Docket: IMM-5387-13
Citation:
2015 FC 885
Toronto, Ontario, July 20, 2015
PRESENT: The
Honourable Mr. Justice Diner
|
BETWEEN:
|
|
SELVARAJAH SRIKUMAR KANAGARATNAM
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
Respondents
|
JUDGMENT AND REASONS
I.
OVERVIEW
[1]
This is an application for a stay of proceedings
of the determination of the Applicant’s Pre-Removal Risk Assessment [PRRA]
application by the Minister’s Delegate [Delegate] pursuant to subparagraph
113(d)(ii) of the Immigration and Refugee Protection Act, (SC 2001, c 27)
[IRPA, the Act]. His earlier refugee claim was rejected on the basis of Article 1F
of the Convention because of links to a terrorist group, pursuant to section172
of the Immigration and Refugee Protection Regulations (SOR/2002-227) [Regulations].
[2]
The Applicant, a citizen of Sri Lanka of Tamil
ethnicity, is inadmissible to Canada under section 34(1)(f) of IRPA, due
to his membership in the Liberal Tigers of Tamil Eelam [LTTE]. He was
consequently deemed ineligible to apply for permanent residence, and issued a deportation
order to leave Canada.
A.
The Applicant’s History with the LTTE
[3]
Although the parties agree that the Applicant
was a member of the LTTE, they do not agree as to the role he played.
[4]
The Applicant argues that he never held a
position of military authority or command responsibility. Rather, he contends
that he occupied limited roles of (i) an LTTE spokesperson; (ii) an aid to
Kittu, one of the LTTE’s military leaders; and (iii) a Jaffna hospital
representative. In other words, while he was a highly visible member of the
LTTE, he was not an influential one; he was high-profile, but not high ranking.
[5]
The Applicant also asserts that during his
tenure, the LTTE was a de facto government of the northern Jaffna
Peninsula in Sri Lanka, not banned in any country, and openly supported by the
Indian Government.
[6]
The Applicant was expelled from the LTTE in 1990,
at which point he ultimately fled to Canada due to a fear of persecution from
the Sri Lankan authorities. While the Applicant underlines that he was only a
member of the LTTE and various immigration decision makers accepted that he was
never specifically engaged in any kind of activity that was contrary to
international law, the Respondents take a very different view of the facts.
[7]
The Respondents assert the Applicant was a
high-ranking official in the LTTE, as several sources refer to the Applicant as
a ‘leader’ or a ‘commander’ in the organization. Sources also describe the
Applicant as being the Deputy, or second-in-command, to Commander Kittu, a
military leader of the LTTE, who was held responsible for the Anuradhapura
massacre in 1985, as well as various other atrocities in Sri Lanka.
[8]
The Respondents further assert that the
Applicant’s activities extended beyond merely being an administrative
representative. He instead acted as spokesperson, was often described as being
armed, and is alleged to have been involved in the Anuradhapura massacre. In
short, he was profiled as being a part of the LTTE leadership in a number of
pieces of literature.
[9]
The Respondents contend that the Applicant
continued to hold a leadership position in the LTTE until at least 1987,
playing both a leadership role in negotiations and the LLTE’s publicity and
propaganda war. The Respondents assert that during the period in which the
Applicant participated in leadership functions, the LTTE committed multiple
acts of terrorism and the Applicant made no effort to disassociate himself from
the organization.
B.
The Applicant’s History in Canada
[10]
After the Applicant arrived in Canada in 1990,
he claimed refugee protection. The Board found that he was an active member of
the LTTE, and found there were reasonable grounds to believe that the LTTE
engaged in terrorism during the time that he was a member. The Applicant was therefore
found inadmissible to Canada, and his claim to refugee protection was rejected
on the basis of Article 1F of the UNHCR 1951 Convention Relating to the
Status of Refugees [Convention] due to his links to a terrorist group.
[11]
The Applicant applied for a PRRA in 2002, which
if positively rendered, would stay his removal from Canada pursuant to section
114(1)(b) of the Act. Section 112(3) of the IRPA prohibits conferring
refugee protection on certain categories of persons, including those like the
Applicant, whose claim to refugee protection was rejected on the basis of
Article 1F of the Convention, because of links to a terrorist group. For these
individuals, a distinct process for a PRRA is undertaken, pursuant to section 113(d)(ii)
of the Act. For ease of reference, I will summarize this “restricted” PRRA application,
which substantially differs in process and complexity from the “normal” PRRA application.
[12]
The restricted PRRA comprises three distinct
components. First, a Risk Assessment is undertaken to determine whether the
Applicant would face a risk to his life, or risk cruel or unusual treatment or
punishment should he return home ─ in this case, to Sri Lanka. This is
the Stage 1 analysis.
[13]
Second, an analysis of the nature and severity
of the subject’s previous actions and the danger he poses to Canada or Canadians
is conducted. This second component is known as a Restriction Assessment, or Stage
2.
[14]
Stages 1 and 2 are pursuant to section 113(d) of
the Act and section 172(2) of the Regulations. A Stage 3 final decision is made
by balancing the Stage 1 and 2 assessments, performed by the Delegate, pursuant
to section 172(1) of the Regulations.
[15]
Prior to the PRRA application being allowed or
refused by the Delegate, the applicant is provided an opportunity to make
submissions to the Delegate regarding the contents of the Stage 1 (Risk) and Stage
2 (Restriction) Assessments.
[16]
On December 3, 2002, a PRRA Officer conducted a
Stage 1 Assessment, finding the Applicant to be a person in need of protection,
in accordance with section 97(1)(b) of the Act, due to a risk to his life or
cruel and unusual treatment or punishment that would ensue upon his removal to
Sri Lanka (Applicant’s Record [AR], p. 242).
[17]
This Risk Assessment was updated about eleven
years later on February 12, 2013, by a Citizenship and Immigration Canada [CIC]
Senior Analyst [CIC Analyst]. This second Risk Assessment [Reassessment] reversed
the findings of the 2002 Risk Assessment by concluding that “the situation in Sri Lanka has drastically changed”
and “the absence of a category which would encompass
Mr. Kanagaratnam’s profile is an indicator that individuals claiming to be at risk
to the hands of the LTTE do not constitute a group that is currently at risk in
Sri Lanka.” The CIC Analyst that conducted the Reassessment was not a
PRRA officer.
[18]
On May 10, 2013, a Stage 2 Restriction
Assessment was completed by an Analyst at the Canada Border Services Agency
[CBSA], who concluded that the Applicant should not be allowed to remain in
Canada. The following paragraph from the Risk Assessment reveals many of the
Analyst’s concerns (AR, p. 222):
From the moment he arrived in Canada, Mr. Kanagaratnam
has not been forthright regarding his role in the LTTE. He also became of
interest to Canadian authorities shortly after his arrival and it was clearly
in his best interest to maintain a clean record and have no involvement with
the organization while in Canada, especially since he was facing removal.
Despite apparently not having been involved with the LTTE since his arrival in
Canada, Mr. Kanagaratnam cannot remove his past activities on behalf of the
LTTE which reach a serious level of nature and severity.
[19]
It has been over 13 years since the Applicant
submitted his restricted PRRA, and while the Stage 1 and Stage 2 Assessments have
been completed, the Delegate has yet to render the Stage 3 decision. Whether
the Delegate proceeds with Stage 3 hangs in the balance of this judicial
review, because Justice Manson stayed Stage 3 of the PRRA pending this judicial
review.
[20]
After significant deliberation on my part, including
considering a voluminous record and pleadings, as well as two rounds of various
post–hearing submissions from both parties, I have decided to order the
Delegate to proceed in rendering the Stage 3 decision.
II.
ISSUES AND ANALYSIS
[21]
The Applicant raises the following three issues:
A.
Have these proceedings resulted in an abuse of
process?
B.
Was the CIC Analyst entitled to conduct a
Reassessment? Did it result in a violation of procedural fairness?
C.
Is the Delegate sufficiently impartial and
independent to adjudicate the restricted PRRA?
[22]
The three issues of abuse of process, fairness
of the Reassessment, and the Delegate’s independence and impartiality, all turn
on procedural fairness and are therefore reviewable on a correctness standard.
There is no deference owed to the decision-maker under correctness, and the
Court will undertake its own analysis of the issues (Mission Institute v Khela,
2014 SCC 24, at para 79; Dunsmuir v New Brunswick, 2008 SCC 9, at
para 50; Pavicevic v Canada (Attorney General), 2013 FC 997 at para 29).
[23]
The parties’ position on each of the three
issues, along with the legal analysis, follows. As a preliminary matter it
should be noted that my approach to this decision has been informed by two
realities.
[24]
First, the underlying allegations are serious,
including that the Applicant:
i.
received military training from the LTTE in 1983
and 1984;
ii.
had duties for the LTTE Intelligence Services;
iii.
was the LTTE’s spokesperson, and was regularly
quoted, reflecting the LTTE’s dedication to the continued armed struggle;
iv.
is portrayed in media articles in a position of
authority in the LTTE;
v.
engaged in senior-level negotiations on behalf
of the LTTE;
vi.
is referred to as a “leader” or a “commander” in
the LTTE, second in command to Kittu, a man who was responsible for many war
crimes in the 1980s;
vii.
is alleged to have been involved in the
Anuradhapura massacre in a book which was published before the Applicant
arrived in Canada.
[25]
Even in criminal law, there appears to be no
statute of limitations on war crimes (Hessbruegge, Jan Arno. “Justice Delayed,
Not Denied: Statutory Limitations and Human Rights Crimes” (2011-2012) 43 Geo
J. Int'l L 335; R. v. Finta, [1994] 1 SC. 701 at para 113). This underscores
the graveness of such allegations and absent exceptional circumstances,
immigration proceedings dealing with war crimes should be provided generous leeway
to proceed.
[26]
I believe that both the legislated and fair approach
─ namely one that balances the rights of the Applicant with the interests
and security of Canadians ─ must now conclude. The Delegate will consider
all the evidence in coming to a conclusion, including the risk Reassessment. The
Applicant will have the right to challenge the final decision of the Delegate
if it does not to in his favour, (and of course, he denies all war crimes
allegations including any participation in atrocities or leadership in the LTTE).
[27]
Second, both parties’ arguments have merit
regarding delay – the Applicant in asserting that the adjudication has been
unduly long, and the Respondents in citing various reasons for this, including
not only administrative delays (such as departmental reorganizations and
limited resources), but also intervening procedural steps, namely several immigration
proceedings filed by the Applicant. The Respondents awaited outcomes in these
applications before resuming this restricted PRRA process. Specifically, Mr.
Kanagaratnam initiated applications for permanent residence, humanitarian and
compassionate consideration, and Ministerial Relief, all of which were actively
being adjudicated during the course of this restricted PRRA, and for all of which
the Respondents state they sought outcomes before deciding the PRRA application.
[28]
Given that there is merit to what both parties
plead, I feel that justice would best be served by concluding the process that
was initiated, after all, by the Applicant, so that he might secure the right
to remain living in Canada.
A.
Have these
proceedings resulted in an abuse of process?
[29]
The Applicant submits that the 11 year delay
between his Stage 1 Risk Assessment in 2002, and the Stage 2 Restriction
Assessment in 2013, amounts to an abuse of process. The Applicant argues that
this substantial delay has impaired his ability to answer the complaint against
him, and is “so oppressive as to taint the proceedings”
(Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at
para 121 [Blencoe]).
[30]
Further, the Applicant asserts that a stay would
not be premature because the Court should grant one where there is an ongoing
abuse of process that would be perpetuated by proceeding further (John Doe v
Canada (Minister of Citizenship and Immigration), 2007 FC 327 [John Doe]; Tursunbayev
v Minister of Public Safety and Emergency Preparedness, 2013 FC 1198, at
paras 5-6 [Tursunbayev]).
[31]
The Applicant also alleges that some of the Respondents’
allegations against him mentioned in the Restriction Assessment are completely
new: they were not brought up by the Respondents in previous admissibility
proceedings, constitutional challenges, or his refugee claim. These new
allegations are based upon events which took place some 30 years ago, and the
length of the delay is not connected to the time required to investigate or
adjudicate the matter (Canada (Minister of Citizenship and Immigration) v
Parekh, 2010 FC 692 at para 56) [Parekh]. The delay has prejudiced
the Applicant’s ability to respond because many potential witnesses are no
longer available to testify (Beltran v Canada (Minister of Citizenship and
Immigration), 2011 FC 516 at paras 51-53) [Beltran]. Furthermore, this
delay was attributable to the inaction of the Minister, and had violated his
section 7 Charter Rights (Singh v Minister of Employment and Immigration), [1985] 1 S.C.R. 177 at 57).
[32]
The Respondents disagree with the above
arguments, contending that the facts in this case do not meet the high abuse of
process threshold. The processing time was not abusively lengthy (Blencoe, above
at para 122; R v Babos, 2014 SCC 16 at para 32 [Babos]).
[33]
Specifically, the Respondents submit that the
Applicant has not been prejudiced by the passage of time, because this is the
first instance in which the nature and severity of the Applicant’s acts as a
member of the LTTE are at issue: he should have been aware that he would be
required to defend himself against such allegations from the outset, having been
a high-level negotiator and chief of staff to Kittu, who the Applicant concedes
was involved in war crimes during the time he was his aid. The Respondents further
assert that the Applicant was previously questioned about the Anuradhapura
massacre, and to bar the consideration of these allegations would neither be
unfair to the Applicant nor in the interests of justice. In any event, it is
unlikely the Applicant could have obtained further evidence, as the people who
would provide this evidence, former LTTE members, are affiliated with the same
organization the Applicant fears.
[34]
The Respondents further submit that the risk
assessment completed in 2002 found the Applicant was at risk from the LTTE.
Since he no longer fears being at risk from the LTTE, which has been
dismantled, and rather fears a risk only from the Sri Lankan Army, the
underpinning of the earlier risk assessment cannot be supported.
[35]
For all the reasons summarized above, the
Respondents contend this is not one of “the clearest
cases” where abuse of process should be found (Canada v Tobiass, [1997] 3 S.C.R. 391 at
para 90; R v Regan, 2002 SCC 12 at para 53 [Regan]). This case
simply does not meet the high threshold in the abuse of process test set out in
Babos, as stays should only be granted as a remedy of last resort (United
States v Talashkova, 2014 ONCA 74 at para 6 [Talashkova]).
[36]
The Respondents further assert that the
application is premature, given that if the Applicant receives a positive Stage
3 decision from the Delegate, this stay application process will have been a
waste of resources. If, on the other hand, the Stage 3 decision is negative, the
Applicant is entitled to seek a judicial review of that decision.
[37]
The Respondents emphasized that there are very
few exceptions to the principle of non-interference with ongoing administrative
processes (Canada (Border Services Agency) v CB Powell Limited, 2010 FCA
61 at paras 30-33 [CB Powell]; Alberta (Information and Privacy Commissioner) v Alberta
Teachers’ Association, 2011 SCC 61). If the Court allows this application
on the basis of the 2002 Risk Assessment, the Court would have, in effect, converted
a section 112(3) restricted PRRA into a section 112(1) “regular” PRRA (Rajan
v Canada (Minister of Employment and Immigration), [1994] FCJ No 1618 at
paras 5-6).
[38]
I agree with the Respondents on this first
issue: the restricted PRRA process, while undoubtedly protracted, does not
amount to an abuse of process.
[39]
The remedy sought by the Applicant in his
original submissions, a stay of proceedings, would be the equivalent of seeking
a conversion of the subsection 112(3) restricted PRRA into a regular section
112(1) PRRA, because the PRRA Officer’s 2002 Risk Assessment will have
effectively been the determinative outcome. This would be contrary to the
operation of IRPA, given that the Applicant was found inadmissible due
to his membership in the LTTE. Under subsection 112(3) of IRPA, when an
applicant is deemed inadmissible, the Delegate must undertake a Stage 3
analysis to complete the restricted PRRA process set out by Parliament. The
Court, absent the clearest of cases and need for a remedy of last resort,
cannot ignore the operative statute by ordering a stay of proceedings, as that
would lead to an order that undermines the process prescribed by the
legislation. For all its delays to date, that process appears to be nearly
concluded.
[40]
I recognize the importance of the proper
adjudication of this matter for both the public and the Applicant – that is, to
balance the Applicant's alleged involvement with the LTTE and any implications
to Canadian national security, with the potential harm he faces upon a return
to Sri Lanka. Section 112(3) establishes no time frame for which PRRA
applications must be processed. The Court at this juncture should not seek to
short circuit the procedure Parliament developed to properly conduct this
analysis.
[41]
The Applicant points to Jaballah v Canada
(Minister of Citizenship and Immigration), 2003 FCT 640 (upheld by the
Federal Court of Appeal at 2004 FCA 257), where a delay in determining the
applicant’s application for protection was deemed to be abusive (para 29 of the
FC decision). Jaballah can be distinguished, however, because the
applicant was in detention during the entire course of the proceedings, which
amounted to almost two years, with grave consequences to his liberty and other
fundamental freedoms. In the present case, the Applicant has had his liberty
throughout, and has continued on with an active professional and personal life
during the relevant period. By all accounts, in the evidence presented to the
Court, he has been a model to his friends and family, valued employee, and
selfless participant in community service. These redeeming qualities, however,
do not deviate or change the process that must be undertaken to render a
decision under sections 112(3) and 113 of the IRPA.
[42]
The jurisprudence consistently and uniformly
recognizes that “a stay is a remedy of last resort
which will only be employed to rectify an abuse of process in the clearest of
cases” (Talashkova at para 6; Regan at para 53; Charkaoui
v Canada (Citizenship and Immigration), 2008 SCC 38 at para 76 [Charkaoui];
Re Mahjoub, 2013 FC 1095 at paras 36-45 [Mahjoub]).
The test used to determine whether a stay of proceedings is warranted in
situations of abuse of process has been clarified in the recent case of Babos,
at para 32:
1) There must be prejudice to the accused's
right to a fair trial or the integrity of the justice system that "will be
manifested, perpetuated or aggravated through the conduct of the trial, or by
its outcome" (Regan, at para. 54);
2) There must be no alternative remedy
capable of redressing the prejudice; and
3) Where there is still uncertainty over
whether a stay is warranted after steps 1) and 2), the court is required to
balance the interests in favour of granting a stay, such as denouncing
misconduct and preserving the integrity of the justice system, against
"the interest that society has in having a final decision on the
merits" (ibid., at para. 57).
[43]
The interest of society to have the Delegate
make the Stage 3 decision outweighs the prejudice suffered by the Applicant by
reason of the delay (Mahjoub at paras 508-510). Addressing procedures
relating to section 34(1) of IRPA, a provision that deals with terrorism
and related subjects, this Court recently stated “such serious
matters tend to weigh against deciding the matter procedurally rather than
addressing the issues on the merits” (El Werfalli v MPSEP, 2013
FC 612, at paras 42-48;. see also Ratnasingam v MPSEP, 2007 FC
1096, at para 32).
[44]
I find the facts in this case distinguishable
from the jurisprudence relied on by the Applicant for his abuse of process
arguments. The Applicant argues that his situation is similar to Parekh
and Beltran where the proceedings were stayed because of abuse of
process.
[45]
The court found that Parekh was not a
complex case (Parekh, at paras 32-35). This case in question today,
however, spans many years and involves several applications and decisions, as
well as hundreds of pages of documentary evidence. It is unquestionably
complex. This case also differs from Beltran, where the applicant
believed his case was closed, as national security issues were not questioned
in the 20 years after his entry into Canada. All delays in his permanent
residency application arose only due to criminality arising from a Canadian
conviction for sexual assault, for which he ultimately obtained a pardon. The Court
in Beltran found that the applicant could not have foreseen that the
respondent would bring up national security information it had 20 years prior,
and with which it had done nothing. In the present case, the Applicant knew
that the process was ongoing, even if significantly delayed, and that there
were still steps to be decided.
[46]
I would also point out factual distinctions
which lie with the allegations against Mr. Beltran. In that case, the Court
noted that Mr. Beltran’s involvement with the group was alleged to be very
limited, namely distributing pamphlets and attending demonstrations over a six
week period (Beltran, at paras 51-52). The Court also questioned the
group’s classification as a terrorist group. Those are not the facts and/or
allegations in the present matter.
[47]
The Applicant also refers to John Doe and
Tursunbayev, where the Court granted interim stays of proceedings based
on abuse of process allegations. Although the Court in those cases found that
the abuse of process was a serious enough issue to grant an interim stay of
proceedings, it also pointed out that the merits of the arguments would be
examined at the full motion hearing (John Doe, above at paras 10, 17; Tursunbayev,
above at paras 3, 7, 9). Here, the stay would end the restricted PRRA
process.
[48]
Additionally, nothing points to the delay in
this case being intentional or in bad faith, a significant consideration for a
Court in determining whether there was abuse of process (Mahjoub, at para
54). The evidence before me states that the processing on the file was not
stalled, but rather intermittently active during the 11 year period (Respondents’
Record, Affidavit of Anne-Marie Charbonneau, paras 12-43). The file was moved around different government departments and
documents also had to be requested when they were missing, which was
lamentable, but due to human error rather than any detectable bad faith. The
Applicant also had several other applications ongoing during the period in
question.
[49]
While no doubt causing significant frustration
to the Applicant, the delay in this case has been influenced by its factual
complexity (including the presence of classified information), the involvement
of agencies and the presence of departmental reorganizations during its
adjudication. In addition, other applications were being considered for with
the Respondents state they wanted decisions before moving towards finalization
of the PRRA application.
[50]
A recent case from the Supreme Court of Canada, Hinse
v Canada (Attorney General), 2015 SCC 35 [Hinse], reinforces the
high threshold required to establish abuse of process. In reasons rendered by
Justices Wagner and Gascon, the Supreme Court upheld a determination of the
Quebec Court of Appeal that the Attorney General of Canada’s conduct in an
action related to the Minister’s conduct in the exercise of his power of mercy
did not amount to an abuse of process:
[180] Like the Court of Appeal, however,
we can see no abuse of process in the AGC’s conduct. It is true that the
position taken by Dr. Chamberland, a psychiatric expert, that the effects of
Mr. Hinse’s incarceration had been “beneficial” was unfortunate; the AGC should
have disassociated himself from it. But this on its own does not amount to an
abuse of process. The AGC did not multiply proceedings in an unreasonable
manner or call unnecessary witnesses. He did not use procedural mechanisms
excessively or unreasonably, nor did he act in bad faith or recklessly.
The law on the federal Crown’s liability for a fault committed by the Minister
in exercising his or her power of mercy was far from clear at the time of the
dispute. It was reasonable and appropriate for the AGC to contest the
appellant’s action and raise the defence that he did. The trial judge committed
a palpable and overriding error in finding that there had been an abuse of
process in the context of this case. The appellant was not entitled to the
extrajudicial fees that were awarded. In my view, when view holistically, the
delay in this case does not reach the high threshold required to established an
abuse of process. [Emphasis added]
[51]
Recognizing that this finding was in regard to
conduct at a trial and not for conduct during the course of an administrative
decision, I have not seen similar indicia here to find abuse of process: I see
no an unreasonable duplication of proceedings, bad faith or serious recklessness.
Indeed, delay in and of itself does not necessarily equate to bad faith or serious
recklessness (Hinse at para 114).
[52]
In light of my conclusion on abuse of process,
this judicial review application is premature. The Stage 3 decision of the
Delegate has yet to be rendered, though this should be done as soon as
practicable.
[53]
There are very few exceptions to the general
principle of judicial non-interference with ongoing administrative processes,
as is seen in CB Powell (see also, Halifax (Regional Municipality) v
Nova Scotia (Human Rights Commission), 2012 SCC 10 at paras 35-36, 51). In
that case, Justice Stratas undertook a comprehensive review of the relevant
jurisprudence and concluded:
30 The normal rule is that parties
can proceed to the court system only after all adequate remedial recourses in
the administrative process have been exhausted. The importance of this rule in
Canadian administrative law is well-demonstrated by the large number of
decisions of the Supreme Court of Canada on point: Harelkin v. University of
Regina, [1979] 2 S.C.R. 561 (S.C.C.); Canadian Pacific Ltd. v. Matsqui
Indian Band, [1995] 1 S.C.R. 3 (S.C.C.); Weber v. Ontario Hydro,
[1995] 2 S.C.R. 929 (S.C.C.); R. v. Consolidated Maybrun Mines Ltd.,
[1998] 1 S.C.R. 706 (S.C.C.) at paragraphs 38-43; Regina Police Assn. v.
Regina (City) Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14
(S.C.C.) at paragraphs 31 and 34; Danyluk v. Ainsworth Technologies Inc.,
[2001] 2 S.C.R. 460, 2001 SCC 44 (S.C.C.) at paragraph 14-15, 58 and 74; Goudie
v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14 (S.C.C.); Vaughan v.
R., [2005] 1 S.C.R. 146, 2005 SCC 11 (S.C.C.) at paragraphs 1-2; Okwuobi
c. Lester B. Pearson (Commission scolaire), [2005] 1 S.C.R. 257, 2005 SCC
16 (S.C.C.) at paragraphs 38-55; Canada (House of Commons) v. Vaid,
[2005] 1 S.C.R. 667, 2005 SCC 30 (S.C.C.) at paragraph 96.
31 Administrative law judgments and
textbooks describe this rule in many ways: the doctrine of exhaustion, the
doctrine of adequate alternative remedies, the doctrine against fragmentation
or bifurcation of administrative proceedings, the rule against interlocutory
judicial reviews and the objection against premature judicial reviews. All of
these express the same concept: absent exceptional circumstances, parties
cannot proceed to the court system until the administrative process has run its
course. This means that, absent exceptional circumstances, those who are
dissatisfied with some matter arising in the ongoing administrative process
must pursue all effective remedies that are available within that process; only
when the administrative process has finished or when the administrative process
affords no effective remedy can they proceed to court. Put another way, absent
exceptional circumstances, courts should not interfere with ongoing
administrative processes until after they are completed, or until the
available, effective remedies are exhausted.
32 This prevents fragmentation of the
administrative process and piecemeal court proceedings, eliminates the large
costs and delays associated with premature forays to court and avoids the waste
associated with hearing an interlocutory judicial review when the applicant for
judicial review may succeed at the end of the administrative process anyway:
see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater
Moncton International Airport Authority v. P.S.A.C., 2008 FCA 68 (F.C.A.)
at paragraph 1; Ontario College of Art v. Ontario (Human Rights Commission)
(1992), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the
administrative process will a reviewing court have all of the administrative
decision-maker's findings; these findings may be suffused with expertise,
legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated
Maybrun, supra at paragraph 43; Delmas v. Vancouver Stock Exchange
(1994), 119 D.L.R. (4th) 136 (B.C. S.C.) , aff'd (1995), 130 D.L.R. (4th) 461
(B.C. C.A.); Jafine v. College of Veterinarians (Ontario) (1991), 5 O.R.
(3d) 439 (Ont. Gen. Div.). Finally, this approach is consistent with and
supports the concept of judicial respect for administrative decision-makers
who, like judges, have decision-making responsibilities to discharge: New
Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.)
at paragraph 48.
[54]
All administrative options have not been
exhausted in this matter given that it is awaiting the Delegate’s Stage 3 decision.
That outcome is not certain: the Delegate could render a positive decision,
given the length of time that the Applicant has spent in Canada without
incident, and the ample evidence of his integration in the community, as
discussed above. If that is the decision, further judicial review may be
unnecessary.
[55]
In Charkaoui, the Supreme Court
held that it would be premature to grant the remedy of a stay before a final
decision on the reasonableness of the certificate, as a Federal Court judge was
better placed to make that decision. (Charkaoui at para. 77; see also Khalife
v Minister of Citizenship and Immigration, 2002 FCT 1145 at para
22).
[56]
An analogy can be drawn to this case – the
Delegate should be allowed to make a final decision before the Court
intervenes. Having said that, because time can work against the individual in
these matters, the Delegate should make the decision without further delay.
[57]
My conclusion on this issue is that the PRRA
process started under subsection 112(3) should continue. If the Applicant is
not satisfied with the Delegate's decision, he will be able to apply for
judicial review at that point.
B.
Was the CIC
Analyst entitled to conduct a Reassessment? Did it result in a violation of
procedural fairness?
[58]
The Applicant submits that only a PRRA officer
can conduct a Risk Assessment or Reassessment, and that the Analyst at the Case
Management Branch did not have jurisdiction to conduct its Reassessment. The
expertise of PRRA officers in determining risk has been confirmed by the
Federal Court in numerous cases (Raza v Canada (Minister of Citizenship and
Immigration), 2006 FC 1385 at para 10; Kim v Canada (Minister of
Citizenship and Immigration), 2005 FC 437 at para 16). If the Minister
believes there has been a change in circumstances, the determination must be
sent back to a new PRRA officer pursuant to section 114(2).
[59]
The Applicant acknowledges that in Placide v
Minister of Citizenship and Immigration, 2009 FC 1056 [Placide], Justice Shore
indicated that a Delegate is not bound by a PRRA officer's Risk Assessment.
However, he argues Placide did not have the benefit of the arguments
regarding independence and impartiality made before this Court. Accordingly, it
should not be relied upon. The Applicant also argues that under sections
114(2) of IRPA and 173 of Regulations, any new Risk Assessment should
have been sent back to a PRRA officer.
[60]
The Respondents counter that it is the Delegate's
responsibility to assess risk. There is nothing preventing a Reassessment because
neither IRPA binds the Delegate to the PRRA officer’s Risk Assessment, nor
does Citizenship and Immigration Canada's Instrument of Designation and
Delegation (CIC Operation Manual IL 3), and/or the relevant jurisprudence (Placide,
above, at para 65; Delgado v Minister of Citizenship and Immigration, 2011
FC 1131 at para 7 [Delgado]; Muhammad v Minister of Citizenship and Immigration, 2012 FC
1483 at para 42 [Muhammad 2012]; Muhammad v Minister of Citizenship and Immigration, 2014 FC
448 at paras 64-65, 71 [Muhammad 2014]).
[61]
First, let me observe that the section 114
argument was addressed in Placide, where the Court concluded that “the change of circumstances referred to in subsection 114(2)
concern changes that occurred after a final decision by the Delegate under
subsection 112(3) of IRPA” (Placide at paragraph 58). In
the present case, a final decision has not yet been made by the Delegate.
[62]
Second, and as the Respondents note, case law,
other than Placide, also indicates that the Delegate is not bound by a
PRRA officer’s Risk Assessment (Delgado, at para 7; Muhammad 2012, at
para 42; Liu v MCI, 2009 FC 877 at para 147; Allel v MCI, 2003
FCT 533 at para 19). In Muhammad 2014, Justice Strickland
confirmed that the Delegate is not bound by the PRRA officer’s risk assessment:
[64] This issue has previously been before
this Court. Based on both the legislation and that jurisprudence, it is my view
that the Minister's Delegate is not bound by the PRRA Officer's risk
assessment.
[65] The Applicant's PRRA application was
processed according to subsections 172(1) and (2) of IRPA Regulations and IRPA
legislative scheme as described above. Section 172(1) states that before
"making a decision to allow or reject" an application described in
section 112(3) of IRPA, a Minister's delegate "shall consider" the
risk and security assessments and written response to them by an applicant. It
does not restrict the consideration to a weighing of the assessments nor state
that a Minister's delegate is bound by them.
[63]
Justice Strickland also found in Muhammad 2014 that:
[68] The Minister's Delegate in her
affidavit dated August 22, 2013, made reference to section 17.2 of the PRRA
Operational Manual. It concerns the circumstances in which persons who are
granted stays pursuant to subsections 112(3) and 172(2)(b) of IRPA are
re-examined, due to a change of circumstance, pursuant to section 172(2)(a) of
IRPA Regulations. The process to be followed in that event is set out,
including:
Once in receipt of the submissions of
the individuals, the CBSA removal officer will forward the submissions to the
Coordinator, Danger to the Public / Rehabilitation CMB for consideration by the
C&I Minister's Delegate, who makes a decision to cancel or maintain the stay
based on a balancing of the factors in A97(1) and A113(d)(i) and (ii) as
applicable. The stay will be maintained if the C&I Minister's Delegate is
of the opinion after balancing the risks to the individual against the risk to
society that the individual, because of the risk that would be faced on
removal, should be allowed to remain in Canada. However, should the C&I
Minister's Delegate decide that risk to the individual no longer exists,
or that the risk that the individual poses to Canada and Canadians outweighs
the risk to the individual, the stay will be cancelled...
[69] This suggests that not only may the
Minister's Delegate balance the risk and security assessments, but that he
or she may also make a decision as to whether a risk still exists. Clearly
if such a decision is made it may, or may not, be in accordance with the PRRA
Officer's risk assessment. (Emphasis added)
[64]
If a Delegate is not ultimately bound by the conclusions of a Risk
Assessment, it follows that it can be reassessed if a significant amount of time
has passed since the initial assessment, as in this case, where 11 years passed
between the initial Risk Assessments and the Reassessment.
[65]
Indeed, the jurisprudence emphasizes the opposite. Justice Brown
recently concluded in Thiruchelvam v Canada (Citizenship and Immigration),
2015 FC 585, at para 27 that a Delegate's decision rejecting an outdated Risk
Assessment without a chance for the applicant to comment on the relevant
circumstances was a violation of procedural fairness, because "[t]he Minister’s delegate is duty
bound to consider the restricted PRRA report and the CBSA report. These reports
must be given to the Applicant and he has a statutory right to comment on them.
That right of comment is rendered nugatory if the PRRA is so out of date as to
be of no use to the Applicant or the Minister."
[66]
Therefore, I find that a Reassessment was properly conducted and shared
with the Applicant in this case.
[67]
The Applicant also argued that having the Reassessment conducted by a
Case Management Branch Analyst, as opposed to a PRRA Officer was a violation of
procedural fairness. Given this Court's historic reliance on the expertise of
PRRA officers in its jurisprudence, post-hearing submissions on the subject
were sought from the parties.
[68]
After considering the submissions, given the CIC Analyst’s comparable
training, seniority, compensation and tenure to that of PRRA officers, it is
clear that the Reassessment was not conducted by a party ill-equipped for the
task.
[69]
For instance:
1)
PRRA Officers are Senior Immigration Officers, with a public service
classification as a PM4 and an annual rate of pay between $63,663-68,793,
depending on the years of service. They may be contract or indefinite employees,
contingent on staffing requirements. A Case Management Branch Analyst (CIC
Analyst) holds the same PM4 classification, with the same pay scale, and may
also be a contract or indefinite employee.
2)
PRRA Officers exist only in regional offices, whereas Analysts exist
only in the National Headquarters region. PRRA Officers report to a PM5
Manager, who reports to a PM6 Assistant Director, who reports to an EX1
Director. An Analyst reports to a PM5 Case Management Branch Senior Analyst,
who reports to a PM6 Assistant Director, who reports to an EX1 Director.
3)
The Analyst who conducted the Reassessment in this case received the
same training as a PRRA Officer. While it is unclear from the Crown's
submissions whether every analyst receives comparable training, and there would
certainly be a procedural fairness concern if a Reassessment was conducted by
an official without the training to properly do so, that is not the case here.
[70]
Further, in this case, the Applicant's Reassessment was reviewed by a
Case Management Branch Analyst and a Case Management Branch Senior
Analyst, providing the Applicant with more reviews than would have occurred if only
a Risk Assessment had been conducted by a PRRA officer. In this sense, the
Reassessment actually afforded the Applicant more procedural fairness than a
Risk Assessment, not less. Consequently, I do not find there was a violation of
procedural fairness in this case.
C.
Is the Delegate
sufficiently impartial and independent to adjudicate the restricted PRRA?
[71]
The Applicant submits that the Delegate lacks the
necessary independence to make a determination with respect to risk. A high
level of independence is required in this case because the decision could
result in the removal of the Applicant to face a risk of torture or other forms
of cruel and unusual treatment or punishment, and therefore engages section 7
of the Charter (Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 S.C.R. 3 at para
80 [Matsqui]).
[72]
The Supreme Court in Valente v The Queen, [1985] 2 S.C.R. 673 [Valente] indicates the
three necessary criteria of independence, which also apply to administrative
tribunals: security of tenure, financial security, and administrative control. The
Applicant argues the Delegate does not meet these criteria. The Delegate can be
selected and removed at whim by the Minister. Furthermore, the independence of
the Delegate is endangered, according to the Applicant, because Government
officials may meet with the Delegate's supervisor to discuss the political
ramifications of a particular decision. PRRA Officers, on the other hand, have
tenure for a fixed term and are not as influenced by the Minister's political
considerations as the Delegate.
[73]
The Applicant also argues that while Justice
Strickland may have addressed the Delegate's institutional independence in Muhammad
2014, the Court actually conflated the concepts of institutional independence
and institutional impartiality. Rather, the proper test for institutional
independence of the Delegate was not considered as outlined in Valente,
and no clear determination was made in this regard.
[74]
The Respondents submit, to the contrary, that
the Delegate is sufficiently independent: the process for selecting Delegates
is in accordance with the Public Service Employment Act and Delegates
enjoy the same level of independence as PRRA officers. Consultation with government
officials on various matters does not inherently cause a lack of independence (Tursunbayev
v MPSEP, 2012 FC 532 at para 86). Additionally, it cannot be inferred
solely from the political nature of a Minister's comments that there exists a
reasonable apprehension of bias (Dunova v Minister of Citizenship and
Immigration, 2010 FC 438 at para 61). These arguments only bolster this
Court's recent findings that the Delegate is independent and impartial after an
in depth analysis of the two concepts (Muhammad 2014, above at paras
124-144).
[75]
The three cornerstones of independence are
identified in Valente, and consist of (i) security of tenure, (ii)
financial security, and (iii) the exercise of administrative control. The court
found in Matsqui that there should be a high degree of independence for
tribunals making decisions which affect the security of the person or an
individual. The test for independence is whether there is a reasonable
apprehension of bias (Matsqui, above at para 77, 88; Lippé v Charest,
[1990] SCJ No 128, at para 79). In Committee for Justice and Liberty et
al v National Energy Board et al, [1978] 1 S.C.R. 369 at para 40, the Supreme Court
explains the test for reasonable apprehension of bias:
[40]…the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information. In the words of the Court of
Appeal, that test is "what would an informed person, viewing the matter
realistically and practically — and having thought the matter through —
conclude…”
The threshold to find a reasonable apprehension of bias is
high (Say v Solicitor General, 2005 FC 739 at para 22; R v S
(RD), [1997] 3 S.C.R. 484 at
paras 111-113).
[76]
In Muhammad 2014, very similar arguments
were made regarding the Delegate’s lack of independence, particularly that the
proximity of the Delegate to the Minister, as well as contact with other senior
government officials and agencies, leads to a lack of independence. On this
point, Justice Strickland concluded that no such breach of fairness occurs:
[134] Based on the foregoing and given that an
allegation of a lack of institutional impartiality is of such potential
significance from both an operational and a procedural fairness perspective,
the grounds to establish it must be substantial. The evidence adduced by the
Applicant in this case is insufficient to meet this requirement and satisfy his
onus of demonstrating want of impartiality in a substantial number of cases.
The mere fact that the Minister's Delegate is situated in the CMB, particularly
when considered together with the evidence concerning her relationship to and
communications with both Mr. Dupuis and the Minister's Office,
does not meet the onus.
[77]
I find this reasoning persuasive, and it is
clear that Justice Strickland was aware of the Valente factors before
coming to this conclusion (Muhammad 2014 at 86). In any event, I find it
unnecessary to conclusively decide whether the Delegate is sufficiently
institutionally independent and/or institutionally impartial, as the impugned
decision maker has yet to even render a decision. Such a determination may not
even be necessary in this case, and in the event it is, should be decided with
a complete evidentiary record, including the contested decision. It will be
open to the Applicant to raise this issue in the eventuality that he challenges
the Delegate's decision.
III.
CERTIFIED QUESTION
[78]
The Applicant proposed the following certified
questions:
1. Can the Minister be stayed from bringing forward new allegations
against an applicant in a section 112(3) PRRA when bringing forward those
allegations constitutes an abuse of process?
2. Is the Minister’s Delegate sufficiently independent and impartial to
render decisions that engage section 7 with respect to risk of torture?
3. Can the Minister’s Delegate when considering a PRRA under subsection
112(3) reconsider and overturn the decision of the PRRA officer in relation to
risk or is the Delegate’s role restricted to balancing the two opinions
provided to him/her?
4. Can the Delegate consider a risk opinion provided by a senior
analyst when he/she renders his/her decision and is it a violation of an
individual’s procedural fairness rights, as provided by section 7 of the
Charter, to have a senior analyst reconsider the risk assessment of a PRRA
Officer?
5. Is the senior analyst sufficiently independent to render decisions
that engage section seven with respect to the risk of torture?
[79]
The Respondents submit that only the Applicant’s
second through fifth questions may raise issues of general importance, but
propose the following wording to better reflect the dispositive issues of
general application:
1. Is there a reasonable apprehension that the Minister’s Delegate is
not independent or impartial to make determinations on section 112(3) PRRA’s?
2. Is the Minister’s Delegate, in determining a section 112(3) PRRA,
bound by the risk assessments provided to him by PRRA Officers and Case
Analysts?
3.
In a section 112(3) PRRA, where there has been a
significant passage of time since the initial PRRA was determined, is it a
violation of procedural fairness to conduct an updated risk assessment? Does it
violate procedural fairness to allow an Analyst, rather than a PRRA Officer, to
conduct that update?
[80]
After careful consideration, I will not certify
any of the proposed questions, as per the guidance of the Federal Court of
Appeal in Zhang v Canada (Citizenship and Immigration), 2013 FCA 168, at
para 9. I do not see the resolution of the proposed questions to have transcended
the interests of the immediate parties to the litigation because the ultimate decision
has yet to even be rendered (see my comments at paragraphs 53-57 above). That
is, it is too early to tell if these issues will even have a tangible effect on
the ultimate outcome, let alone transcend the parties’ interests. Higher
courts, if these issues are certified, would benefit from having a decision
which reveals how they may have impacted the end result, if at all. As Justice
Stratas wrote in Budlakoti v Canada (Citizenship and Immigration), 2015
FCA 139, at para 30, “…[u]nless there is a good reason,
a reviewing court should not offer views on those issues in advance.”
Prematurity is one of those reasons (Budlakoti at para 28).
IV.
CONCLUSION
[81]
The components that must be considered in a
restricted section 112(3) PRRA are a Stage 1 Risk Assessment, a Stage 2
Restriction Assessment, and a Stage 3 Decision from the Delegate balancing
these Assessments. A Reassessment may supplant the Risk Assessment if,
as is the case here, it does not violate procedural fairness. The Stage 3
decision has yet to be made, and this application therefore comes at an
interlocutory stage, where administrative law principles weigh against judicial
intervention.
[82]
While there have undeniably been long delays in
the processing of this matter, the Government has nonetheless furnished
evidence to show that the file has been active through much of the eleven years
in question, albeit with various lulls. Certain of these lulls resulted from
the Applicant’s other immigration-related filings.
[83]
The time has come for the Delegate to make the
Stage 3 Decision. After it is rendered, the Applicant can decide whether it is
necessary to seek judicial review. Given the prematurity of this application
for judicial review, it is dismissed and the matter will proceed to the
Delegate for a decision on the restricted.
[84]
This application for judicial review is
dismissed. No costs award will be made. The Delegate shall render a PRRA Decision
under subsection 112(3) of the IRPA within 90 days of this judgement.
Email this Content