Date: 20041022
Docket: IMM-8909-03
Citation: 2004 FC 1477
OTTAWA, ONTARIO, the 22nd day of OCTOBER 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
ÉMILIO GONZALEZ ARGUELES
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant Émilio Gonzalez Argueles, a citizen of Cuba, filed an application for judicial review in this Court from the deportation order made against him on October 29, 2003, by Michel Beauchamp, a member of the Immigration and Refugee Board, Immigration Division (the panel).
[2] The applicant obtained permanent resident status in Canada on March 23, 1983. On April 3, 2003, after entering a plea of guilty to four charges laid under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, the applicant was sentenced to an 80-month term of imprisonment. He is currently serving his sentence in a penitentiary.
[3] The Act provides that a permanent resident or foreign national who is in Canada is inadmissible on grounds of serious criminality in the case mentioned, inter alia, in paragraph 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), which reads as follows:
| 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for |
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36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : |
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| (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed . . . |
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a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans ou d'une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé . . . |
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[4] On August 28, 2003 the applicant was the subject of a report prepared by an immigration officer pursuant to subsection 44(1) of the Act. That report established that the applicant was inadmissible. The report was forwarded to the Minister, who referred the matter to the panel for a hearing. In such a case, subsection 44(2) of the Act provides:
| 44(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. |
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44(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi. |
[5] On October 29, 2003, based on the evidence filed at the hearing, the panel made a removal order against the applicant pursuant to paragraph 45(d) of the Act, which reads as follows:
| 45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions: |
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45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes : |
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. . . |
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| (d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible. |
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d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire, ou contre l'étranger autorisé à y entrer ou le résident permanent sur preuve qu'il est interdit de territoire. |
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[6] It should be noted that since the Act came into effect, no appeal can be filed with the Immigration Appeal Division of the Immigration and Refugee Board (the Appeal Division) from the decision of the panel making the removal order in the event of inadmissibility on grounds of serious criminality, when moreover it is a crime punished in Canada by a term of imprisonment of at least two years (subsections 64(1) and (2) of the Act), which is the case here. That said, since the applicant is currently serving his sentence in a penitentiary, the panel's removal order is subject to a legal stay (paragraph 50(b) of the Act).
[7] Moreover, the applicant's inadmissibility on grounds of serious criminality will in future have the effect of limiting any claim for protection and application for pre-removal risk assessment to circumstances mentioned in section 97 of the Act (paragraphs 112(3)(b) and 113(d) of the Act). In the latter case, in the event of a positive finding by the PRRA officer, the decision granting the refugee claim will have the effect of staying the removal order for the country or place in question, here Cuba (subsection 114(1) of the Act). Nevertheless, the general principle of non-refoulement mentioned in subsection 115(1) of the Act does not apply to a person who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada or who is inadmissible on grounds of security (subsection 115(2) of the Act). That said, there was no risk assessment and no opinion of danger under either of these provisions in the applicant's case.
[8] The applicant admitted that the panel had general jurisdiction to make a deportation order under section 45 of the Act and that the condition mentioned in paragraph 36(1)(a) of the Act has been met in the case at bar. However, the applicant argued, first, that section 36 of the Act is of no force or effect, and second, that the deportation order resulting from application of the Act is contrary to his rights protected by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 (the Charter), at sections 2, 7, 11 and 12. The applicant further argued that there has been a breach of sections 3, 10 and 11 of the Universal Declaration of Human Rights, GA Res. 217 (III), UNGA Off. Doc., 3rd Sess., Supp. No. 13, UN Doc. A/810 (1948).
[9] In the case at bar the applicant alleged that he came to Canada in 1983 because of the lack of civil liberties in Cuba. Once in Canada, the applicant said he joined a group of militants in the Cuban Diaspora known by the acronym C.I.D. (Independent and Democratic Cuba). The applicant said he participated in demonstrations organized by this organization, including four in front of the Cuban consulate in Montréal. The applicant submitted that he could have been observed at those demonstrations and that the Cuban authorities could have listed his name as an opponent of the Fidel Castro government. He therefore feared returning to his country of origin. On that point, the applicant submitted that the country of refoulement, Cuba, would not put him before an independent and impartial tribunal. Accordingly, he feared that on his return to Cuba his status as a political opponent of the Castro government would lead to his being unfairly accused and sentenced by the Cuban authorities.
[10] The applicant alleged on this point that at his hearing before the panel he was not given the procedural guarantees necessary to protect his right "not to be expelled to a risk of torture or death" (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3). Specifically, the applicant submitted that at the hearing held pursuant to subsection 44(2) of the Act, the presiding member of the panel indicated to counsel for the applicant that he had no jurisdiction to deal with questions of a constitutional nature. The presiding member was apparently of the opinion that any constitutional challenge to a removal order should instead be made by an appeal to the Appeal Division. Arguing that section 64 of the Act does not allow an appeal in the case at bar, counsel for the applicant then asked the panel to adjourn the case so he could file a notice of a constitutional question raising the unconstitutionality of section 64 of the Act. The panel refused to adjourn the case and made the deportation order, the legality of which is at issue here.
[11] The Court does not have a complete transcript of the remarks exchanged between counsel for the applicant and the presiding member at the hearing held by the member on October 29, 2003. Additionally, there can be no question of considering here, as the applicant would like, the constitutionality of the prohibition contained in section 64 of the Act against appealing the panel's decision at issue to the Appeal Division. The panel could in no case legally rule on the application or constitutionality of a provision extrinsic to its enabling provision, here section 64 of the Act. This is a question which actually falls within the jurisdiction of the Board's Immigration Appeal Division. Further, no notice of appeal was filed by the applicant against the removal order, so that the question of the constitutionality of section 64 of the Act appears to the Court to be purely academic. If the application for judicial review at bar were allowed, the case in any event could only be referred back to the panel. The Court has no jurisdiction to refer the case to the Board's Immigration Appeal Division. If the applicant intended to challenge the constitutionality of sections 36, 44 or 45 of the Act before the panel, he should have filed a notice of a constitutional question with the panel before the hearing as required by section 47 of the Immigration Division Rules, SOR/2002-229, c. I-2.5, which was never done in the case at bar. In my opinion, the panel cannot now be blamed for not ruling on the constitutionality of these provisions.
[12] Section 45 of the Act gives the panel (formerly the immigration adjudicator) no discretion to refuse to issue a removal order when the facts mentioned in section 36 of the Act have been established. All it can do is to check the accuracy of the allegations in the report prepared pursuant to section 44 of the Act. When the condition mentioned in paragraph 36(1)(a) of the Act regarding inadmissibility has been met, the deportation must be ordered by the panel. That is the case here.
[13] In my opinion, section 36 of the Act is not of no force or effect or unconstitutional, as the applicant contended in his pleadings. I note that the validity of the process of review by the panel under sections 44 and 45 of the Act is not directly challenged in the notice of a constitutional question filed in this Court on May 7, 2004, which is limited to paragraph 36(1)(a) and subsections 64(1) and (2) of the Act. In any event, the constitutional question raised by the applicant, which was not considered by the panel, has already been conclusively dealt with by the courts.
[14] The effect of section 7 of the Charter is to require the panel to act fairly and allow the applicant to give his version of the facts regarding the content of the reports. On the fairness of the hearing provided pursuant to the Immigration Act, 1976, S.C. 1976-77, c. 52 (the former Act), MacGuigan J.A. wrote for the Federal Court of Appeal in Kindler v. MacDonald, [1987] F.C.J. No. 507 (C.A.) (QL), at paragraphs 15 and 17:
It is true that the sole question in issue before the immigration adjudicator at the inquiry would be whether the factual allegations against the [page 42] respondent are true. If they are, the result, deportation, must follow, since subsection 32(6) of the Act precludes the adjudicator from considering special circumstances in determining whether to issue a deportation order in a case such as this. But in that respect the adjudicator is no different from many other triers of fact _ the judge in a murder case, for example, who has no option as to imposing the penalty of life imprisonment if the facts are proved. What the adjudicator must do is to scrupulously observe fairness in making his decision on the facts.
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The hearing prescribed by the Immigration Act, 1976 for an inquiry in my opinion also meets the procedural requirements of fundamental justice under section 7 of the Charter: the respondent would have a full opportunity to present his case on the facts and to challenge those of the other side, all with the aid of counsel. The fact that the penalty is prescribed, if the respondent is found to be subject to deportation, in no way lessens the fairness of the hearing.
[15] A few years later, in Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, the Supreme Court of Canada held that a mandatory deportation order, which does not take into account the circumstances of the offence or offences and which applies to persons convicted of an offence carrying a maximum punishment of five years or more, is not contrary to section 15 of the Charter or to sections 7 or 12 of the Charter, assuming that those two provisions are applicable. In the case of a permanent resident, the Supreme Court concluded that only deportation made it possible to attain that result.
[16] Paragraph 27(1)(d), and subsections 27(3) and (4) and 32(2) of the former Act, which are similar to the currently applicable provisions of the Act, read as follows:
27. (1) Where an immigration officer or peace officer has in his possession information indicating that a permanent resident is a person who
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(d) has been convicted of an offence under any Act of Parliament for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed,
. . .
he shall forward a written report to the Deputy Minister setting out the details of such information.
(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsections (1) or (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.
(4) Where a senior immigration officer receives a copy of a report and a direction pursuant to subsection (3), he shall, as soon as reasonably practicable, cause an inquiry to be held concerning the person with respect to whom the report was made.
32. (. . .)
(2) Where an adjudicator decides that a person who is subject of an inquiry is a permanent resident described in subsection 27(1), he shall, subject to subsections 45(1) and 47(3) [convention refugee], make a deportation order against that person.
[17] On the legality of the removal order, itself the result of committing a serious offence, the Federal Court of Appeal has also held that such an order does not contravene section 7 of the Charter (Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594 (C.A.); Hoang v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 1096 (C.A.) (QL); Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646, at paragraph 15; Kroon v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 857 (F.C.T.D.) (QL)). In Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.), MacGuigan J.A., delivering the judgment of the Federal Court of Appeal, after citing Chiarelli determined the following at page 277:
. . . although the Supreme Court, in deciding the issue on the basis of fundamental justice, left open the question whether deportation for serious offences can be conceptualized as a deprivation of liberty under section 7, this Court has already decided that it cannot, and is bound by its previous decisions: Hoang v. Canada (Minister of Employment and Immigration) (1990), 13 Imm. L.R. (2d) 35; Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594.
[18] Section 11 of the Charter deals with the right of accused persons in criminal and penal matters. Consequently, section 11 of the Charter does not apply here. A deportation order is not a criminal or penal charge (Chiarelli, supra; Akthar v. Canada (Minister of Employment Immigration), [1991] 3 F.C. 32 (F.C.T.D.); Seth v. Canada (Minister of Employment Immigration), [1993] 3 F.C. 348 (F.C.T.D.); Ahani v. Canada, [1996] F.C.J. No. 937 (C.A.) (QL); Canada (Minister of Employment and Immigration) v. Athwal, [1998] 1 F.C. 489 (C.A.)).
[19] Further, in Chiarelli, supra, and Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, the Supreme Court also held that a deportation order made on account of a criminal offence does not outrage standards of decency and is not a disproportionate penalty within the meaning of section 12 of the Charter. See also Dehghani v. Canada (Minister of Employment and Immigration), supra; Hoang v. Canada (Minister of Employment and Immigration), supra; Canepa v. Canada (Minister of Employment and Immigration), supra.
[20] The absolute right to remain in Canada is conferred by subsection 6(1) of the Charter. In this regard, subsection 6(1) of the Charter does not apply to the applicant since he is not a Canadian citizen (Steven Romans v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1416 (C.A.) (QL)). Subsection 6(2) of the Charter does not confer a right to remain in Canada, rather a right to move here and take up residence, once admitted to Canada. The two rights conferred by subsection 6(2) of the Charter relate solely to movement into another province, either for establishing a residence there or working there without establishing a residence (Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357). Additionally, the right conferred in subsection 6(2) of the Charter is not absolute. It is limited by subsections 6(3) and (4) of the Charter, and of course by section 1 of the Charter (Black v. Law Society of Alberta, [1989] 1 S.C.R. 591).
[21] Finally, as the deportation order made against the applicant was not made in a criminal proceeding, there is no breach of articles 10 and 11 of the Universal Declaration of Human Rights.
[22] Consequently, bearing in mind the clear language used in sections 36, 44 and 45 of the Act and the previous decisions by the Supreme Court of Canada and Federal Court of Appeal, the panel could not refuse to make a removal order on the ground that the applicant might be personally exposed to a danger of torture or risk to his life, or to a risk of cruel and unusual treatment or punishment, if he were to return to Cuba. In any event, I consider that the application for judicial review at bar is premature. Although a deportation order was made by the panel, it has not reached the enforcement stage. Further, in light of the facts in the record, the applicant's fears are very speculative. In particular, there is at this time no concrete evidence that if the applicant were to return to his country of origin he would be subject to criminal proceedings and would be imprisoned.
[23] In the case at bar, it is worth noting here that the Act does not make the validity of the removal order subject to its enforcement or enforceability. The Act clearly separates the two proceedings (Kalombo v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 615 (F.C.T.D.) (QL); Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.), at pages 708-9). When the panel has made a removal order, the question of when and where the person concerned will be removed is entirely a matter for the Minister (Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paragraph 74). At this stage, therefore, it cannot be assumed that the deportation order will be carried out by the Minister.
[24] A person who is in Canada and who is not covered by subsection 115(1) of the Act (danger to the public or to the security of Canada) may apply for protection if the person is subject to a removal order which is in force (subsection 112(1) of the Act). It is true that section 96 is inapplicable because of inadmissibility on grounds of serious criminality. However, section 97 of the Act is applicable and it reads as follows:
| 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally |
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| 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or |
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a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; |
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| (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if |
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b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : |
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| (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, |
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, |
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| (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, |
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(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, |
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| (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and |
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(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, |
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| (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
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(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
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[25] The applicant will receive a pre-removal risk assessment based on the factors mentioned in section 97 of the Act, and will at that time have an opportunity to argue that he would be at risk if he were to return to his country of origin (sections 112(3) and 113(d) of the Act). In my opinion, the review procedure currently provided in the Act complies with section 7 of the Charter. If the applicant's claim for protection were allowed, the decision would have the legal effect of staying the removal order (section 114 of the Act). Further, the applicant could still file a visa exemption application on humanitarian grounds. In the event that future decisions on the pre-removal risk assessment or exemption application on humanitarian grounds are negative, the applicant could file applications for leave and judicial review in this Court. The same is true if the Minister were to decide under subsection 115(2) of the Act that the applicant is a danger to the public in Canada or to the safety of Canada. At that time, the Court could determine whether the decisions in question or enforcement of the removal order were illegal and contrary to the Charter. Before ruling on this question, the Court could also issue a stay if the usual conditions were met (serious question, irreparable harm and balance of convenience).
[26] In this regard, it is worth referring to the following comments by Gibson J. in Poshteh v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 384 (F.C.T.D.) (QL), at paragraph 20:
Finally, I am satisfied that, once against a standard of review of reasonableness, the Member's conclusion that it was, and this is my word, not hers, "premature" to entertain an argument of a Charter breach in light of avenues remaining open to the Applicant to have his situation reviewed given the treatment he might face if required to return to Iran, was open to her.
[27] The applicant submitted the following questions for certification by the Court, namely:
Question 1:
In view of the facts in the case at bar, does the Act give the applicant a sufficient guarantee of security of his person, in terms of the three aspects of that security, his physical, psychological and economic security, aspects covered by section 7 of the Charter, and in relation to the procedural guarantees under section 2 of the Canadian Bill of Rights (R.S.C. 1985, App. III)?
(a) If not, should an addition be made to the legislation to include that protection for the applicant?
(b) If not once again, is it necessary to remove one or more parts of the legislation in order to achieve this objective?
Question 2:
In the circumstances of the case at bar, is the inadmissibility order accompanied by a removal order made against the applicant by a member of the panel a breach of his right to security of the person, as defined in the supra-legislative provisions which should guide the panel?
Question 3:
In view of their effects on the applicant's person, are the legislative provisions imposing inadmissibility and a removal order consistent with the fundamental law of Canada?
[28] For the reasons already stated, and in view of the case law cited in these reasons, I consider that the answers to these questions are the following:
Question 1:
Yes.
Question 2:
No.
Question 3:
Yes.
[29] That said, I consider that the questions submitted by the applicant, answered by the Court in the preceding paragraph, do not transcend the interests of the immediate parties to litigation and do not contemplate issues of broad significance or general application (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.) (QL), in view of the fact that these questions have already been decided by the courts (Chiarelli, supra; Canepa, supra). I also consider that the first question proposed is not determinative of a future appeal (Lyanagamage, supra). First, the question is premature. Second, on the merits, I should like to say here that the applicant presented no evidence in this Court of the risk that he raised. The general allegations of risk submitted in support of this application for judicial review were not persuasive. The applicant came to Canada as a sponsored permanent resident. He submitted no evidence in this Court that he is being sought or targeted by the Cuban authorities. I therefore feel that the applicant has not satisfactorily established in this Court that his return to Cuba is likely to threaten his right to life, liberty and security of the person. Consequently, the deportation order is not contrary to section 7 of the Charter. In general, the Court should not certify questions which are moot in nature, and that is the case here.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
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"Luc Martineau" |
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Judge |
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8909-03
STYLE OF CAUSE: ÉMILIO GONZALEZ ARGUELES v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 30, 2004
REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: OCTOBER 22, 2004
APPEARANCES:
DANIEL DROUIN FOR THE APPLICANT
SHERRY RAFAI FAR FOR THE RESPONDENT
SOLICITORS OF RECORD:
DANIEL DROUIN FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA