Docket: IMM-3726-16
Citation:
2017 FC 1008
Ottawa, Ontario, November 7, 2017
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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FRANCISCO
SUAREZ ABELEIRA
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Applicant
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and
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THE MINISTER OF
IMMIGRATION,
REFUGEES AND
CITIZENSHIP CANADA
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Respondent
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JUDGMENT AND REASONS
I.
The Nature of the Application
[1]
Francisco Suarez Abeleira [Mr. Abeleira] is a 66-year-old
stateless person. He seeks judicial review of the decision of a Senior
Immigration Officer [Officer] refusing his application for permanent residence
on humanitarian and compassionate grounds [H&C Application] under section
25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, the application is
allowed. The Officer took a narrow view of the facts. He failed to analyze and
consider several of the arguments made by Mr. Abeleira. In particular, the
Officer failed to consider whether Mr. Abeleira actually can be removed from
Canada and, if so, to what country? The Officer also erred in his analysis of
the hardship Mr. Abeleira would face if he were returned to the United
States, or if he were to continue living in Canada as a stateless person.
II.
Mr. Abeleira’s Personal Journey
[3]
There is no dispute that Mr. Abeleira is a
stateless person. He believes he was born in Vigo, Spain on August 10, 1951. His
parents fled the Franco dictatorship shortly after his birth and moved to
Mexico. Spain has no record of his birth - it may not have been registered or,
it might have been destroyed during the time of Franco.
[4]
Tragically, Mr. Abeleira was orphaned at the age
of three when his parents died in an automobile accident. He was then raised by
neighbours in Mexico until, at the age of 12, he ran away from them because of
their mistreatment of him. He then lived near the US-Mexican border, and made a
living smuggling goods across the relatively insecure border and selling them
in the United States and selling American electronics and clothing in Mexico.
In his late teens, Mr. Abeleira moved permanently to the United States,
and lived as an undocumented person for some time.
[5]
In 1975, he moved to New York City and purchased
a birth certificate in the name of Angel Lagomasini, a legitimate US citizen
who lived in Puerto Rico and died in 2008. He used the birth certificate to
acquire a driver’s licence, social security number and a US passport.
[6]
From 1975 to 2009, Mr. Abeleira lived and worked
as a teacher in the United States under the false name. He obtained a high
school diploma, received a bachelor’s degree in education in 1989, and an MSc
in education in 1995. In 1987, Mr. Abeleira began working for the New York City
Board of Education as a teacher’s assistant and was promoted until he became a
certified teacher in 2004. Mr. Abeleira ceased working at the New York City Board
of Education in 2006, at which point he was earning a gross annual income of
$55,000 in US currency. Mr. Abeleira also married twice, in 1993 (divorcing in
1998) and in 2004 (divorcing in 2009, when his second wife discovered that his
purported identity was false).
[7]
Then, in May of 2009, Mr. Abeleira’s secret was discovered.
He was arrested at JFK International Airport in New York while he was departing
for Spain where he taught English and Spanish as a freelance instructor. He
admitted to the agents that his identity was false.
[8]
Mr. Abeleira was criminally charged with
violating 18 U.S.C. 1542 – false statement in application and use of passport.
He was then ordered detained in federal custody by the US District Court. On
June 8, 2009, Mr. Abeleira pled guilty.
[9]
On July 21, 2009, Mr. Abeleira was sentenced to
time served as well as a supervised release order that required him to remain
in the local district. The order also stated that if Mr. Abeleira was
deported, he was not to re-enter the United States without the consent of the
US Attorney General.
[10]
Upon release from US Corrections, Mr. Abeleira
was remitted to Immigration and Customs Enforcement [ICE] and detained in an
immigration detention centre. On July 27, 2009, he was ordered removed from the
United States. However, he remained in ICE custody and was only released in
October, 2009, when ICE determined that it could not remove him. A letter from
the Spanish consulate confirmed that they did not regard him as having any
status in Spain.
[11]
According to Mr. Abeleira, he was informed that
as someone in the United States without status, he could be put back in
detention at any time. He received advice from US attorneys that he would not
be able to regularize his status in the United States. He was told that he
should instead cross the border to Canada, and attempt to regularize his status
here.
[12]
Upon the recommendation of the US attorneys Mr.
Abeleira fled the United States on March 29, 2010 and came to Canada where he
sought refugee protection. Because he had no real identity documents and was
required by his release order to remain in New York City, Mr. Abeleira crossed
into Canada at an unmonitored border crossing between Vermont and Quebec. He
then made an inland refugee claim on April 9, 2010, on the basis of his
statelessness.
[13]
Mr. Abeleira has no documentation, of any kind, proving
his identity. No birth records exist. Even the United States identity documents
he procured using the false birth certificate were confiscated by the
authorities there.
III.
The First H&C Application
[14]
On August 3, 2011, the Refugee Protection
Division [RPD] of the Immigration and Refugee Board of Canada rejected Mr.
Abeleira’s refugee claim. The RPD accepted that he was stateless, but found
that he did not face persecution on a Convention ground in the United States,
the country of his former habitual residence. Leave to judicially review the
RPD decision was denied.
[15]
On October 17, 2012, Mr. Abeleira submitted an
in-land H&C Application, on the grounds that he could not be removed to the
United States, faced imprisonment for lacking status if he somehow was removed
to the United States, faced hardship from statelessness in Canada, and was
established in Canada.
[16]
On May 13, 2014, Mr. Abeleira’s H&C
Application was denied. Leave to judicially review the decision was granted. On
December 3, 2015, Mr. Justice LeBlanc granted the application for judicial
review, overturned the decision and remitted the H&C Application back to a
different officer for redetermination. Justice LeBlanc found that the officer’s
decision was unreasonable because she limited her consideration to whether Mr.
Abeleira’s circumstances were beyond his control and unreasonably dismissed his
establishment in Canada despite significant evidence on that point. Justice
LeBlanc’s decision is reported at 2015 FC 1340.
IV.
Additional Information added to the H&C
Application on Redetermination
[17]
On June 23, 2016, Mr. Abeleira made additional
submissions on his H&C Application. The updated submissions noted the
factors to be considered in H&C applications, as clarified by the Supreme
Court of Canada’s ruling in Kanthasamy v Canada (Citizenship and
Immigration), 2015 SCC 61 [Kanthasamy]. In that decision, the
Supreme Court determined that there was no longer a hardship “test” for H&C applicants, and that hardship
should be used as descriptive rather than creating new thresholds for relief
under section 25 of the IRPA.
[18]
Mr. Abeleira submitted new supporting documents,
including a letter from Javan Courtney at Toronto Community Housing Corporation
[TCHC] attesting to Mr. Abeleira’s involvement there, a cheque from TCHC with
an honorarium for his volunteerism and help, and a copy of a receipt from St.
Michael’s hospital dated September 23, 2015 for $600 for a cystoscopy paid by Mr.
Abeleira. He submitted that this receipt was proof that his statelessness had
created hardship for him by rendering it necessary for him to pay for medical
expenses that would be covered by the government if he were a permanent
resident.
V.
The Decision under Review
[19]
The updated H&C Application was rejected on
August 17, 2016.
[20]
The Officer accepted that Mr. Abeleira was
stateless. He reviewed the United Nations Convention on Statelessness and
expressed sensitivity to the plight of stateless persons. The Officer divided
his analysis into sections on establishment, statelessness, and risks and
conditions in the country of origin (the United States), before coming to his
conclusion.
[21]
On establishment in Canada, the Officer noted
Mr. Abeleira’s volunteer work and accorded some weight to Mr. Abeleira’s
involvement with his community.
[22]
Regarding Mr. Abeleira’s employment, the Officer
noted his work in 2012 for the Toronto Police College and his honorarium from
TCHC. However, the Officer found that a level of employment sufficient to meet
basic needs is a minimum expectation of anyone in Canada and did not constitute
a full factor for acceptance. Moreover, the Officer noted that as of 2012
Mr. Abeleira was supplementing his work with social assistance and was not
receiving sufficient employment income to fully wean himself off social
assistance. From this, the Officer drew a negative inference. The Officer also
turned to Mr. Abeleira’s claim that he would receive a pension from his former
employment as a teacher in the United States, but found there was no evidence
to support this claim and gave it no weight.
[23]
On statelessness, the Officer noted Mr.
Abeleira’s claim that his precarious status has created barriers to accessing
full employment opportunities and healthcare. However, the Officer found
insufficient evidence that Mr. Abeleira’s minimal employment was due to
statelessness. The Officer noted that Mr. Abeleira had been granted several
work permits, the last one of which expired on April 25, 2015. The Officer
therefore rejected Mr. Abeleira’s explanation that his inability to work was
due to his statelessness.
[24]
Regarding healthcare, the Officer found that Mr.
Abeleira had not proven that he could not obtain basic medical care in Canada.
In fact, Mr. Abeleira had benefited from the Interim Federal Health Program
[IFHP], which expired on May 26, 2016. As a failed refugee claimant, Mr.
Abeleira was entitled to coverage under the IFHP and had not established that
he had tried to renew it and it was refused.
[25]
Regarding risks in the United States, the
Officer found that Mr. Abeleira had served his prison sentence for fraudulently
obtaining a passport, and therefore had failed to prove that he would be
incarcerated if returned to the United States. Because Mr. Abeleira poses no
danger to the United States, there was no reason for him to fear incarceration
if he were returned to the United States. The Officer also found no evidence to
demonstrate psychological harm from his incarceration in the United States or
that a return to the United States would place him back in the same situation.
[26]
Concluding, the Officer found insufficient
evidence that Mr. Abeleira was financially stable and independent or had built
strong ties to Canada. As such, he did not discharge his burden of proving he
would be at risk if he was removed to the United States, and therefore his
circumstances did not warrant an exemption from the requirement to apply from
outside Canada.
VI.
The Issue and Standard of Review
[27]
There is one issue: did the Officer commit a
reviewable error in refusing Mr. Abeleira’s application for permanent
residence from within Canada on humanitarian and compassionate grounds?
[28]
The Officer’s assessment of the evidence and
conclusion about whether an H&C exemption should be granted is reviewable on
a standard of reasonableness: Kanthasamy at para 44.
[29]
A decision is reasonable if the decision-making
process is justified, transparent and intelligible resulting in a determination
that falls within the range of possible, acceptable outcomes which are
defensible on the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47.
[30]
I am equally mindful that a decision-maker is
not required to make an explicit finding on each constituent element, however
subordinate, leading to the final conclusion. If the reasons of the Officer allow
the reviewing court to understand why he made his decision and permit the court
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met: Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16.
VII.
Analysis
[31]
The Supreme Court in Kanthasamy teaches
us that the legal test when considering an H&C Application is not one of
three separate thresholds - unusual and undeserved or disproportionate hardship
– to be considered separately and apart from the humanitarian purpose of
subsection 25(1). The words unusual and undeserved or disproportionate hardship
are to “be seen as instructive but not determinative,
allowing s. 25(1) to respond more flexibly to the equitable goals of the
provision:” Kanthasamy at para 33.
[32]
In Kanthasamy the Supreme Court also confirms
that the phrase “humanitarian and compassionate
considerations” is as set out in Chirwa v Canada (Minister of
Citizenship and Immigration) (1970), 4 I.A.C. 338 [Chirwa]:
[…] humanitarian and
compassionate considerations refer to “those facts, established by the
evidence, which would excite in a reasonable man [sic] in a civilized
community a desire to relieve the misfortunes of another — so long as these
misfortunes ‘warrant the granting of special relief’ from the effect of the
provisions of the Immigration Act”.
Kanthasamy at
para 13, citing page 350 of Chirwa.
[33]
Following Kanthasamy, in a case involving
a US draft dodger who had resided illegally in Canada for forty years, Mr.
Justice Brown explained that the change brought about by Kanthasamy means
that “reviewing courts should have some reason to
believe the Officers have done their job, that is, that H&C Officers have
considered not just hardship but humanitarian and compassionate factors in the
broader sense:” Marshall v Canada (Citizenship and Immigration),
2017 FC 72 at para 33.
[34]
In other words, the changes brought about by Kanthasamy
require officers to focus on humanitarian and compassionate factors writ large.
The purpose of the analysis is to determine whether to offer equitable relief,
in a manner that provides a flexible and responsive exception to the ordinary
operation of the IRPA in order to relieve the misfortunes of an applicant.
The officer is to make that determination by substantively considering and
weighing, cumulatively, all the relevant facts and factors submitted by an applicant
so that there is a global assessment.
[35]
Mr. Abeleira alleges several errors were made by
the Officer. As explained in the following sections, the three that in my view render
the decision unreasonable are:
1. The Officer failed to consider whether Mr. Abeleira can actually
be removed from Canada.
2. The Officer did not properly address Mr. Abeleira’s evidence of
hardship if he is removed to the United States.
3. The Officer did not properly address Mr. Abeleira’s evidence of
hardship if he were to remain in Canada as a stateless person.
A.
The Officer never determined whether Mr.
Abeleira can be removed from Canada.
[36]
Unlike many other stateless persons, Mr.
Abeleria is not known to have been a former citizen of any country, who then subsequently
became stateless. He is stateless through the circumstances of his unregistered
birth during the Spanish civil war and then being orphaned in Mexico at the age
of three.
[37]
Mr. Abeleira’s H&C Application submissions
centred on his statelessness and especially the fact that he cannot be removed
from Canada. The Officer never determined whether Mr. Abeleira can be
removed to another country in order to apply for permanent residence from
abroad.
[38]
Whether the country of origin was Spain or
Mexico or the United States – the country of his last habitual residence – the
circumstances are shown on the record to be that Mr. Abeleira cannot be
removed to any of those countries. As his counsel points out, Mr. Abeleira
is in a state of “legal limbo.”
[39]
Therefore, the only four countries to which Mr.
Abeleira has any connection at all (Canada being the fourth such country) do
not want him because he has no status in any of them. Yet, the Minister says
Mr. Abeleira has not shown sufficient humanitarian and compassionate grounds to
be permitted to apply for permanent residence from within Canada. He must
therefore apply for that status from another country. The conundrum is that
there does not appear to be any other country who will accept him. Not only is
Mr. Abeleira in a state of legal limbo, there is no way out of it. He appears
trapped in an endless loop of “you have to leave to
Canada to apply for permanent residence,” however “you can’t leave Canada because no country will take you.”
[40]
While I fail to see how that can be a reasonable
position in which to place any applicant, I do not have the benefit of the
Officer’s analysis. What makes the decision unreasonable is that the Officer
never analyzed this problem. While he looked at individual aspects of
statelessness such as health care and employment, he failed to see the big
picture and did not consider the effect of Mr. Abeleira’s statelessness at a
global level, particularly whether he can be removed from Canada and, if not,
whether it is humane or compassionate to leave him in an indefinite state of
limbo in this country.
[41]
There was important evidence before the Officer
that was not mentioned by him and may not have been considered. The ignored
evidence is further confirmation that the likelihood of being able to return
Mr. Abeleira to the United States is virtually non-existent. In a letter,
from an attorney at Vive, Inc. in the United States, an organization that assists
refugees seeking asylum and refugee protection in the United States and Canada,
it was opined that:
The key fact is
that the person (Mr. Abeleira) was ordered removed from the United States by an
Immigration Judge. Therefore, it has been judicially determined that the person
does not have a right to remain in the United States.
[42]
The attorney also pointed out that “The Reciprocal Agreement for the Exchange of Deportees
Between the United States of America and Canada,” which once stated that
any refugee who entered Canada from the United States could be removed to the
United States has been rescinded and is no longer applicable. The opinion
provided as a result of that rescission is that Mr. Abeleira “cannot be removed to the United States against his will.”
I take the likelihood that Mr. Abeleira will not provide his agreement to
be so removed as self-evident.
[43]
Nonetheless, the Minister says that
statelessness does not necessarily mean that Mr. Abeleira cannot be
removed from Canada. Under subsection 241(1) of the IRPA, if none of the
countries to which Mr. Abeleira has had a connection will authorize him to
enter, then the Minister can send him to any country that will authorize his entry
within a reasonable time. The Minister also says that difficulties with removal
do not warrant a positive H&C determination.
[44]
In my view, the situation in which Mr. Abeleira exists
is much more than just a “difficulty” with
removal. The fact that none of the countries with which he has had any association
will accept him makes it a prima facie impossibility to deport
him, which is precisely what occurred when the United States tried to deport
him.
[45]
The Minister did not allege there is actually “any country” to which Canada could send Mr. Abeleira.
As such, the notion that there may be a country willing to accept Mr. Abeleira
is purely speculative. Moreover, the Officer is required to consider the
hardship to Mr. Abeleira if he is removed to another country. However, without
knowing the country of removal, an officer cannot consider the conditions in that
country in order to determine whether Mr. Abeleira would suffer hardship there.
And if an officer cannot consider this, then it is difficult to see how the
decision rendered could be deemed reasonable. Therefore, until a country can be
identified, it seems Mr. Abeleira risks being stuck in a prolonged ping-pong
game between the Minister and the Federal Court.
B.
The Officer did not properly address Mr.
Abeleira’s evidence of hardship if he is removed to the United States
[46]
Mr. Abeleira had put forward for consideration
by the Officer that he had experienced trauma when he was detained by
immigration authorities in the United States. In the affidavit he submitted
with his H&C Application Mr. Abeleira claimed his life would be at risk if
he were to be held in a US detention centre:
My time in the ICE detention centre was
traumatizing. With my own eyes I saw a man dying from Tuberculosis. We were
well fed, but we were not treated well. I saw people becoming mentally
unstable. People feared for their lives in their home countries and their
future after deportation.
It was a shocking experience. My freedom was
taken and I was unsure what the future would hold for me or where I would be
sent.
(Affidavit of Mr. Abeleira at paras 56 and
57)
[47]
Mr. Abeleira submitted with his H&C
Application a New York Times article entitled “Officials
Hid Truth of Immigrant Deaths in Jail,” which outlines the facts of
several deaths of immigration detainees and the strategies used by personnel in
various fields of occupation, such as medical personnel, to cover up those
deaths.
[48]
The Officer erroneously found that Mr. Abeleira
would not face incarceration in the United States because he had served his
criminal sentence and he did not pose a threat to public safety in the United
States. As a result he gave no weight to Mr. Abeleira’s fear of
incarceration.
[49]
The evidence is that Mr. Abeleira was detained
in ICE custody for three months from July to October 2009, after his criminal
sentence of imprisonment had been completed. His release from prison was based
on his not being a risk to public safety. His release from immigration
detention was based on there being no country to which to send him.
[50]
The Officer erred when he mistakenly found that
having served the original criminal sentence, Mr. Abeleira was not at risk of
incarceration in the United States. Mr. Abeleira’s risk of incarceration
arises from his fleeing the United States in violation of the Supervised
Release Order [the Order] that prohibited him from leaving New York City for a
period of three years and which requires that, had he been deported, the US
Attorney General give permission for him to re-enter the country.
[51]
The conclusion drawn by the Officer that, having
served his criminal sentence, Mr. Abeleira was not at risk of further
incarceration is without foundation. It runs contrary to the evidence that he
could face further detention in ICE custody and is thereby unintelligible. That
finding also prevented the Officer from examining the hardship to Mr. Abeleira
in the event that he was returned to the United States and incarcerated. As
such, the decision is also unreasonable on this ground.
C.
The Officer did not properly address Mr.
Abeleira’s evidence of hardship if he remained in Canada as a stateless person
[52]
When Mr. Abeleira lived in the United States his
false identity was that of a citizen. He therefore had all the rights and
privileges that entails. He had a good job through which he was accumulating a
pension. He was free to travel outside the United States and return, which he
did. None of those opportunities are available to him as a stateless person in
Canada.
[53]
The Officer noted he was sensitive to the “plight of stateless persons, and of Mr. Suarez Abeleira in
particular.” The Officer failed to articulate any of those
sensitivities. In fact, he neither addressed nor dismissed many of the factors
submitted by Mr. Abeleira.
[54]
The record supports the negative factors
attaching to statelessness that were identified by Mr. Abeleira. A five page letter
dated July 9, 2013 from Amnesty International [Amnesty] specifically addresses
Mr. Abeleira’s situation as a stateless person in Canada. It summarizes reports
by Asylum Aid and the UNHCR regarding the precarious nature of statelessness.
It notes that the UNHCR names statelessness as a human rights issue. It
explains that being a non-refugee stateless person in Canada means that such a person:
−
is in a condition of legal limbo;
−
is in an extremely precarious situation:
vulnerable and marginalized;
−
cannot leave Canada to relocate permanently;
−
has no standing to enter another country;
−
if they manage to leave Canada, the stateless
person has no right to return;
−
is subject to removal from Canada and may be
detained pending removal;
−
may find that removal is impossible and
short-term detention may become indefinite;
[55]
The Officer did not acknowledge or address the
information put before him from Amnesty International concerning the effect of
statelessness in Canada, which effect would also apply in the United States.
The Officer mentioned that he had reviewed the United Nations Convention
Relating to the Status of Stateless Persons. But, at no time did he explain
what he considered about Mr. Abeleira being stateless in the United States
or Canada and why it did not excite in him a desire to relieve the misfortunes
of Mr. Abeleira.
[56]
For this reason also, I find the decision
unreasonable.
VIII.
Conclusion
[57]
Mr. Abeleira is a stateless person with no
ability to apply for permanent residence to Canada from abroad and no country to
which he can be removed. He faces an indefinite period of legal limbo in
Canada. While that situation may or may not warrant H&C relief, the Officer
failed to examine it. Instead, he looked at individual issues of establishment
and hardship or risk without acknowledging the elephant in the room – it is likely
impossible to deport Mr. Abeleira.
[58]
Taken cumulatively, it is not at all clear that
the Officer truly gave Mr. Abeleira’s H&C Application the analysis and
thought it deserved. As Justice Brown put it in Marshall, I find that I
do not have some reason to believe that the Officer considered not just
hardship, but humanitarian and compassionate factors in the broader sense. It
is my view that the Officer failed to consider important factors, overlooked
key evidence and made findings contrary to the evidence.
[59]
For the foregoing reasons, the decision is not
reasonable. It must be set aside and the matter returned once again for
redetermination by a different officer.
[60]
The parties submit and I agree that this is a
very fact specific case and no serious question of general importance arises.
IX.
Mr. Abeleira’s Request for Direction by the
Court
[61]
At the conclusion of the hearing counsel for Mr.
Abeleira asked that the Court issue specific directions that on a redetermination
all the evidence be considered. While counsel said he did not request a
direction that the H&C Application be granted, he did say he was seeking
one of two possible directions:
1. Direct that the redetermination be conducted within a certain time;
or,
2. Indicate that this is a compelling case and there is nothing
preventing a positive H&C determination.
[62]
In the written submissions I requested
post-hearing, counsel for Mr. Abeleira revised his position and has requested
that the direction compel the next officer to grant the application because, he
submitted, the undisputed facts and circumstances of this case clearly show
sufficient hardship to satisfy the requirements of section 25 of the IRPA,
and are sufficiently compelling to warrant such a direction.
[63]
In the alternative, counsel asks that the Court
indicate that the facts present an extremely compelling case and that, on
redetermination, those views of the merits be taken into account.
[64]
In support of those arguments counsel relies on
two decisions of this Court: Tran v Canada (Citizenship and Immigration),
2007 FC 1249 [Tran], a decision of Madam Justice Simpson and Kargbo v
Canada (Citizenship and Immigration), 2011 FC 469 [Kargbo], a
decision of Mr. Justice Russell.
[65]
The Minister objected to any directed remedy
both at the hearing and in written post-hearing submissions on the basis that
it would fetter an Officer’s discretion. The Minister relies upon jurisprudence
of the Federal Court of Appeal that to direct the outcome is an exceptional
power that should be exercised only in the clearest of circumstances and it
will rarely be the case when the issue in dispute is essentially factual in
nature: Canada (Minister of Human Resources Development) v Rafuse, 2002
FCA 31 at para 14 [Rafuse].
[66]
As noted in Rafuse, the basis for the
reluctance of a reviewing court to direct an outcome when returning a matter is
that if a tribunal has omitted to make a finding of fact, including a factual
inference, it should be given the opportunity to complete its work: Rafuse
at para 13.
[67]
Shortly before the hearing of this application,
the Federal Court of Appeal released its decision in Canada (Citizenship and
Immigration) v Yansané, 2017 FCA 48 [Yansané] which answered a
certified question that bears directly on the consideration of the request for
a directed “verdict.” At paragraph 27, the
Federal Court of Appeal’s answer to the reformulated question was:
Question: In the absence of a specific
verdict, what impact do the Federal Court’s directions have on an
administrative decision-maker assigned to re-determine the case?
Answer: The administrative decision-maker to
whom the case is returned must always comply with the reasons and findings of
the judgment allowing the judicial review, as well as with the directions and
instructions explicitly stated by the Federal Court in its judgment.
[68]
The reformulated question reduced the
original certified question from addressing “findings
of fact and directions” to simply “directions.”
[69]
This Court often returns matters to a tribunal
indicating that it should make a redetermination “in
accordance with these reasons.” Mr. Justice de Montigny in Yansané
found that the reference to another immigration officer for redetermination “in accordance with these reasons” does not give
instructions to the new officer. In fact, the words merely reiterate the
well-known principle that an administrative decision-maker must comply with the
decision of a superior court in applying the principle of stare decisis.
[70]
Specifically, it was held at paragraph25 that “it matters little whether the judgment allowing an
application for judicial review contains such a statement; it goes without
saying that an administrative tribunal to which a case is referred back must
always take into account the decision and findings of the reviewing court,
unless new facts call for a different analysis.”
[71]
What is further clarified by Yansané is
that “only instructions explicitly stated in the
judgment bind the subsequent decision-maker; otherwise, the comments and
recommendations made by the Court in its reasons would have to be considered
mere obiters, and the decision-maker would be advised to consider them but not
required to follow them:” Yansané at para 19 (my emphasis).
[72]
The reason for this restrictive approach and
warning is that issuing directions or instructions departs from the logic of a
judicial review and may go against Parliament’s desire to give administrative
tribunals responsibility for ruling on matters, particularly those involving determining
eligibility and weighing of evidence: Yansané at para 18.
[73]
While I am very mindful of and sympathetic to
the legal limbo within which Mr. Abeleira finds himself, I am satisfied
that this matter will turn on the facts once they are properly considered. It
is not the job of this Court to substitute its view of the facts and direct an
outcome when there are facts yet to be determined on a full evidentiary record.
[74]
I do, however, strongly urge the Minister to
come to grips with whether there is a country to which Mr. Abeleira may be
deported under subsection 241.(1) of the IRPA, so that on
redetermination there is no need for speculation. If there is no such country, then
I strongly urge the Minister and Mr. Abeleira to engage in meaningful
discussions to try to find a way to resolve his application without the ongoing
intervention of the Court.
[75]
Furthermore, the Court is not in a position to
dictate when the redetermination should occur as that is a scheduling matter
for the parties generally, which also requires a consideration of the workload
of the immigration officers. I acknowledge that in Kargbo, Justice
Russell set a short time period (7 days from the date of his judgment); however
the circumstances there were that the Minister agreed that there were no
factors that might prevent a positive determination. Sadly, that is not
currently the case for Mr. Abeleira.
[76]
The last redetermination of this matter took
place within 8.5 months of the date of Justice LeBlanc’s decision. I would
expect, therefore, that it would be reasonable to have this next redetermination
conducted well within a similar time period.
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