Federal Court Decisions

     IMM-1701-95

B E T W E E N:

     PHILMAN ABU RAMAN,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

     This application for judicial review attacks a decision of senior immigration officer Anabela Pereira ("the SIO") dated June 30, 1995, wherein she determined that she did not have jurisdiction to reopen the inquiry conducted by senior officer Joseph Waisberg pursuant to subsection 23(4) of the Immigration Act¹, ("the Act"), wherein he issued an exclusion order against the applicant.

     The applicant arrived in Canada on June 12, 1995, from Nigeria travelling on a Zimbabwean passport in the name of Sotsha Moyo. He informed the immigration officer that the purpose of his visit was to see a friend in Montreal for a week. He was unable to answer several basic questions about Zimbabwea, the country where he stated his life was centered. When confronted with his lack of knowledge about Zimbabwea, the applicant answered that he was born there but lived most of his life in Nigeria. His passport appeared to be fraudulent. When asked if he wished to make a refugee claim, he responded negatively. Upon being advised that he was being excluded, he admitted the Zimbabwean passport was not his. He confessed his real name was Philman Abu Raman, he was a flight lieutenant in the Nigerian air force and he wanted to claim refugee status.

     So as to justify the false information that he originally gave to the immigration officer, the applicant explained that a passenger on the plane told him that if he claimed refugee status he would be returned immediately to Nigeria.

     There are two basic issues which arise from this application for judicial review: first, whether a SIO has jurisdiction to reconsider a decision to exclude a person from Canada under section 23 of the Act; second, whether the principles of fundamental justice, or the Canadian Charter of Rights and Freedom ("the Charter"), require the SIO to reconsider his exclusion decision where the applicant makes a refugee claim after the exclusion order has been rendered.

1.      The arguments of the applicant

     The applicant argues that the SIO can reopen an inquiry when there is an allegation of a violation of his Charter rights. The Federal Court has stated that when a Charter violation occurs, an inquiry may be reopened² especially when it would be a denial of fundamental justice not to do so³.

     The rights to counsel is engaged under the amended statutory scheme which allows the SIO, at a subsection 23(4) inquiry, to make a final determination as to exclusion. It is conceded that the right to counsel during a subsection 23(4) inquiry has been denied by the Supreme Court of Canada in Dehghani v. Canada (M.E.I.)⁴ but the section and the overall scheme of the Act has changed significantly. The nature and scope of the role of a SIO are now one of a decision maker.

     The right to life, liberty and security of the person are also engaged under the amended statutory scheme. In the instant case, the applicant may be sent back to Nigeria without having had the opportunity to make a refugee claim before the Refugee Board. This violates the Charter and is contrary to the principles of fundamental justice⁵.

     In fact, counsel for the applicant has served a notice of constitutional question to the Attorneys General of Canada, of the ten provinces, and to the Territorial Department of Justice to the effect that the applicant's section 7 Charter interests are affected by the application of section 23 of the Act; his right to liberty is denied by detention before the senior immigration officer at the Port of Entry; his right to security of the person is prejudiced by the risk that he will be returned to a country from which he fears persecution; his right to counsel is denied in that he was not informed of his right, nor given the opportunity to exercise it; and his rights to life, liberty and security of the person are threatened by the consequences of an adverse subsection 23(4) determination.

     According to the applicant, the SIO is compelled to act according to the duties of fairness and the principles of fundamental justice. Individuals acting in a quasi-judicial or administrative capacity must respect the duties of fairness⁶. In the phase prior to the decision, when the SIO gathers information, he or she is acting in a quasi-judicial capacity. The decision of the SIO is directly related to the rights of the individual. If the person stays in Canada, for example, he or she gets all the rights of the average Canadian. On the other hand, if this person is sent back to his country, he may have all of his rights infringed upon⁷.

     The common law notion of functus officio does not apply in an administrative situation where there is no right of appeal. Once a hearing is complete it cannot be heard again; this is the notion of functus officio. There are however exceptions to this rule, and the applicant argues that the case at bar is one of these exceptions. When there is an existing administrative remedy in a given situation, it might not be appropriate to enforce functus officio⁸. In such situations, the decision maker may, if he wishes, hear new evidence and revise the decision. In the present case, the applicant asked to present his fears of returning to Nigeria and to make a refugee claim.

     The applicant canvassed two supreme Court of Canada decisions, Grillas v. M.M.I.⁹, and Chandler v. Alberta Association of Architects¹⁰, wherein the Court considered the nature of the proceedings and the statutory scheme so as to determine if there were discernable policy reasons for inferring an intention on the part of Parliament to allow for reopening. The Court concluded that the humanitarian nature of the appeal at issue in the Grillas¹¹ case itself was an indication that the Immigration Appeal Board had jurisdiction to reopen a finalized appeal in the absence of legislation to that effect.

     The applicant also argues that the Federal Court of Appeal has recognized that, in the immigration context, there are instances where reopening is appropriate under both the common law and the Charter¹². Further, the Court has recognized that there will be instances in respect of refugee proceedings where compliance with the Charter will mandate that reconsideration be given to a finalized proceeding or that an extension of time be granted for late filing for refugee claims.

     In James v. M.E.I. and Bains v. M.E.I.¹³, the applicants had sought to file applications for redetermination of their refugee claims at the Immigration Appeal Board when they were out of time to do so. The Court indicated that the Board was in error in refusing to entertain the applications and said that "it must look at the particular circumstances of each case to determine whether the applicants stand to be deprived of a Charter protected right".

     In Kaur v. M.E.I.¹⁴, the applicant had been ordered deported from Canada at an inquiry before an adjudicator, without having claimed protection as a convention refugee. The Federal Court of Appeal applied section 7 of the Charter and indicated that "the adjudicator had jurisdiction to determine whether, in the circumstances of this case, fundamental justice would allow this applicant to claim refugee status outside the time frame set out in the Immigration Act, 1976" (at p. 11).

     As to right to counsel, the applicant submits that he was entitled to be advised of his right to counsel prior to the issuance of the exclusion order and that his rights under subsection 10(b) and section 7 of the Charter were breached by the failure of the SIO so to advise him.

2.      The arguments of the respondent

     The respondent conceded that the principles of functus officio ought not to be applied where there are indications in the enabling statutes that a decision can be reopened such as in Chandler¹⁵. In Grillas¹⁶, the enabling statutes of the Immigration Appeal Board contained a section which gave the Board broad discretionary powers to allow a person to remain in Canada who was inadmissible under the Act. The Supreme Court of Canada viewed this "equitable jurisdiction" of the Board under subsection 15(1) of the Act as a continued jurisdiction.

     However, there are no indications in the Act that the SIO may reconsider or reopen his decision to exclude. Nor are there any provisions that clothe the SIO with an equitable jurisdiction that would continue his jurisdiction after the exclusion order. To the contrary, subsection 44(1) specifically precludes the SIO from reconsidering or reopening a decision to exclude. The key subsection reads as follows:

44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer.

(my emphasis)

     In the instant case, the applicant is in Canada, a removal order has been made against him, but not executed, and an appeal from that order has not been allowed. Thus, the applicant is barred from seeking a refugee determination.

     As to the Charter, the respondent states that the submissions made by the applicant to the SIO made no assertion that any provision of the statute infringed his Charter rights, but rather boldly argued that an allegation of a violation of his Charter rights allowed the SIO to reopen the decision. Subsection 52(1) of the Constitution Act, 1982 provides that the Constitution of Canada is the supreme law of Canada and that any law inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect. But there is no assertion by the applicant that a provision of the Act infringes the Charter right of the applicant. Therefore, subsection 52(1) of the Constitution Act, 1982 does not apply.

     Moreover, no administrative tribunal is vested with an independent source of jurisdiction pursuant to subsection 52(1) of the Constitution Act, 1982. That subsection, by itself, does not confer the power to an administrative tribunal to find a legislative provision to be inconsistent with the Charter. Rather, the inquiry must begin with an examination of the mandate given to the particular tribunal by the legislative authority¹⁷. The applicant has not demonstrated that any powers under the Act have been given to the SIO. Consequently, the SIO is not a Court of competent jurisdiction to grant section 24 Charter remedies.

     The cases of James v. M.E.I. and Baines v. M.E.I.¹⁸ referred to by the applicant are distinguishable from the instant case because in those cases the decision maker was the Immigration Appeal Board, a court of record, and there were provisions in its enabling statute that allowed for a redetermination of the applicant's claim and provisions which allowed the Board to abridge time limits. Moreover, the motions to reopen time limits were a mere question of procedure, whereas in the case at bar it is to reopen for the purpose of claiming refugee status, a very substantive matter.

     The Kaur¹⁹ decision is also distinguishable in the sense that the decision maker was an adjudicator and the enabling statute allowed for the reopening of an inquiry at any time by the adjudicator to hear and receive additional evidence.

     The respondent also argues that the right to counsel did not arise until the exclusion order was pronounced. There is no evidence that demonstrates that the applicant was deprived of liberty by physical strength as he appeared willingly and voluntarily sought admission to Canada. He chose to submit to the procedure which he followed for entering the country, which procedure involved questioning at a primary or secondary examination. He did not at any time withdraw his request to seek entry into Canada but, in spite of the questioning, continued to seek admission. While he could not have left the airport to enter Canada, this was because he had not yet been admitted to this country, not because he was detained.

     The applicant was not involved in a criminal process, did not enjoy any protective right against self-incrimination and was not facing "custodial interrogations". He was merely involved in seeking admission to Canada as a visitor and was under an obligation to truthfully answer all questions put to him under subsection 12(4) of the Act: thus, his right to counsel did not arise at that stage.

     After the exclusion order, he was properly informed of his right to counsel and other rights.

3.      Analysis

     In my view, subsection 44(1) of the Act clearly precludes the SIO from reopening a decision to exclude. Once that decision is made a refugee may not seek a determination of a refugee claim unless an appeal from that order has been allowed. The decisions relied upon by the applicant are distinguishable in the sense that they were not made in the context of a SIO acting under subsection 44(1) of the Act. Thus, the SIO does not have jurisdiction either at common law or pursuant to section 7 of the Charter and subsection 52(1) of the Constitution Act, 1982 to consider reopening a hearing. It follows that it is not necessary to decide whether or not there has been a breach of natural justice as there was no obligation on the part of the senior immigration officer at that stage to advise the applicant of a right to counsel. He was asked if he wished to make a refugee claim and he answered in the negative. As to the breach of the applicant's Charter rights, although the SIO had no jurisdiction to consider such a breach, I am of the view that the applicant has not established that he was deprived at that time of his right to liberty and security of the person under section 7 of the Charter. Of course, he was not allowed to enter the country but he had no right of entry at that stage. He might have been detained at the airport so as to prevent his illegal entry into Canada but there is no evidence that he was not free to return to Nigeria or Zimbabwe or to whatever country whence he came.

     Counsel for both parties have submitted arguments pro and con certification. Since the reopening issue is the primary issue, I will adopt the three questions for certification submitted by counsel for the applicant, as follows:

1. Does a senior immigration officer have jurisdiction, either at common law or pursuant to section 7 of the Charter of Rights and Freedoms and section 52(1) of the Constitution Act, 1982, to consider reopening a hearing which resulted in the issuance of a removal order in order for a person to claim protection as a Convention refugee?

2. If a senior immigration officer does have jurisdiction to reopen is this jurisdiction limited to instances where there has been a breach of natural justice in respect of the original decision?

3. If it is so limited, was there a breach of natural justice or the principles of fundamental justice in the failure of the senior immigration officer to advise the applicant of a right to counsel prior to conclusion of the hearing before the senior immigration officer which resulted in the issuance of a removal order?

     Consequently, this application for judicial review is dismissed.

O T T A W A

December 31, 1996

    

     Judge

__________________

¹      R.S.C. 1985, c. I-2, as amended.

²      Kaur v. M.E.I. (1989), 10 Imm.L.R. (2d) 1 (Fed. C.A.).

³      Mattia v. M.E.I., [1987] 3 F.C. 492; Longia v. Canada, [1990] 3 F.C. 288 (F.C.A.) and Bains v. M.E.I. (1989), 8 Imm.L.R. (2d) 165 (F.C.A.) at p. 169.

⁴      [1993] 1 S.C.R. 1053.

⁵      Singh et al. v. Canada (M.E.I.), [1985] S.C.R. 177.

⁶      Martineau v. Matsqui (1979), 106 D.L.R. (3d) 385 (S.C.C.).

⁷      supra, no. 5.

⁸      Chandler v. Alberta Association of Architects (1989), 62 D.L.R. (4th) S.C.C. 577; Grillas v. M.M.I. (1977), 23 D.L.R. (3d) S.C.C. 1.

⁹      supra, no. 8.

¹⁰      supra, no. 8.

¹¹      supra, no. 8.

¹²      M.E.I. v. Clamsey (1988), 5 Imm.L.R. (2d) 159 (F.C.A.); Castro v. M.E.I. (1988), 5 IMM.L.R. (2d) 87 (F.C.A.).

¹³      supra, no. 3.

¹⁴      supra, no. 2.

¹⁵      supra, no. 8.

¹⁶      supra, no. 8.

¹⁷      Tétreault-Gadoury v. Canada (E.I.C.), [1991] 2 S.C.R. 22 at p. 32.

¹⁸      supra, no. 3.

¹⁹      supra, no. 2.