Federal Court Decisions

Date: 20050624

Docket: IMM-201-05

Citation: 2005 FC 902

Ottawa, Ontario, this 24^th day of June, 2005

Present:           The Honourable Mr. Justice Mosley                                   

BETWEEN:

                                                       AHMAD HASSANZADEH

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The question in this application for judicial review is whether an inadmissibility hearing must be adjourned where an application for Ministerial relief is pending.

[2]                The applicant, Mr. Hassanzadeh, is an Iranian citizen who arrived in Canada in September 1993 and submitted a refugee claim. The claim was denied on the ground that he had status in Austria equivalent to nationality that would allow him to live in that country. In December 1996 he married a South Korean national. They submitted an application for permanent residence on humanitarian and compassionate grounds in April 1997 and were advised in September of that year that the application was approved in principle. Eight years later the application has yet to be completed.

[3]                On June 2, 2004, the Minister issued a report under under subsection 44(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") alleging that the applicant was inadmissible on grounds of national security under paragraph 34(1)(f) and an inadmissibility hearing was then scheduled for February 7, 2005 by the Immigration Division of the Immigration and Refugee Protection Board (the "Board").

[4]                Paragraphs 34(1)(a), (b), (c) and (f) reads as follows:

[5]                Mr. Hassanzadeh filed a request for relief under IRPA subsection 34(2) with the respondent Minister. The request was subsequently forwarded to the Minister of Public Safety and Emergency Preparedness, as such requests are now under her jurisdiction.

[6]                Subsection 34(2) states:

[7]                On December 9, 2004, the applicant requested an indefinite postponement of the inadmissibility hearing because of the pending subsection 34(2) request. Submissions were filed for and against an adjournment. The request was denied on December 29, 2004. The inadmissibility hearing did not proceed on February 7, 2005 due to the unavailability of the Minister's counsel and has been set down for rescheduling.

Argument

[8]                The applicant argues that the Board lacks jurisdiction to proceed with a subsection 34(1) inadmissibility determination where a subsection 34(2) application has been filed with the Minister. Thus, the Board erred in refusing to postpone the hearing indefinitely pending the Minister's decision.

[9]                In his written submissions, the applicant also took issue with the Board's reasons for the decision and alleged failure to take into account the long delay in processing the H & C application but those issues were abandoned at the hearing. I do not need to consider whether the decision to refuse the adjournment meets the standard of reasonableness that the content of a procedural decision would otherwise require: Baker v. Canada (Minister of Citizenship and Immigration), [1992] 2 S.C.R. 817. The sole issue before me, therefore, is whether the Board had the jurisdiction to refuse to adjourn the proceedings.

[10]            The applicant cites four decisions that arose under the former Immigration Act, R.S.C. 1985, c. I-2: Ramawad v. Canada (Minister of Manpower and Immigration), [1978] 2 S.C.R. 375; Qi v. Canada [1995] F.C.J. No.1615 (T.D.); Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 and Canada (Minister of Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337 (FCA).

[11]            In Ramawad, Pratte J.found that the authority of a special inquiry officer to withhold an employment visa and deport the applicant under paragraph 3D(2)(b) of the Immigration Regulations was suspended by paragraph 3G(d) which permitted the Minister to make a discretionary determination on exemption from paragraph 3D(2)(b) because of special circumstances. The officer's inquiry had to be adjourned until that determination was made.

[12]            Ramawad was applied by Justice Reed of the Federal Court Trial Division in Qi to an analogous provision of the former Act, subsection 27(4). Reed J. found that the inquiry officer had a duty to adjourn an inquiry and potential deportation order concerning an overstayed visitor's visa pending the exercise of the Deputy Minister's discretion to grant an exemption under subsection 27(2.1).

[13]            In Prassad, an appellant who had been deported from Canada and returned without obtaining ministerial consent made an application for a Minister's permit to authorize her stay under paragraph 37(1)(b) of the former Act. A deportation order was issued before the ministerial decision had been rendered. The Supreme Court distinguished Ramawad, holding that the Minister's permit under 37(1)(b) was a separate and alternative remedy, rather than one specifically tied to the deportation proceedings under subsection 27(3). Thus nothing in the scheme of the Act required the adjudicator to adjourn the proceedings.

[14]            The applicant argues that the provisions at issue in these proceedings are analogous to those considered by the Supreme Court in Ramawad and by the Federal Court in Qi and distinguishable from the separate and alternative remedy dealt with in Prassad.

[15]            In Adam, the Federal Court of Appeal determined that once a finding of inadmissibility was made under paragraph 19(1)(l) of the former Act, a ministerial exemption, under the same provision, was no longer available to the applicant. Mr. Hassanzadeh submits that Adam stands for the proposition that a request for an exemption is a condition precedent to a determination of inadmissibility.

[16]            The applicant argues that there are a number of factors that support this position. First, as a matter of policy, it would be a waste of the resources of the Board to convene a hearing on the question of inadmissibility if the Minister could overrule it later. Second, a finding of inadmissibility would be prejudicial to the applicant when there may be other considerations that militate in favour of an exemption. The determination would remain in place notwithstanding a positive decision by the Minister: Ali v.Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No.1416.

[17]            Further prejudice to the applicant would arise from the fact that should the Board find him to be inadmissible his work permit would be rendered invalid, pending a decision on his application for relief: IRPA section 48 and section 209 of the Immigration Regulations. IRPA is silent as to what should be done with someone who is awaiting the exercise of Ministerial discretion. Finally, the applicant fears losing the H & C approval that he and his wife received in principle. No prejudice to the respondent arises from delaying the proceedings. The timing of a Ministerial decision on the exemption request is entirely under the control of the respondent.

[18]            The respondent submits that a decision whether or not to adjourn a proceeding is an interlocutory matter entirely within the discretion of the Board: Prassad, supra. The Board has a statutory duty to hold a hearing when a section 44 report has been filed. The Minister's exemption authority under subsection 34(2) is not integral to the Board's decision under subsection 34(1). An adequate alternative remedy is open to the applicant if the hearing proceeds and results in a negative decision. The applicant may then seek judicial review of the decision: Ali, supra.

[19]            It is reasonable, the respondent contends, for the Minister to wait for the outcome of the inadmissibility hearing under subsection 34(1). That proceeding will allow for an independent determination of the facts based on the evidence, in an adversarial setting. There is no explicit language in section 34 requiring an adjournment to be granted when an application for ministerial relief is filed.

[20]            With respect to the effect of an adverse determination pending the outcome of the Minister's decision, the respondent points to the terms of Chapter IP-10 of the respondent's immigration procedures manual indicating that any final decision on an application for permanent residence and any enforcement action on a removal order should be suspended until the application for relief is decided.

Analysis

[21]            Neither party made submissions on the standard of review to be applied in these proceedings. On a pragmatic and functional analysis, jurisdiction is commonly found to be a question of law requiring the standard of correctness: Poshteh v. Canada (Minister of Citizenship and Immigration) (2005) 331 N.R. 129 (F.C.A.); Davies v. AG Can 2005 (F.C.A.) 41.

[22]            The applicant's argument rests essentially on the premise that a decision by the Minister under subsection 34(2) is an integral part of the inadmissibility determination under subsection 34(1). The Minister is empowered to conclude that the grounds in subsection 34(1) "do not constitute inadmissibility" if the Minister finds that the applicant does not pose a threat to the national interest. Under paragraph 19(1)(l) of the former Act, the conclusion that a ministerial exemption had to be resolved before the visa officer's decision was supported by the presence of the words "have satisfied" in the excepting language, as was found by the Federal Court of Appeal in Adam, supra.

[23]            Those words or any other language indicating that Parliament intended that the Minister's exemption decision should be made prior to a determination by the Board as to inadmissibility do not appear in IRPA section 34.

[24]            The Federal Court of Appeal recently had occasion to consider whether Adam governs the interpretation of subsection 34(2) in Poshteh v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 602. The Minister had sought reconsideration of a prior decision of the Court ((2005), 331 N.R. 129 ) on the ground that a statement in that decision was inconsistent with Adam, as it indicated that the applicant could try to satisfy the Minister that his presence in Canada was not detrimental to the national interest following an inadmissibility hearing.

[25]            On the motion for reconsideration, the Court of Appeal found that there was no longer any restriction in the statutory language as to when the Minister's discretion could be exercised. At paragraph 10 the Court stated:

There is simply no temporal aspect to subsection 34(2). Nothing in subsection 34(2) appears to fetter the discretion of the Minister as to when he might grant a ministerial exemption. Because the decision in Adam was based on a different tense of verbs in a different provision, Adam is not authority for the interpretation the Minister places on subsection 34(2).

[26]            The applicant argues that the Court of Appeal did not decide the procedural issue. He says that he is entitled to an answer from the Minister before he gets the Board's decision. The court should not assume that the Minister will arrive at a negative decision.

[27]            Justice MacTavish, in Ali, supra, held that a subsection 34(1) finding is a separate and discrete determination of inadmissibility and is not tied to the exercise of the Minister's discretion under subsection 34(2). At paragraph's 42 and 43 she arrived at the following conclusions:

A sub-section 34(2) inquiry is directed at a different issue to that contemplated by sub-section 34(1). The issue for the Minister under sub-section 34(2) is not the soundness of the officer's determination that there are reasonable grounds for believing that an applicant is a member of a terrorist organization - that determination will have already been made. Rather, the Minister is mandated to consider whether, notwithstanding the applicant's membership in a terrorist organization, it would be detrimental to the national interest to allow the applicant to stay in Canada.

In other words, sub-section 34(2) empowers the Minister to grant exceptional relief, in the face of a finding that has already been made by the immigration officer.

[28]            I agree with Justice Mactavish that a subsection 34(2) exemption decision would normally follow a determination of inadmissibility under subsection 34(1); however, that is not mandated by the statute. There may be exceptional reasons for seeking an exemption prior to an inadmissibility decision. In most instances, it would be preferable for the evidence to be presented and the fact finding to be conducted by the Board before the Minister considers an application for discretionary relief.

[29]            While recognizing that there would be adverse effects of a determination of inadmissibility that might be avoided by a positive ministerial decision, I find nothing procedurally unfair in having the Board's determination precede the Minister's consideration of the exemption request.

[30]            The application is therefore dismissed. Mr. Hassanzadeh is not entitled to have a decision from the Minister before the Immigration Division holds his admissibility hearing or makes a ruling on his admissibility.

[31]            The applicant has proposed the following question for certification:

Does the Immigration Division have jurisdiction to find that a permanent resident or foreign national is inadmissible on security grounds under section 34 of the Immigration and Refugee Protection Act where an application for Ministerial relief under subsection 34(2) is outstanding?

[32]            The respondent opposes certification of a question relating to the interpretation of section 34 but has offered an alternative version of the applicant's question for the court's consideration.

Is the Immigration Division required to adjourn every admissibility hearing indefinitely and until such time as an application for Ministerial relief that has been submitted is determined?

[33]            The Court of Appeal's decision on the reconsideration motion in Poshteh, supra is, in my view, determinative of the question that the applicant wishes to have certified and I decline, therefore, to certify it.

                                                     

ORDER

                                                     

THIS COURT ORDERS that this application is dismissed and no question is certified.

            " Richard G. Mosley "

             F.C.J.

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                  IMM-201-05

STYLE OF CAUSE: AHMAD HASSANZAHEH

AND

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 Vancouver, British Columbia

DATE OF HEARING:                                   June 14, 2005

REASONS FOR ORDER

AND ORDER BY : The Honourable Mr. Justice Mosley

DATED:                     June 24, 2005

APPEARANCES:

Adrian Huzel                                                     FOR THE APPLICANT

Helen Park                                                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

ADRIAN HUZEL                                             FOR THE APPLICANT

Embarkation Law Group

Vancouver, British Columbia

JOHN J. SIMS, Q.C.                                       FOR THE RESPONDENT

Deputy Attorney General of Canada

Vancouver, British Columbia