Federal Court Decisions

Date: 20010723

Docket: IMM-4486-00

Neutral citation: 2001 FCT 817

BETWEEN:

                                                      PEDRO JORGE OLIVEIRA

                                                                                                                                          Applicant

                                                                           and

                                                THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

                                                                                                                                     Respondent

                                                        REASONS FOR ORDER

Heneghan, J.

INTRODUCTION

[1]                 Mr. Pedro Jorge Oliveira (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Immigration Appeal Division (the "Appeal Board") signed on August 8, 2000. In its decision, the Appeal Board determined that it was without jurisdiction to hear the appeal filed by the Applicant.

FACTS

[2]                The Applicant is a permanent resident of Canada who has lived in the country since 1971. He is a citizen of Portugal and arrived in Canada when he was two years old. He has lived in this country for some thirty years and has no immediate family members living in Portugal.

[3]                On January 25, 1999, the Applicant was convicted of manslaughter and sentenced to a three-year term of imprisonment.

[4]                On July 19, 1999, the Applicant was served with a Notice of Intention that the opinion of the Minister of Citizenship and Immigration (the "Respondent") would be sought pursuant to section 70(5) and 46.01(1)(e)(iv) of the Immigration Act, R.S.C. 1985, c. I-2, amended, that he was a danger to the public. The Applicant filed written submissions in response to receipt of the Notice of Intention.

[5]                On January, 10, 2000, counsel for the Applicant received a letter dated January 5, 2000 from one H. N. Long, Immigration Officer, which contained the following statements:

This is further to our letter to you dated 13 July 1999 that was hand delivered to you at Matsqui Institution on 19 July 1999. After a complete review of all material presented the Minister's Delegate did not form the opinion that you pose a danger to the public in Canada.

Your file will now be forwarded to the Immigration and Refugee Board, Adjudication Division for scheduling of an inquiry. You and your counsel Mr. Elgin will be advised of the date of your inquiry. If a Deportation Order is issued against you will retain your right to appeal the order to the Immigration Appeal Division. ^[1]

[6]                 An inquiry was held on February 3, 2000 at Matsqui Institution to determine whether the Applicant was a person described in the Report, dated January 13, 1999, which was issued pursuant to section 27 of the Act. At the hearing of the inquiry, counsel for the Respondent stated, on the record, that the Applicant had the right to appeal any deportation order that might be issued against him. As apparent reliance on this statement, the Applicant, through counsel, admitted that he had been convicted of the offence set out in the Report. ^[2] The Adjudicator conducting the inquiry then made the following comments:

ADJUDICATOR:    Well, the facts of your case do seem quite straightforward, and I'm satisfied from the admissions made on your behalf by Mr. Elgin that the allegation under paragraph 27(1)(d) has been established, because it has been admitted that you were granted landing on the 13^th of November, 1971, and have not yet become a Canadian citizen, so you are then, by definition, still a permanent resident of Canada.

It has also been admitted that you were convicted as alleged on the Report, which was a conviction for manslaughter on the 25^th of January of 1999. This was a conviction under the Canadian Criminal Code, Section 236, and the Criminal Code is, of course, an Act of Parliament.

The term of imprisonment which you received was a period of imprisonment for three years, which certainly exceeds the six months required by 27(1)(d), and the possible term of imprisonment for manslaughter being life in prison also exceeds the five years or more in terms of possible sentences.

So both aspects of the allegation have been established, and as a consequence of that I am required to order your deportation from Canada, and I do so order.

[7]                A deportation order was issued on February 3, 2000. A Notice of Appeal in respect of the order was filed on February 3, 2000 and in due course, the appeal was scheduled for hearing on August 10, 2000.

[8]                Prior to that hearing, however, Senior Immigration Officer H. N. Long sent another letter to the Applicant. This letter, dated May 18, 2000, presents a very different picture with respect to the Minister's opinion about the Applicant. This letter provides as follows:

This is further to my letter to you dated 05 January 2001. I attach a copy for your easy reference. I must inform you that this letter was sent to you in error, and that on 29 December 1999 the Minister's Delegate did in fact form the opinion that you pose a danger to the public in Canada. I attach copies of opinions under Section 70(5) and 46.01 for your reference. The error was caused by confusion over a number of files at our National Headquarters. This error resulted in our misinforming about your right of appeal. For this I sincerely apologize.

Copies of the opinions have been forwarded to our Vancouver Hearings and Appeals Unit who will be communicating with the Immigration and Refugee Board, Appeals Division regarding your pending appeal. The Immigration Appeal Division will advise you of their decision regarding your case.^[3]

[9]                A copy of this letter was sent to the Appeal Division and was treated as a motion addressing the jurisdiction of the Appeal Division to hear the Applicant's appeal against the deportation order issued on February 3, 2000.

[10]            The Applicant was given the opportunity to make submissions to the Appeal Division on the issue of jurisdiction and submitted a written argument through his counsel. On August 8, 2000, a decision was signed by the Appeal Division, dismissing the Applicant's appeal on the ground that the Appeal Division lacked jurisdiction to hear the appeal. The operative part of the decision reads as follows:

The Minister of Citizenship and Immigration is of the opinion that the appellant constitutes a danger to the public in Canada and the appellant has been determined by an adjudicator to be a person described in paragraph 27(1)(d) of the Immigration Act who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. Therefore, the motion by the Minister of Citizenship and Immigration that the appeal be dismissed for lack of jurisdiction is granted.

THE APPEAL DIVISION ORDERS, in accordance with paragraph 70(5)(c) of the Immigration Act, that the appeal be dismissed for lack of jurisdiction. ^[4]

[11]            The Applicant then filed this application for leave and judicial review of the decision of the Appeal Board.

ISSUE

[12]            The issue for determination is whether the Appeal Division breached the duty of fairness or legitimate expectation owed to the Applicant.

Applicant's Submissions

[13]            The Applicant argues that, given the facts of this case and the contradictory statements made by agents and employees of the Respondent, he had a legitimate expectation that his appeal against the deportation order would be heard. He claims that his legitimate expectation arose from the written advice given to him in the letter dated January 5, 2000, that the Minister had determined that he was not a danger to the public. Subsequent delivery of contrary advice in the letter dated May 18, 2000, which forwarded the danger opinion signed by W. Sheppit dated December 29, 1999, should not affect his legitimate expectation in this matter.

[14]            The Applicant relies on the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4^th) 193 (S.C.C.) in support of his argument that the significant impact upon him of the decision of the Appeal Division, that is the loss of the right to appeal against the deportation order dated January 3, 2000, invites the inference that there is a duty upon the Appeal Division to afford him procedural fairness and hear his appeal.

Respondent's Submissions

[15]            The Respondent argues that it is well-established law that the doctrine of legitimate expectation applies only to procedural rights and does not extend to substantive rights. The Respondent draws the distinction, in this case, between a person's substantive right to proceed with a right of appeal granted under the Act and the procedural right which affords such person the right to make submissions and to otherwise present his case when there is no jurisdictional impediment to the exercise of procedural rights.

[16]            The Respondent submits that the danger opinion which was issued by the Minister's delegate on December 29, 1999, deprives the Appeal Division of jurisdiction. The errors made by the Department of Citizenship and Immigration in fully communicating the true state of affairs to the Applicant cannot support a finding of jurisdiction in the Appeal Division when the Act specifically states that no jurisdiction exists.

ANALYSIS

[17]            The unfortunate situation in which the Applicant now finds himself has resulted from the inexplicable actions of the Department of Citizenship and Immigration in issuing directly contradictory information to him. The critical mistake, for which no explanation has been given, lies in the letter of January 5, 2000 by which the Applicant was informed that, further to the Notice of Intention dated July 13, 1999 to seek a danger opinion against him, he had been found not to be a danger to the public.

[18]            That error was compounded by the fact that, during the Inquiry held in February 3, 2000, counsel for the Minister confirmed that the Applicant indeed had a right of appeal to the Appeal Division.

[19]            These two facts could reasonably support a belief by the Applicant that he could pursue an appeal against the deportation order. However, it appears that the letter of January 5, 2000 and the statements of February 3, 2000 were apparently written and made, respectively, in ignorance of the opinion signed by W. Sheppit, Minister's Delegate, on December 29, 1999. No explanation was offered about the circumstances which led to the dissemination of incorrect information. No explanation was offered but one obvious inference is that there was a lack of communication within the Department of Citizenship and Immigration and also with its legal advisors.

[20]            According to section 70(5) of the Act, the existence of a danger opinion deprives an affected person of a right of appeal to the Appeal Division. Section 70(5) provides as follows:

[21]            It is clear from the record that the Applicant is a person described in section 70(5). He is a permanent resident of Canada, therefore he is a person described in section 70(1) of the Act; he is the subject of a deportation order; he is the subject of a danger opinion; and he has been found to be a person described in section 27(1)(d) of the Act.

[22]            The Applicant relies on the decision of the Federal Court of Appeal in Bendahmanev. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (F.C.A.) as support for his reliance on the doctrine of legitimate expectation. He argues that in his case, the right to appeal is both procedural and substantive. With respect, I do not accept that submission.

[23]            The right of access to the Appeal Division is circumscribed by Parliament to those persons who are not subject to the exceptions in section 70(5). Unfortunately, the Applicant is the subject of a danger opinion. The fact that he was not made aware of this in a timely fashion cannot support a finding of jurisdiction in the Appeal Division when that jurisdiction does not exist.

[24]            This Court has found that the issuance of a danger opinion by the Minister, even when the hearing of an appeal has commenced, operates to deprive the Appeal Division of jurisdiction; see Tsang v. Canada (Minister of Citizenship and Immigration) (1996) 107 F.T.R. 214 and Gonsalves v. Canada (Minister of Citizenship and Immigraiton) [1997] F.C.J. No. 588.

[25]            I am bound to follow the jurisprudence of this Court in its interpretation of section 70(5) of the Act. In light of the existence of the danger opinion dated December 29, 1999, it is clear that the Appeal Division was without jurisdiction to hear the Applicant's appeal. It reached the only conclusion available to it when it granted the Respondent's motion to dismiss the appeal for lack of jurisdiction. The Appeal Division committed no error of law in making its decision.

[26]            The Application for judicial review is dismissed. Counsel for the Respondent requested seven days after receipt of these Reasons to submit a question for possible certification pursuant to section 83 of the Act. That grace period is allowed.

[27]            Finally, I note that, to date, the Applicant has not sought judicial review of the danger opinion which he received in May 2000. Should such an application now be brought, together with a request for an extension of time, it should receive favourable consideration from the Minister, having regard to the circumstances of this case and the current jurisprudence concerning danger opinions.

(Sgd.) "Elizabeth Heneghan"

                                                                   Judge

Vancouver, British Columbia

July 23, 2001

Endnotes