Date: 20001114
Docket: A-464-99
CORAM: LINDEN J.A.
McDONALD J.A.
MALONE J.A.
BETWEEN:
WELDEAB TEWELDE
Appellant
(Applicant),
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Respondent),
REASONS FOR JUDGMENT
(Delivered from the Bench at Winnipeg, Manitoba on November 14, 2000)
LINDEN, J.A.
[1] The Trial Judge, following his dismissal of the application for judicial review in this case, certified the following question:
| Does the phrase "this Act" found in paragraph 46.01(1)(d) of the Immigration Act. R.S.C., 1985, c. I-2, as amended, refer to the Immigration Act as it read at the time the current form of paragraph 46.01(1)(d) came into force and the form of that Act since that date, or to the Immigration Act, by whatever name known, in all of the forms that it has taken since 1983? |
Section 46.01(1) of the Immigration Act reads:
| 46.01(1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person |
. . .
| (d) has been determined under this Act or the regulations, to be a Convention refugee; or |
FACTS
[2] The Appellant was born in Ethiopia in 1959 and came to Canada as a student in 1981. He made a claim for refugee status from within Canada, claiming fear of persecution in Ethiopia. In November of 1984, the Appellant was found to be a Convention refugee. He achieved landed status in 1986.
[3] Effective May 24, 1993, the portion of Ethiopia in which the Appellant was born, and for whose independence he fought, became Eritrea, a separate country.
[4] In March, 1990, the Appellant was convicted of robbery and two counts of living off the avails of prostitution. In July, 1997, he was convicted of possession of cocaine for the purposes of trafficking. On April 8, 1998, The Minister declared the Appellant to be a danger to the public in Canada. The danger opinion was issued under paragraph 53(1)(d) and subsection 70(5) of the Immigration Act but not under section 46.
[5] In May, 1998, the Appellant was the subject of a report under section 27 of the Act. The inquiry was held on June 10, 1998, and the Appellant made a new claim to be a Convention refugee, this time with respect to Eritrea. The Appellant is now a citizen of Eritrea and alleges that his current fear of persecution relates not to persecution in Ethiopia, which would be irrelevant since he has no right of return there, but rather to fear of persecution in Eritrea because, although he fought for the liberation of Eritrea, he fought on the side of rebels who are not in favour with the Government of Eritrea. As a result of the inquiry, the Adjudicator found the Appellant to be a person described in paragraph 27(1)(d) of the Act and issued an order deporting the Appellant to Eritrea, conditional upon the determination of the Appellant's refugee claim.
[6] On June 26, 1998, Senior Immigration Officer Robert Fontaine determined that the Appellant was not eligible to have his refugee claim referred to the Refugee Division based on paragraph 46.01(1)(d) of the Act in that the Appellant had "been determined under this Act or Regulations to be a Convention refugee".
[7] On July 15, 1999, the Appellant's application for judicial review of the decision of Officer Fontaine was dismissed by Gibson J. who reasoned as follows:
| 21. During the period of time that is relevant on the facts of this matter, the Immigration Act, by whatever name, has not been repealed and replaced except in the course of enactment of the Revised statutes of Canada, 1985. In light of section 4 of the Revised Statutes of Canada, 1985 Act quoted earlier, I am satisfied that that repeal and reenactment should be ignored. Thus, the Act that was in force when the applicant was determined to be a Convention refugee in 1984 is the same Act that is in force today, albeit the Act has been substantially amended. No special purposes were enunciated for the chapter 35 amendments as they were for the chapter 36 amendments. If Parliament had in mind special purposes such as those advocated on behalf of the applicant herein, those purposes could have been identified. They were not. In this regard, the contrast between the chapter 35 amendments and the chapter 36 amendments is stark. Canadian immigration policy in relation to international legal obligations with respect to refugees and Canada's humanitarian tradition with respect to the displaced and the persecuted has not changed, except as specified in respect of the chapter 36 amendments. |
| 22. Nothing can be read into the change in name from the Immigration Act, 1976 to the Immigration Act. Made as it was in the course of the statute revision, it cannot be interpreted to be anything more than grammatical or cosmetic. |
| 23. Similarly, I read nothing into the fact that, in transitional provisions forming part of the chapter 35 amendments, the pre-chapter 35 amendments Act was referred to as the "former Act". Similarly, the acknowledgement in Ardon that the pre-chapter 35 amendments Act was known as the "old" Immigration Act cannot aid the applicant. Convenient terminology adopted by those who regularly use the Immigration Act cannot constitute, of itself, an aid to interpretation. |
| 24. The words "this Act" in paragraph 46.01(1)(d) have a plain meaning. They refer to the Act in which they appear, not as it read when those words were inserted into the Act and after that time but as it read from time to time before the words were inserted, as it has read since the words were inserted and as it will read from time to time until the works "this Act" are changed or the Act is repealed and reenacted, otherwise than in a purely formal process, in the same or a different form. I am satisfied that this conclusion is the only one open that is consistent with the legislative history, since 1984, of the Immigration Act. It is of some solace that such a conclusion, at least in the submission of counsel for the respondent, is consistent with a reasonable interpretation of other provisions of the Immigration Act in which the same words appear. |
ANALYSIS
[8] Despite the thorough, subtle and characteristically sophisticated argument of Mr. Matas, counsel for the appellant, we are of the view that the appeal must be dismissed and that the certified question must be answered as follows:
| The phrase "this Act" found in paragraph 46.01(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2 as amended refers to the Immigration act by whatever name it was known in all of the forms taken since the date it came into force, April 10, 1978. |
The change of date from the original question to April 10, 1978 was agreed to by both counsel.
[9] In essence, despite a slip as a result of a typographical error in one of the published reports of the Ardon case, handed to the Judge, which used the words "the Act" instead of "this Act", as it then read, we adopt the analysis of the Justice Gibson, who is most experienced in these matters and, who, despite some hesitation, properly decided the case on sound reasoning.
[10] In our view, subsection 37(2) of the transitional provisions aid in the determination that the Chapter 35 amendments did not create a new Immigration Act, but were only amendments consistent with the tenor of the existing Immigration Act, 1976. In addition, the doctrine of merger as codified in subsection 42(3) of the Interpretation Act also supports this view. That subsection reads:
| "An amending enactment, as far as consistent with the tenor thereof, shall be construed as part of the enactment that it amends." |
Additional support for this conclusion may be derived from section 44 of the Interpretation Act which states:
| 44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor, |
| (f) except to the extent that the provisions of the new enactment are not substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment; ..." |
[11] As for the case of Ardon [1990] F.C.J. No. 435, which implicitly may have given some support to the appellant's argument, it was based on a version of the Act which contained the significant words "finally determined", which words have been dropped from the current legislation. Hence that case cannot be said to be directly applicable to the interpretation of the language in the current version of the legislation. The fact that the I.R.B. has, perhaps wrongly, relied on Ardon in several subsequent cases and has by analogy applied it in other circumstances, even after the section was amended, cannot be controlling, or even of substantial influence, in this Court in this case.
[12] In our view, any other interpretation of the words "this Act" in paragraph 46.01(1)(d) of the Act, would introduce an unwarranted and destabilising precedent which could put into question the meaning of the words "this Act", not only in the Immigration Act, but virtually in every legislative enactment that has been the subject of subsequent amendment.
[13] We were urged to decide a second question dealing with this problem of a refugee from a country that has fragmented, which the Trial Judge refused to certify, but which may have been open to this Court to consider (see Pushpanathan [1998] 1 S.C.R. 982). We decline to do so. That question, though perhaps of some importance, should be dealt with in a case which squarely turns on the issue and where the facts and the legal arguments are central to the hearing, rather than peripheral to it, as they were in this case.
[14] As a final note, individuals, whose refugee status is threatened by subsequent fragmentation of their country of origin, have other avenues to raise this matter, in an H & C application and perhaps in other proceedings as well, where the issue may be fully canvassed in the circumstances of the particular case.
[15] The appeal should be dismissed.
Winnipeg, Manitoba
November 14, 2000
"A.M. Linden"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: WELDEAB TEWELDE
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: NOVEMBER 14, 2000
REASONS FOR JUDGMENT RENDERED ORALLY FROM THE BENCH BY
THE HONOURABLE MR. JUSTICE LINDEN
THE HONOURABLE MR. JUSTICE McDONALD
THE HONOURABLE MR. JUSTICE MALONE
APPEARANCES:
Mr. David Matas FOR THE APPELLANT
| Mr. Joel Katz FOR THE RESPONDENT |
SOLICITORS OF RECORD:
Mr. David Matas
Barrister and Solicitor
Winnipeg, Manitoba FOR THE APPELLANT
Morris Rosenberg
Deputy Attorney General
| for Canada FOR THE RESPONDENT |
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