Date: 19990602
Docket: IMM-337-98
BETWEEN:
JORGE ALBERTO PORTILLO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY, J.:
[1] The Applicant seeks judicial review of and an order setting aside a decision "to remove the applicant from Canada, first communicated orally to him on January 14, 1998, to a country where the applicant's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion, where no opinion has been formed that the Applicant is a danger to the public, and in addition, where removal is prohibited pursuant to s. 50(1) of the Immigration Act".
[2] The essence of the Applicant's case is that he believes he retained status as a Convention refugee, and that his removal to El Salvador, the country of his nationality and the site of his perceived persecution, was contrary to the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"), in the absence of a proper determination that he was a danger to the public. Moreover, because his removal was in conflict with orders made by the British Columbia Provincial Court it was also said to be precluded by subsection 50(1) of the Act.
[3] The decision of January 14, 1998 was communicated orally that day to the Applicant upon his arrest and detention by immigration officers in preparation for his removal from Canada. Removal was intended to implement a conditional deportation order, dated August 23, 1993, which order the Applicant had earlier appealed unsuccessfully to the Immigration Appeal Board. After his arrest Immigration officers determined that his removal should be stayed pending disposition of Applications for a stay and for clarification of certain relief in relation to the Applicant's rights and his relationship in regard to his children.
[4] Subsequently, custody and access orders in relation to the Applicant's children were made. Then he was advised, by decision of June 23, 1998, that the Minister, said to be acting in accord with subsection 70(5) of the Act, had formed the opinion that Applicant was a danger to the public in Canada. On July 9, 1998, he was informed that he would be removed from Canada for El Salvador on or about August 10, 1998. An application to stay his removal was dismissed on August 7, 1998, after a hearing by the Associate Chief Justice and on that same day the Applicant was removed from Canada.
[5] The parties were permitted to file further memoranda of fact and law to take into account the developments in the case after the filing of the application for judicial review. This was not the only such application on behalf of the Applicant, but this proceeding concerns the decision to remove the Applicant from Canada, a decision implemented before this application was heard on April 14, 1999. No argument was here raised that this application is moot; rather it is accepted that it raises issues concerning the lawfulness of the decision to remove the Applicant, and implicitly the Minister accepts the obligation to facilitate return of Mr. Portillo to Canada if the Court should determine that his removal was unlawful.
The Background
[6] The Applicant is a native and citizen of El Salvador, who, as a result of his involvement in guerilla activities in his homeland during its difficult period of civil unrest, fled to Mexico in 1982 because of his fear of persecution for political reasons.
[7] In Mexico he applied for refugee status at the Canadian Embassy and he was accepted, and sponsored by the Government of Canada. He was granted a record of landing on his arrival in Canada at Vancouver on January 26, 1984.
[8] Subsequent to his landing in Canada the Applicant established a record of criminal activities, principally involving possession of or trafficking in narcotics, which led to a number of fines and brief periods from 1 to 14 days of imprisonment, and to a number of sentences of probation. This record led to an inquiry under the Act, on August 23, 1993, when an adjudicator found the Applicant to be a permanent resident who had been convicted of an offence under an Act of Parliament within the terms of paragraph 27(1)(d)(ii), as it then provided, of the Act. As a result the adjudicator issued a conditional deportation order to the Applicant. At the time of the inquiry, on August 23, 1993, the Applicant made a claim to be a Convention refugee.
[9] Mr. Portillo appealed the deportation order to the Immigration Appeal Board, not in regard to the validity of the order, but rather on the ground that having regard to all the circumstances of the case, the Board in its discretion should determine that the Applicant should not be removed from Canada. On July 29, 1994, his appeal was dismissed.
[10] In the meantime, in January 1994, a Senior Immigration Officer determined that the Applicant was eligible to have his claim to refugee status considered by the Convention Refugee Determination Division, and the claim he had made on August 23, 1993 was referred to the CRDD. On June 28, 1995, by a decision of the CRDD the Applicant was found not to be a Convention refugee, since it was determined he did not have a reasonable possibility of persecution in El Salvador. Moreover, it was found that he was excluded from Convention refugee status pursuant to Articles 1F(b) and 1F(c) of the United Nations Convention Relating to the Status of Refugees.
[11] After the CRDD decision was rendered, Mr. Portillo was notified in May 1997 that the Immigration department would request an opinion from the Minister of Citizenship and Immigration pursuant to subsection 53(1) of the Act that the Applicant was a danger to the public in Canada. That section, so far as it is relevant here, provides:
| ... no person who is determined under this Act or the regulations to be a Convention refugee, ... shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless |
. . .
| (d) the person is a person described in paragraph 27(1)(d) ... and the Minister is of the opinion that the person constitutes a danger to the public in Canada. |
[12] Counsel for the Applicant forwarded submissions in response to the notice, seeking to dissuade the Minister from forming the opinion that Mr. Portillo was a danger to the public in Canada. In written submissions for the Applicant it is said he has never been informed why the Minister "did not comply with s. 53(1)(d) of the Immigration Act before attempting to execute the deportation order against him".
[13] On January 28, 1998, counsel applied to the Immigration Appeal Division to re-open the applicant's earlier appeal which had been dismissed on July 29, 1994.
[14] In mid-February 1998, Mr. Portillo was again served with a notice of intent to request an opinion by the Minister that the Applicant was a danger to the public in Canada. This time it was said the opinion was to be sought pursuant to subsection 70(5) of the Act. That subsection, so far as it is relevant in this case, provides:
| (5) No appeal may be made to the Appeal Division by [a permanent resident, etc.] ... against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be |
| . . . |
| (c) a person described in paragraph 27(1)(d) ... |
[15] Submissions were made by counsel in response to this notice, and as earlier indicated the Applicant was advised by letter that the Minister, said to be acting pursuant to subsection 70(5), had formed the opinion that Mr. Portillo constituted a danger to the public in Canada. Thereafter, following dismissal of his application to stay the execution of the removal order, in August 1998 he was removed from Canada to El Salvador, as noted earlier.
[16] One other aspect of the Applicant's life in Canada, of importance for his case, is his family relationships with his two children, offspring of his common law relationship, since 1993, with a Canadian citizen. The two children, Maya, born in 1996, and Emilio, born in 1997, were ordered by the Provincial Court of British Columbia to be within the sole interim custody of the Applicant, and subsequently, that Court ordered that Emilio be placed in custody of the provincial Director of Child, Family and Community Services, with the Applicant to have reasonable access to the child.
Issues
[17] The issues as stated by the applicant concern:
| 1. His status as a Convention refugee despite the negative determination by the CRDD; |
| 2. The lawfulness of his removal from Canada in August 1998 in view of the Minister's failure to conclude, pursuant to subsection 53(1) of the Act, that Mr. Portillo constituted a danger to the public in Canada; |
| 3. Whether his removal from Canada was prohibited pursuant to subsection 50(1) of the Act in view of the orders of the B.C. Provincial Court? |
I turn to these issues in turn.
The Applicant's status in Canada prior to his removal
[18] Originally accepted as a Convention refugee on the basis of his application to the Canadian Embassy in Mexico, in 1984 the Applicant came to Canada as a Convention refugee and upon his arrival he was granted landing. "Landing", under subsection 2(1) of the Act means lawful permission to establish permanent residence in Canada. From that moment he was a permanent resident, with the rights and privileges of that status under the Act. With respect, it seems to me his status as a permanent resident was virtually ignored at the hearing of this application.
[19] In the Respondent's Further Memorandum of Argument it is concluded that the finding by a Senior Immigration Officer, in January 1994, that the Applicant's claim to be a Convention refugee could be considered by the CRDD may have been in error, as the applicant urged, since, having been determined to be a Refugee when he came to Canada, he was not eligible to have his claim considered by the CRDD in accord with paragraph 46.01(1)(d). I am not persuaded, as counsel for the Minister urged, that his lack of eligibility could be cured by the CRDD's decision that it had jurisdiction to deal with his claim. I note that it is agreed that no action was taken by the Minister pursuant to subsection 69.2(1) for a determination that the applicant's refugee status had ceased.
[20] Despite the questionable basis for the jurisdiction of the CRDD in dealing with the claim by Mr. Portillo to be a Convention refugee, that decision denying his claim is not in issue in this application. In my view there is no necessity to resolve whether the CRDD's decision should be set aside or what its effect was upon the Applicant's status. When its decision was made Mr. Portillo was not simply a Convention refugee in Canada, he was a permanent resident, and the latter status was not affected in any way by the CRDD decision.
The lawfulness of the Applicant's removal
[21] In my opinion the first issue raised by the Applicant has no relevance to the principal issue raised in this application, that is the lawfulness of his removal in August 1998. Moreover, whether his removal was unlawful does not depend, in my opinion, upon the section of the Act, i.e. s-s. 70(5), to which reference was made by the department in its notice of its intent to seek a danger opinion from the Minister.
[22] It seems to me that counsel for the Applicant argues on the basis of a false premise, that in order to obtain a danger opinion by the Minister, the proceedings must be initiated and completed by reference to the section of the Act which relates to removal of a person, depending upon his status in Canada. Subsection 46.01(1)(e)(iv) precludes consideration of a Convention refugee claim where the claimant has been determined to be a person described in paragraph 27(1)(d) that is, a person who has been convicted of an offence under an Act of Parliament carrying a particular penalty, and the Minister is of the opinion that the person constitutes a danger to the public in Canada. Subsection 53(1) prohibits removal of a person found to be a Convention refugee unless that person has similarly been determined. Subsection 70(5) precludes an appeal of a deportation order by a permanent resident to the Appeal Division if that person has been similarly determined, that is, to be within subsection 27(1)(d) and to be the subject of a danger opinion.
[23] The Act does not specify the procedure to be followed in seeking an opinion of the Minister that a person constitutes a danger to the public in Canada. That procedure has apparently been developed within the department in a manner consistent with administrative law principles of fairness. The sections of the Act referring to the danger opinion of the Minister do not provide a process for that opinion to be made. Rather, each of those provisions deals with the effect upon the refugee claimant or upon the person found to be a Convention refugee or upon the permanent resident, respectively.
[24] In this case the opinion of the Minister that Mr. Portillo constituted a danger to the public in Canada was obtained, and the applicant was advised of this in June 1998.
[25] If he were still a Convention refugee, so found under the Act as the Applicant contends, and he was not a permanent resident, subsection 53(1) would not have precluded his removal. Indeed by paragraph (d) of that section he was excepted from the prohibition against removal.
[26] However, he was a permanent resident and by reason of the Minister's danger opinion he lost the opportunity to appeal his deportation order, or more specifically in this case, to request that his earlier unsuccessful appeal be reopened, pursuant to subsection 70(5). He was therefore subject to removal by the Minister, acting under the deportation order originally issued as a conditional order on August 23, 1993.
[27] In my opinion, the removal of the applicant from Canada in August 1998 was lawful and in accord with the Act and regulations applicable to removal from Canada of a permanent resident, which Mr. Portillo was until his removal.
The Removal of the Applicant in light of the B.C. Court's Orders
[28] I come to that same conclusion in relation to the applicant's argument that his removal was contradictory to the orders of the B.C. Provincial Court for custody and access to his children.
[29] I am not persuaded that removal of the applicant from Canada resulted in any contravention of the order which granted him sole interim custody of Maya without restriction as to where custody rights and responsibilities should be exercised and without custody or access rights to any third person. Nor did it contravene any Court order concerning Emilio, whose custody had been assigned to a provincial government officer with only access rights to Mr. Portillo.
[30] Paragraph 50(1)(a) of the Act provides:
| A removal order shall not be executed where |
| a) the execution of the order would directly result in a contravention of any other order made by any judicial body or officer in Canada; ... |
In my opinion, removal of the Applicant from Canada did not "directly result in a contravention" of the orders of the B.C. Provincial Court in this case.
Conclusion
[31] As a permanent resident found by an adjudicator to be a person described in paragraph 27(1)(d) of the Act, and one precluded by s-s. 70(5) from reopening his appeal from a deportation order, the Applicant was subject to be deported under that order. In the result, the application of the Applicant will be dismissed.
[32] At the hearing of this matter, counsel requested the opportunity to consider any question that might be proposed, for certification pursuant to subsection 83(1) after reasons in this matter explaining my intended disposition the application were available, and before judgment is filed. I agreed. I now direct that counsel consult and, whether or not they can agree on questions to be proposed for consideration, to advise the court about questions, agreed upon or separately proposed, that might be considered. Those questions should be submitted in writing on or before June 16, 1999.
[33] Thereafter, an order will issue disposing of this application, as here indicated, with or without questions proposed for certification.
JUDGE
OTTAWA, Ontario
June 2, 1999