Date: 20010406
Docket: A-138-00
MONTRÉAL, QUEBEC, THIS 6th DAY OF APRIL 2001
Coram: DESJARDINS J.A.
DÉCARY J.A.
NOEL J.A.
Between:
RONY DANILO FIGUEROA
MARITZA JUDITH MORALES de FIGUEROA
HEIDY FIGUEROA-MORALES
ELSA MARITZA FIGUEROA-MORALES
Appellants
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT
The appeal is dismissed with costs.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne M. Gauthier, LL.L., trad. a.
Date: 20010406
Docket: A-138-00
Neutral citation: 2001 FCA 112
Coram: DESJARDINS J.A.
DÉCARY J.A.
NOEL J.A.
Between:
RONY DANILO FIGUEROA
MARITZA JUDITH MORALES de FIGUEROA
HEIDY FIGUEROA-MORALES
ELSA MARITZA FIGUEROA-MORALES
Appellants
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Hearing held at Montréal, Quebec,
on Friday, April 6, 2001
Judgment delivered at Montréal, Quebec,
on Friday, April 6, 2001
REASONS FOR JUDGMENT OF THE COURT BY: DESJARDINS J.A.
Date: 20010406
Docket: A-138-00
Neutral citation: 2001 FCA 112
Coram: DESJARDINS J.A.
DÉCARY J.A.
NOEL J.A.
Between:
RONY DANILO FIGUEROA
MARITZA JUDITH MORALES de FIGUEROA
HEIDY FIGUEROA-MORALES
ELSA MARITZA FIGUEROA-MORALES
Appellants
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec,
on Friday, April 6, 2001)
DESJARDINS J.A.
[1] We are all of the opinion that this appeal of an application for judicial review should not succeed.
[2] The question certified by the Trial Judge (Figueroa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 250 (T.D.) (Q.L.)) reads as follows:
Under the power of decision granted to him in paragraph 46.04(3) of the Immigration Act, may an immigration officer, without the intervention of an adjudicator, refuse to grant landing to the applicant and to any dependant for whom landing is sought, on the ground that he is not satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(j) of that Act?
[3] Subsection 46.04(3) of the Immigration Act (the Act), to which the question certified refers, reads as follows:
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46.04 (3) Notwithstanding any other provision of this Act, but subject to subsections (3.1) and (8), an immigration officer to whom an application is made under subsection (1) shall grant landing to the applicant, and to any dependant for whom landing is sought if the immigration officer is satisfied that neither the applicant nor any of those dependants is a person described in paragraph 19(1)(c.1), (c.2), (d), (e), (f), (g), (j), (k) or (l) or a person who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
(a) more than six months has been imposed; or
(b) five years or more may be imposed.
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46.04 (3) Malgré les autres dispositions de la présente loi mais sous réserve des paragraphes (3.1) et (8), l'agent d'immigration accorde le droit d'établissement à l'intéressé et aux personnes à sa charge visées par la demande, s'il est convaincu qu'aucun d'entre eux n'est visé à l'un des alinéas 19(1)c.1), c.2), d), e), f), g), j), k) ou l) ou n'a été déclaré coupable d'une infraction prévue par une loi fédérale :
a) soit pour laquelle une peine d'emprisonnement de plus de six mois a été infligée;
b) soit passible d'un emprisonnement maximal égal ou supérieur à cinq ans.
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[4] Notwithstanding the clear provisions of subsection 46.03(3), the appellants submit that an immigration officer has no jurisdiction to declare the appellants to be inadmissible unless an adjudicator had found that one of them (in this case, the husband) was a person described in paragraph 19(1)(j) of the Act, which reads as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes:. . .
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission;
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19. (1) Les personnel suivantes appartiennent à une catégorie non admissible :
. . .
j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis, à l'étranger, un fait constituant un crime de guerre ou un crime contre l'humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l'époque de la perpétration;
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[5] However, the decisions on which the appellants rely, including Gwala v. Canada, [1999] F.C.A. No. 792 (F.C.A.)(QL) and Raman v. Canada [1999] F.C.A. No. 839 (F.C.A.)(QL), may be distinguished from this case.
[6] In Gwala, the question certified was whether senior immigration officers had the implied authority to decide questions of law. This Court said that they did not.
[7] The decision in Raman related to whether a senior immigration officer had jurisdiction at common law, or pursuant to section 7 of the Canadian Charter of Rights and Freedoms or subsection 52(1) of the Constitution Act, 1982, to reopen a hearing at the end of which an exclusion order had been made, in order for a person to claim protection as a Convention refugee. This Court cited Gwala, and then stated ([1999] F.C.A. No. 839 (F.C.A.) paragraph 14):
... senior immigration officers have no jurisdiction to answer legal or constitutional questions [Gwala v. Canada ...] ... and are expressly deprived by the Act of jurisdiction to reopen a decision to remove a person from Canada.
[Emphasis added]
[8] In this case, the Act expressly gives an immigration officer jurisdiction to make a decision regarding the admissibility of an applicant for landing in Canada. Accordingly, the immigration officer had jurisdiction to grant or refuse the appellants landing.
[9] The appellants submit, second, that if the immigration officer has jurisdiction, he did not, as paragraph 19(1)(j) of the Act requires, determine the question of whether the facts alleged against one of them "would have constituted an offence against the laws of Canada in force at the time of the act or omission".
[10] We are of the opinion, on the contrary, that on the evidence in the record, the immigration officer had "reasonable grounds" to conclude that one of them should be excluded based on the second element of paragraph 19(1)(j) of the Act.
[11] In the two cases that it decided on April 2, 1992 and March 12, 1997, and particularly in the second case in which it included the notes made by Diane Clement (Appeal Record, pp. 302 et seq.), the Refugee Division refers to the role played by the husband in the Guatemalan secret police from 1982 to 1986, in which he had been voluntarily involved. He worked in a department known for human rights abuses, interrogations and torture. He participated in missions in the mountains and in interrogations at the Le Peten military base where the interrogations conducted were extremely harsh. He himself arrested a number of people, knowing that they would be interrogated and tortured, and attended at interrogations during the course of which torture was indeed carried out.
[12] This appellant was therefore not an outside witness to the things that were being done in his presence.
[13] The immigration officer accordingly had ample evidence on which he could have concluded that one of the appellants was a person described in paragraph 19(1)(j) of the Act.
[14] The question certified will be answered in the affirmative and the appeal will be dismissed with costs.
"Alice Desjardins"
J.A.
Certified true translation
Suzanne M. Gauthier, LL.L., trad. a.
FEDERAL COURT OF APPEAL
Date: 20010406
Docket: A-138-00
Between:
RONY DANILO FIGUEROA
MARITZA JUDITH MORALES de FIGUEROA
HEIDY FIGUEROA-MORALES
ELSA MARITZA FIGUEROA-MORALES
Appellants
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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REASONS FOR JUDGMENT
OF THE COURT
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FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: A-138-00
STYLE OF CAUSE: RONY DANILO FIGUEROA
MARITZA JUDITH MORALES de FIGUEROA
HEIDY FIGUEROA-MORALES
ELSA MARITZA FIGUEROA-MORALES
Appellants
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: April 6, 2001
REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE DESJARDINS
DATED: April 6, 2001
APPEARANCES:
William Sloan FOR THE APPELLANTS
Normand Lemyre FOR THE RESPONDENT
SOLICITORS OF RECORD:
William Sloan FOR THE APPLICANTS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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