion of the court, should it consider exercising it.

The test to be utilized when determining whether the Court should exercise its discretion is outlined in D. Brown & J. Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback, 1998) at topic 3:2110:

Thus, in each context the reviewing court applies the same basic test: is the alternative remedy adequate in all the circumstances to address the applicant's grievance? And as indicated, "adequacy" is determined by reference to considerations such as ensuring justice according to law for the individual applicant, the economic use of judicial resources, the integrity of the administrative scheme, and the comparative costs and delays associated with the statutory remedy and judicial review proceedings respectively.

[8]         When an issue of bias arises in the middle of a hearing, the usual course of action is for the party alleging bias to raise the objection with the Tribunal and then move to have the individual recuse him or herself, see Brown & Evans, supra. at topic 11:6000. The tribunal has the authority to determine the issue, see Grigorenko v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 285. If the motion is unsuccessful, the objecting party may seek judicial review immediately or await the outcome on the merits of the argument.

[9]         In the case at bar, the applicant did not raise the issue of bias with the Board member. The Court should exercise its discretion to not hear the matter because it is premature to do so at this juncture. The matter should have been raised first with the Board member. If the member had recused himself, this Court process would not have been necessary. If he had declined to recuse himself, the applicant could have sought judicial review at that time. To avoid redundant litigation, I will consider the merits of the bias allegation.

[10]       The allegation of bias is based on the comments made by the member in determining whether the applicant should be released while awaiting his inadmissibility hearing. The respondent submits the comments were made in relation to the matter before him and do not indicate a predisposition regarding the admissibility hearing.

[11]       The respondent is correct in stating that actual bias or an apprehension of bias does not exist on the part of an adjudicator merely because the adjudicator sat on a previous matter involving the same applicant, see Pacificador v. Canada (Minister of Citizenship and Immigration), 2001 FCT 426, Ahani v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 252, Arthur v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 94 (C.A.), Nord-Deutsche Versicherungs Gesellschaft v. The Queen, [1968] 1 Ex. C.R. 443, and Brown & Evans, supra at topic 11:330. As Mr. Justice Deanult stated in Ahani at para. 10:

In Nord-Deutsche Versicherungs Gesellschaft, supra, Jackett P. similarly concluded that there can be no apprehension of bias on the part of a judge merely because he has, in the course of his judicial duties, expressed his conclusion as to the proper findings on the evidence before him, having given full consideration to the parties' submissions with regard thereto.

[12]       In Arthur, the Federal Court of Appeal was faced with a similar situation to the case at bar. The adjudicator made a negative credibility finding when he ruled against an individual seeking release from detention and the applicant argued he had formed an overall opinion on credibility that disqualified him from adjudicating at the second hearing. The Court held that an opinion on credibility was not enough to demonstrate bias. At p. 106, Mr. Justice MacGuigan stated:

In my opinion, that argument is not sustainable on the facts. As I see it, as in the Pursley case [Pursley v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 211 (F.C.T.D.)], an absolutely unbiased adjudicator could not honestly avoid the prima facie conclusion that the applicant attempted to enter the United States fraudulently and had made use of false documents to enter Canada. In fact, these facts were admitted by the claimant's counsel at the first hearing, who rather argued that her actions were excusable

The Court then examined the decision and the transcript from the hearing and concluded at p. 106: "I am unable to detect any predisposition by the adjudicator on the applicant's general credibility such as to amount to prejudgment of the result of the second hearing."

[13]       Accordingly, the Board member should not be disqualified merely because he made findings of credibility when ruling on the applicant for release. Rather, the Court must examine his decision (found at p. 114 of the Record) and see if it can detect any predisposition by the member on the applicant's general credibility that amounts to prejudgment of his claim.

[14]       There were two bases for the member's decision. First, he believed the applicant was a flight risk because he had already fled from criminal charges in the United States. This is a situation where "an absolutely unbiased adjudicator could not honestly avoid the prima facie conclusion" that the applicant was a flight risk.

[15]       And second, despite claims the applicant's family had hired a lawyer to fight the charges in the United States, the member did not "think Mohamed is ready to face the justice, as far as I am concerned" (at p. 124). The member found that the applicant's family viewed offering a bond as "just a cost of doing business" (at p. 124) . His conclusion was partially based on the fact the applicant, who had been a student for a number of years, had seven or eight thousand dollars of his own money to post as bail. On this issue, the member stated: "I told Mr. Khalife also that in my point of view, even if it was sworn in at that time he was not telling the truth" (at p. 123).

[16]       These statements do not demonstrate that the member has prejudged the applicant's credibility. He was expressing his conclusions on the evidence before him. The case at bar can be distinguished from those cited by the applicant. The member's conclusions were limited to the issues involved in the hearing on release and did not touch on:

• (iv)              the issues to be determined in the applicant's underlying claim (whether he committed the serious criminal offences in question) as in Budhu v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 54;
• (v)                  the possibility of success of the underlying claim as in Mohammed v. Canada (Minister of Employment and Immigration) (1994), 28 Imm. L.R. (2d) 75; nor

• (vi)              the applicant's general credibility as in Pacificador, supra.
• 2.                    Compelling the applicant to testify

(a)        Applicant's position

[17]       The applicant submits he should not be compelled to testify. Neither the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [R.S.C., 1985, Appendix II, No. 44] nor the Canada Evidence Act R.S.C. 1985, c. C-5 will preclude the use of the evidence adduced at the immigration admissibility hearing at criminal proceedings in United States. Moreover, if the applicant is compelled to testify and he refuses he can be subject to prosecution under the provisions of the IRPA.

[18]       The applicant also submits this case engages his section 7 rights under the Charter. The deprivation of liberty is incarceration in the United States, even though it is outside the country, it can be considered, see Burns and Rafay v. United States, [2001] 1 S.C.R. 283. By being compelled to testify, there is a violation of fundamental justice.

[19]       The respondent submits this application is premature because whether or not the applicant will be compelled to testify is unknown. The preventative function of a declaration must be based on more than the applicant's anticipation of the member's decision.

[20]       As mentioned above, it is within the Court's discretion to determine whether an application for relief in the nature of prohibition is premature. While prematurity is a separate doctrine from adequate alternate remedy, the two are intertwined, see Brown & Evans, supra at topic 3:4100. It would be premature for the Court to decide an issue ahead of a decision from the relevant tribunal, see Ledcor Industries Ltd. v. L.I.U. Local 92, [1999] F.C.J. No. 1909 (C.A.)(QL). As for the declaration, the respondent is correct in stating that the Supreme Court of Canada's decision in [1980] 1 S.C.R. 821">Canada v. Solosky, [1980] 1 S.C.R. 821 governs. Courts will not grant declarations concerning disputes that have yet to arise where there is no useful purpose in granting the declaration.

[21]       It is not yet certain that the applicant will be compelled to testify. There are no provisions in the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") or the Immigration Division Rules, SOR/2002-229 that explicitly compel an individual to testify in an inadmissibility hearing. Nor have courts established that a foreign national appearing in an admissibility hearing is compellable. In Seth v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 348 (C.A.), Mr. Justice Décary, writing for the Court, concluded that an applicant could be compelled to testify in a hearing before the Refugee Division, but was careful to point out at p. 357, n. 13:

I am disposed, for the sake of argument and without reaching a final conclusion on the point, to recognize that a Convention refugee claimant can be equated with a "compellable witness". While not bound to testify personally at his hearing (see s. 29(1) of the Immigration Act), he cannot be successful in his claim unless he meets the burden imposed on him by s. 46(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14] of the Act and tenders sworn documentary evidence in support of his claim respecting his personal history (s. 45(2) [as am. idem] of the Act; s. 18 of the Convention Refugee Determination Division Rules [SOR/89-103]). While he need not make a claim, he will be expelled from Canada if he does not do so and while he is not necessarily detained prior to the hearing, he will be ordered out of Canada if his claim is unsuccessful. To that extent he appears to be in "the control of the superior power of the state" and "cannot walk away", to use the words of McLachlin J. in R. v. Hebert, [[1990] 2 S.C.R. 15],1 at p. 179.

Given Mr. Justice Décary's comments here, it is not clear that a foreign national, alleged to be inadmissible, can be equated with a "compellable witness" under the IRPA.

[22]       This is an open question and the member could decide that the applicant is not compellable or that compelling him to testify violates his rights under the Charter. In essence, the applicant is asking the Court to judicially review a decision that has not yet been made. It would premature for the Court to do so.

[23]       While the underlying issue (whether compelling the applicant to testify violates his Charter rights) may be a serious one, as a decision has not been made by the Board member, it has been brought prematurely and has no chance of success. Moreover, the applicant can simply refuse to testify, and bear the consequences which may be a lesser evil than testifying.

(a)                  Applicant's position

[24]       The applicant submits the inquiry is a disguised extradition. The applicant is open to being removed to Lebanon, but claims the United States Attorney is working hand in hand with the Canadian immigration authorities to use this process as an alternate to extradition.

(b)                 Is this a case of disguised extradition?

[25]       In [1968] S.C.R. 839">Moore v. Canada (Minister of Manpower and Immigration), [1968] S.C.R. 839, the Supreme Court of Canada recognized that deportation could be used as a cover for extradition. The Court stated:

[...] the onus of proving that a deportation order valid on its face is in fact a sham, or not made bona fide, is on the party who alleges it, "however difficult it may be for him to discharge the onus".

[26]       In Halm v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 547 (T.D.), Mr. Justice Rothestein quoted from Shepherd v. Canada (Minister of Employment and Immigration) (1989), 70 O.R. (2d) 765 (C.A.) six principles that apply to cases where disguised extradition is alleged:

1. If the purpose of the exercise is to deport the person because his presence is not conducive to the public good, that is a legitimate exercise of the power of deportation.

2. If the purpose is to surrender the person as a fugitive criminal to a state because it asked for him, that is not a legitimate exercise of the power of deportation.

3. It is open to the courts to inquire whether the pur-pose of the government was lawful or otherwise.

4. The onus is on the party alleging an unlawful exer-cise of power. It is a heavy onus.

5. To succeed, it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the person in question.

6. The adoption of the Charter has not lessened the onus.

[27]       The applicant is a foreign national accused of a serious criminal offence in another country. It is obvious his presence in Canada is "not conducive to the public good". The applicant has not provided the Court with sufficient evidence to show that he has a chance of discharging the heavy onus placed on him. There is no indication that the purpose of the Minister in seeking his deportation is for an improper purpose.

[28]       Further, there is no substance to the applicant's argument that the member's refusal to accept his offer to go voluntarily to Lebanon indicates it is really a disguised extradition. The Immigration Division does not determine where an individual is sent upon removal. Under Part 13, Division 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations") it is the Minister who decides what country an individual shall be removed to after they have been found inadmissible. One of the options open to the Minister is to remove an individual to the country from which they came to Canada under paragraph 241(1)(a) of the Regulations. An individual being removed is stripped of his or her choice of country if they are a fugitive from justice in Canada or another country under paragraph 238(2)(b).

[29]       A similar situation faced the Supreme Court of Canada in [1968] S.C.R. 839">Moore:

In the case at bar, there are good reasons for expelling the appellant as is shown in the reasons of my brother Judson. A person who is unlawfully in Canada cannot exempt himself from liability to have an inquiry directed and to be ordered to be deported by demonstrating his desire to leave Canada voluntarily. The question whether, in such circumstances, deportation proceedings should be initiated is not committed to the Courts.

[30]       Accordingly, there is no indication that this is a case of disguised extradition. There is no serious issue to be tried with respect to disguised extradition.

CONCLUSION

[31]       The applicant has not shown that there is a serious issue to be tried at this time with respect to any of the three issues he has raised. Given the prematurity of this application, I would also conclude he does not face irreparable harm. Accordingly, the applicant is not entitled in law to a stay of the inquiry.

                                                                            ORDER

IT IS HEREBY ORDERED THAT:

This application is dismissed.

                                                                                                                                       "Michael A. Kelen"                        

                                                                                                                                                           JUDGE                          

FEDERAL COURT OF CANADA

Trial Division

Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-5319-02

STYLE OF CAUSE:                           MOHAMAD ABBAS KHALIFE

                                                                                                                                                         Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                                     Respondent

DATE OF HEARING:                         MONDAY, NOVEMBER 4, 2002

PLACE OF HEARING:                       TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                                  KELEN J.

DATED:                                                   WEDNESDAY, NOVEMBER 6, 2002

APPEARANCES BY:                         Mr. Lorne Waldman

                                                                                                                     For the Applicant

                                                                 Ms. Rhonda Marquis

                                                                                                                      For the Respondent

SOLICITORS OF RECORD:           Mr. Lorne Waldman

                                                                 281 Eglinton Ave East

                                                                 Toronto, Ontario

                                                                 M4P 1L3

                                                                 Tel:416-482-6501

                                                                 Fax:416-489-9618

                                                                                                                     For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

                                                                                                                        For the Respondent             

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

Date: 20021106

Docket: IMM-5319-02

BETWEEN:

MOHAMAD ABBAS KHALIFE

                                                                                      Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                  Respondent

REASONS FOR ORDER

AND ORDER