Federal Court Decisions

Date: 20060411

Docket: IMM-6457-05

Citation: 2006 FC 473

BETWEEN:

LAI CHEONG SING

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

AND

Docket: IMM-6460-05

BETWEEN:

TSANG MING NA

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT

[1]         Lai Cheong Sing and Tsang Ming Na are citizens of the People's Republic of China and were husband and wife. They are now divorced. Each seeks judicial review of what is described to be a decision that the pre-removal risk assessment (PRRA) each has applied for will be decided by the Minister of Citizenship and Immigration (Minister) or his delegate. Each seeks the following relief:

certiorari quashing the decision of the respondent that the application for pre-removal risk assessment that the applicant may make must be made to the respondent, and a declaration that the application for pre-removal risk assessment that the applicant may make must be made to the Federal Court of Canada.

[2]         The facts and submissions underlying each application for judicial review are identical. Therefore, these reasons apply to both pending applications for judicial review and reference in these reasons to the "applicant" will be understood to refer to each applicant.

FACTUAL CIRCUMSTANCES

[3]         The underlying facts are not in dispute.

[4]         In 1999 Mr. Lai, his wife and their three children arrived in Canada. Subsequently they all claimed status as Convention refugees. On June 21, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) found the family not to be Convention refugees. Mr. Lai and his wife were found to be excluded from the definition under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (Convention). This article makes the Convention non-applicable to any person with respect to whom there are serious reasons for considering that the person has committed a serious non-political crime outside of Canada prior to their arrival in Canada. Each member of the Lai family was found not to be included in the definition of Convention refugee because the fear they claimed, if returned to China, was found not to be persecution on the basis of a ground specified in the definition.

[5]         Three things are to be noted in respect of the hearing before the CRDD. First, the Minister intervened at the hearing and presented evidence. Of relevance to this proceeding is that the Minister adduced evidence in the form of a diplomatic note provided by the People's Republic of China in which the Chinese government undertook that, if returned to China, neither applicant would be sentenced to death by any criminal court in China, nor would they be subject to torture or other cruel, inhumane or degrading treatment or punishment. The Minister also made submissions to the CRDD concerning the diplomatic note; in particular, the Minister submitted that:

28.        The Diplomatic Note is the ultimate assurance to Lai Cheong Sing and Tsang Ming Na guaranteeing their safety and well being, and completely diffuses any argument they have put forward they will be subject to the death penalty or any form of torture, and other cruel, inhuman or degrading treatment or punishment.

[6]         The second thing to be noted in respect of the decision of the CRDD is that the only finding made by the CRDD was that neither applicant was a Convention refugee. The CRDD did not consider any risk to torture or cruel or inhumane treatment under what are now referred to as the "consolidated grounds" contained within section 97 of the Immigration and Refugee and Protection Act, S.C. 2001, c. 27 (Act) because the CRDD had no jurisdiction to do so. This jurisdiction was only conferred upon the Refugee Protection Division of the Immigration and Refugee Board when the Act, including section 97, came into force on June 28, 2002.

[7]         The third and final thing to be noted is that the effect of the decision of the CRDD was that the conditional departure orders which came into effect on the filing of the applicants' claims to Convention Refugee status became removal orders. The effect of those removal orders was statutorily stayed while the CRDD's decision was subject to judicial review.

[8]         An application for judicial review of the decision of the CRDD was dismissed by this Court. That decision was upheld by the Federal Court of Appeal and on September 1, 2005 an application for leave to appeal in respect of the decision of the Federal Court of Appeal was dismissed by the Supreme Court of Canada. In consequence, the removal orders were, as of that date, no longer stayed and were enforceable removal orders.

[9]         On October 12, 2005, an officer of the Canada Border Service Agency (enforcement officer) met with the applicants and their counsel and provided each applicant with an amended application for a PRRA, an amended notification regarding the PRRA, and a guide to applying for a PRRA. The amended applications advised the applicants that they might apply for protection to the Minister. On those PRRA applications, the issue to be determined for the first time is whether each applicant is a person described in section 97 of the Act. Section 97 provides:

[10]       Subsequently, each applicant completed a PRRA application, and the applications were filed, together with substantial documentary evidence and extensive submissions. Included in those submissions were the same submissions that are now addressed to this Court with respect to the existence of a reasonable apprehension of bias on the part of the Minister and his delegate.

THE ISSUE RAISED BY THE APPLICANTS

[11]       Each applicant submits that the scope of the diplomatic assurances provided by the People's Republic of China is completely co-extensive with the risks that are encompassed within section 97 of the Act. Thus, each applicant swears that they are convinced that in light of the diplomatic assurances from the government of China, the Minister's position with respect to these assurances before the CRDD, and what is said to be a letter from then Minister Alan Rock to counsel for the Minister, the mind of the Minister on each PRRA application is already made up. The applicants therefore submit that the requirement of the Act that the PRRA application be determined by the Minister is constitutionally inoperative, or is of no force or effect under section 52 of the Charter as a violation of section 7 of the Charter. Thus, this Court is asked to determine each PRRA application.

[12]       Notices of a constitutional question raising this issue were filed and served as required, but no Attorney General responded.

CONSIDERATION OF THE ISSUE

[13]       It is beyond dispute that each applicant is entitled to have his or her PRRA application determined by an officer that is free from any reasonable apprehension of bias, or perception thereof. That said, it is within the jurisdiction of the Court on an application for judicial review alleging bias to refuse relief on the ground of prematurity (see: Air Canada v. Lorenz, [2001] 1 F.C. 494 (T.D.)). Here, the applicants have properly put their concerns as to bias on the record at the earliest opportunity. They have not, however, pointed to any authority to support the submission that an allegation of bias, even when asserted to rise to the level of a breach of rights guaranteed by section 7 of the Charter, by itself justifies determination of the issue of bias before the submissions on bias are considered by the decision-maker. The following factors, in my view, militate against determining the bias issue now, in this proceeding.

[14]       First, it is conceded that the enforcement officer whose "decision" is under review lacked any discretion or authority to determine who should determine the PRRA applications. The enforcement officer, when notifying the applicants of their right to apply for a PRRA, performed a mandatory processing step for which the officer had no discretion, except with respect to the timing of the notification. No reviewable error was committed by the officer to justify the relief sought of "certiorari quashing the decision of the respondent that the application for pre-removal risk assessment [...] must be made to the respondent".

[15]       Second, and related to this point, is the relief which this Court may grant in the present proceeding. On a judicial review of a negative PRRA decision the Court would possess jurisdiction, in an exceptional case, to remit the PRRA decision to an officer with directions which would be so specific as to essentially direct a particular decision by a PRRA officer (see: Ali v. the Canada (Minister of Employment and Immigration), [1994] 3 F.C. 73 (T.D.)). Conversely, I have not been satisfied that in this proceeding the Court has jurisdiction not simply to supervise the Minister's decision, but rather to preempt that decision and in fact make the decision the Act requires the Minister to make.

[16]       In this regard, while the applicants seek relief under section 52 of the Charter, that section 52 does not seem to apply because the applicants do not argue that the relevant provisions of the Act are inconsistent with the provisions of the Constitution. Rather, they argue that on the facts of their case the requirement that the Minister determine the PRRA applications should not operate. While remedies may be granted pursuant to section 24 of the Charter, that section has been held not to confer jurisdiction on any court. Thus, in R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 Chief Justice McLachlin, writing for the Court, observed at paragraphs 22 to 24 as follows:

22         The final proposition is that s. 24 should not be read so broadly that it endows courts and tribunals with powers that they were never intended to exercise.    The jurisdictions of Canada's various courts and tribunals are fixed by Parliament and the legislatures, not by judges: Mills, supra, at p. 952 (per McIntyre J.). It is Parliament or the legislature that determines if a court or tribunal is a "court of competent jurisdiction": Weber, supra, at para. 65. Legislative intention is the guiding light in identifying courts of competent jurisdiction.

23         As McIntyre J. cautioned in Mills, supra, at p. 953, the Charter was not intended to "turn the Canadian legal system upside down".    The task facing the court is to interpret s. 24(1) in a manner that provides direct access to Charter remedies while respecting, so far as possible, "the existing jurisdictional scheme of the courts": Mills, at p. 953 (per McIntyre J.); see also the comments of La Forest J. (at p. 971) and Lamer J. (at p. 882) in the same case; and Weber, supra, at para. 63.    The framers of the Charter did not intend to erase the constitutional distinctions between different types of courts, nor to intrude on legislative powers more than necessary to achieve the aims of the Charter.

24         In summary, the task of the court in interpreting s. 24 of the Charter is to achieve a broad, purposive interpretation that facilitates direct access to appropriate and just Charter remedies under ss. 24(1) and (2), while respecting the structure and practice of the existing court system and the exclusive role of Parliament and the legislatures in prescribing the jurisdiction of courts and tribunals.    With these guiding principles in mind, I return to the question at the heart of this appeal: when does a court or tribunal possess "power to grant the remedy sought", such that it satisfies the final branch of the Mills test of a court of competent jurisdiction?

[17]       In the present case, I am unable to conclude that Parliament intended for the Court to exercise the Minister's discretion (as opposed to supervising that exercise of discretion) even where a Charter remedy is requested.

[18]       Third, it is not the Act which is alleged to violate the applicants' rights, but only the particular circumstances of their cases. No Charter breach can exist until decisions adverse to the applicants are made, and I am not satisfied that negative results are fore-ordained. The present applications would be rendered moot if the PRRA applications are successful.

[19]       Fourth, even if negative decisions are reached with respect to the PRRA applications, such decisions may be reviewed (upon the granting of leave) by this Court. The allegations of bias can be fully reviewed at that time by the Court, with the benefit of the Minister's delegate's reasons. This prevents any fragmentation of the issue of bias that could otherwise happen if the present applications were dismissed and further allegations of bias were alleged to arise out of the delegate's reasons.

[20]       Fifth, the applicants have completed and submitted their submissions in support of the PRRA applications. I see little hardship or waste to the applicants by allowing the PRRA applications to proceed. This is not a case where an applicant seeks to avoid the expense associated with a lengthy hearing by raising the issue of bias before the hearing proceeds or in the course of the hearing.

[21]       Taking all of these matters into consideration, in the exercise of my discretion the applications for judicial review are dismissed. As the issue of bias must be fully considered by the officer(s) who consider(s) the PRRA applications, I have refrained from any comment with respect to the strength of the applicants' case. It is sufficient to say that their concerns will merit careful consideration.

[22]       Counsel for the applicants posed a number of questions for certification. Given that, on the particular facts of this case, I have exercised my discretion to dismiss the applications on the ground that for a number of reasons it is preferable to have the issue of bias first determined in the context of the PRRA applications, I find no proposed question to be determinative of an appeal and no question to be of general importance. No question will be certified.

"Eleanor R. Dawson"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS:                                         IMM-6457-05, IMM-6460-05

STYLE OF CAUSES:

LAI CHEONG SING v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

AND

TSANG MING NA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Winnipeg, Manitoba

DATE OF HEARING:                       March 28, 2006

REASONS FOR JUDGMENT/JUDGMENT:        DAWSON J.

DATED:                                              April 11, 2006

APPEARANCES:

Mr. David Matas                                                                       FOR APPLICANTS

                                               

Ms. Esta Resnick                                                                       FOR RESPONDENT

SOLICITORS OF RECORD:

David Matas

Barrister and Solicitor

Winnipeg, Manitoba                                                                  FOR APPLICANTS

John H. Sims, Q.C.

Deputy Attorney General of Canada                                          FOR RESPONDENT