IMM-1133-96
BETWEEN:
NAJINDER
SINGH PARMAR,
Applicant,
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION,
Respondent.
REASONS
FOR ORDER
GIBSON, J.:
These reasons arise out of an
application for judicial review of a decision reached on behalf of the
Respondent, pursuant to subsection 70 (5) of the Immigration Act, that the Respondent is of
the opinion that the Applicant constitutes a danger to the public in Canada.
The decision is dated the 11th of March, 1996 and was communicated to the
Applicant on the 21st of March, 1996.
The application for leave and for
judicial review in this matter indicates that the Applicant also seeks judicial
review of the removal order made against him. The removal order is not
identified with any particularity on the face of the application for leave and
for judicial review. In any event, material filed on behalf of the Applicant
and argument advanced on behalf of the Applicant before me did not address
judicial review of the removal order. Further, and perhaps more importantly,
the Order of this Court granting leave in this matter related only to the
danger opinion.
-
2 -
The factual background may be briefly
summarized as follows. The Applicant is a citizen of India. He was born in
the Punjab on the 30th of May, 1967. He immigrated to Canada as a
dependant of his mother on the 22nd of December, 1982. His mother, two sisters
and two brothers reside in Canada. He has one sister living in India. The
Applicant is married with two children. Since coming to Canada, the Applicant
has returned to India only once. The Applicant's criminal record is limited.
He has one minor property offence conviction and a conviction for failure to
appear. His most recent, and only other, offence resulted in a conviction
under section 272 of the Criminal Code. The relevant portions of
section 272 read as follows:
272 (1) Every person commits an
offence who, in committing a sexual assault,
...
(d) is a party to the offence
with any other person.
(2) Every person who commits an
offence under subsection (1) is guilty of an indictable offence and liable
...
(b) . . . to imprisonment for a
term not exceeding 14 years.
The
Applicant was sentenced to imprisonment for three years.
The
Applicant was ordered deported following his most recent conviction. He
appealed the deportation order made against him to the Immigration Appeal
Division. In his affidavit filed on this judicial review, the Applicant
attests:
On September 26, 1995, at 9:31
a.m., my hearing before the Immigration Appeal Division commenced in
Drumheller. Part way through the morning of the hearing, I was served with a
letter from the Canada Immigration Centre in Calgary that my case was being
reviewed for the possible issuance of a "danger certificate" pursuant
to s. 70 (5) of the Immigration Act...At the time the
correspondence arrived, my counsel and counsel for the Minister of Citizenship
and Immigration agreed that the letter had no effect, both because it was a
notice of possible issuance and because the substantive portion of the
hearing had commenced.
On
the basis of the above understanding between counsel for the Applicant and the
Respondent's representative, no submissions were made by or on behalf of the
Applicant in response to the notice that the Respondent was considering forming
the opinion that the Applicant constitutes a danger to the public in Canada.
The
Applicant's hearing before the Immigration Appeal Division continued on
September 26 and 27, 1995. At the conclusion of the hearing, the Immigration
Appeal Division requested written submissions. Written submissions were
completed on or about January 25, 1996.
On
the 21st of March, 1996, before a decision was issued by the Immigration Appeal
Division, the Applicant was notified that the Respondent was of the opinion
that he constitutes a danger to the public in Canada.
On
the material that was before the Court in this matter, counsel for the
Applicant raised a wide range of issues. It was acknowledged before me that
many of the issues raised were answered by Minister of Citizenship and
Immigration v. Williams and others by Tsang v. The
Minister of Citizenship and Immigration in a manner binding on me. In the result,
only one issue was argued before me, that being whether, on the basis of the
doctrine of "legitimate expectation" or "estoppel by
representation" the Respondent erred in a reviewable manner, by breaching
the duty of fairness owed to the Applicant, in forming the opinion that the
Applicant constitutes a danger to the public in Canada.
Counsel
for the Applicant urged that, by virtue of the agreement between counsel and
the Respondent's representative before the Immigration Appeal Division
concerning the effect, or lack of effect, of notice of possible issuance of a
danger to the public opinion, and by virtue of the Applicant's reliance on that
agreement to his detriment, the doctrines of legitimate expectation and estoppel
by representation apply to preclude the Respondent from issuing the danger
opinion.
In
Gonsalves v. Canada (Minister of Citizenship and
Immigration) Mr. Justice Muldoon wrote:
The Supreme Court of Canada in
Old St. Boniface Residents Association Inc. v. Winnipeg (City),
[1990] 3 S.C.R. 1170 at p. 1204, stated that the doctrine of legitimate
expectation created only procedural, not substantive rights. This was affirmed
by Supreme Court in Ref. Re Canada Assistance Plan [1991] 2
S.C.R. 252 and was applied by the Federal Court of Appeal in Lidder v.
Canada (M.E.I.), [1992] 2 F.C. 621 (F.C.A.). This usually
creates a right to make representations or be consulted. It does not give a
substantive right which would in effect compel the appeal division to take
jurisdiction.
Here, the right to a determination
is substantive. The facts here also show that if there were any procedural
rights to be had, they would have been in the nature of providing the
opportunity for a hearing or to make submissions. The Applicant was asked by
the Minister to make submissions and did so; therefore, any procedural
requirements were satisfied. The determination was a finding that Parliament,
by enacting subsection 70 (5), had terminated the IAD's jurisdiction to deal
with Ms. Gonsalves' appeal.
Estoppel, while not raised by the
applicant, usually mirrors legitimate expectation and is also not available to
Ms. Gonsalves in this case. According to the Federal Court of Appeal in Lidder,
supra, there must be a representation of fact made which a
reasonable person would have assumed was intended to be acted upon; that person
must have acted on it and, as a consequence of such reliance, the person must
have suffered a detriment. In this case, the February 2, 1996 telephone call
on behalf of the registrar to the applicant's counsel which stated that the
[sic] determination would be made in the matter is not enough to create an
estoppel.
While
the facts of this matter are somewhat different, I am satisfied that the
reasoning of Mr. Justice Muldoon is determinative. The doctrine of legitimate
expectation cannot create substantive rights. Counsel for the Applicant urges
that the conduct of the Respondent's representative before the Immigration
Appeal Division on September 26, 1995 gave rise to a substantive right in favor
of the Applicant that being to preclude the issuance of a danger opinion
against the Applicant. On the facts of this matter, the question at issue was
not a procedural right, such as, to make representations against the issuance
of a danger opinion. The Applicant and his counsel relied on the position of
the Respondent's representative before the Immigration Appeal Division in
determining not to make representations. That was their choice, but in making that
choice they simply could not rely on the position of the Respondent's
representative to protect them from the results of that choice through the
creation of a substantive right, that is, a right not to have a danger opinion
issue.
Here,
estoppel was raised by the Applicant. As stated by Justice Muldoon, it
"...usually mirrors legitimate expectation...". Once again as in Gonsalves,
I conclude that on the facts before me, estoppel is not available to the
Applicant. At least two of the factors required to give rise to estoppel by
representation, as enunciated in Lidder, are, I conclude,
missing. On the evidence before me, the representative of the Respondent
before the Immigration Appeal Division made no representation of fact and, even
if he or she did, it was not a representation of fact that a reasonable person
would assume was intended to be acted upon. The conclusion that the letter
from the Respondent to the Applicant, received at the hearing before the
Immigration Appeal Division on September 26, 1995 to the effect that the
Respondent was considering the issuance of a danger opinion against the
Applicant "...had no effect, both because it was a notice of possible
issuance and because the hearing [before the Immigration Appeal Division] had
commenced" was not a representation of fact, but rather a conclusion of
law. That the Applicant would act on it to his detriment, when he had his own
counsel, and when he and his counsel could have protected their position in any
event by making submissions to the Respondent, was not something that, in my
opinion, a reasonable person would assume the Applicant would do.
In
the result then, neither the doctrine of legitimate expectation nor that of
estoppel by representation applies in a manner that leads me to conclude that
the Respondent breached the duty of fairness owed by her to the Applicant.
Thus, this application for judicial review will be dismissed.
At
the end of the hearing of this matter, I reserved my decision and undertook to
distribute draft reasons and to allow time for counsel to provide written
submissions on certification of a question or question.
Counsel
for the Applicant submitted three questions for certification in the following
terms:
1.Does
a representation by an officer of the Ministry, prior to an appeal to the
Immigration Appeal Division being concluded, that a Notice of Possible Issuance
of a Danger Certificate is of no effect, create a procedural right and
legitimate expectation that a danger certificate proceeding will not continue
without reasonable prior notice to the person concerned?
2.Is
the representation by an officer of the Ministry, that a Notice of Possible
Issuance served under the Immigration Act is of no effect, a
representation which could give rise to estoppel?
3.In
the context of estoppel, should the Court have regard for the subsequent
conduct of the promiser in assessing the reasonableness of the promisee's
reliance?
No
argument to support certification was provided. No submissions were received
from counsel for the Respondent.
To
warrant certification, subsection 83(1) of the Immigration Act provides
that the question or questions must be both serious and of general importance.
Further, they must be determinative on an appeal. I am satisfied that the questions posed
are serious and would be determinative on an appeal in this matter. I am not
satisfied that they are of general importance. While written in very general
terms, the answers to the proposed questions would, on the facts of this matter,
be governed by the particular facts relating to the source, nature and
circumstances of the representations on which the Applicant relied and the
reasonableness of the reliance. The law relating to the doctrines of
legitimate expectation and estoppel by representation is, I am satisfied, well
settled. It is only the application of that law to the particular facts of
this case that is here at issue. The result in this matter turns on its unique
facts and any guidance derived from an appeal of may decision would be limited
to matters with very similar facts. For the foregoing reasons, no question
will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
June 26, 1997
Email this Content