Date: 20010427
Docket: IMM-3287-00
Neutral Citation: 2001 FCT 400
Between:
DANIEL KWAKU OFOSU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicant seeks judicial review of a decision of Jean-Pierre Gaboury of the Immigration and Refugee Board dated April 26, 2000, in which he granted leave to the respondent to make an application to the Convention Refugee Determination Division (the CRDD) to reconsider and vacate its determination that the applicant is a Convention refugee pursuant to subsection 69.2(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant arrived in Canada from Ghana on May 13, 1994 and was granted refugee status on July 10, 1995. The applicant immediately applied for landing, which was never granted. He is married with children and has not seen his family since he fled Ghana in 1994, nearly seven years ago.
[3] The applicant submitted a number of documents in support of his application for refugee status, including a Ghana Police Wanted Notice dated May 11, 1994, a Statement of Offence from the Circuit Court in Kumasi, Ghana, undated, Court Case No. 1152/94, and a letter dated November 11, 1994 from a legal practitioner in Ghana in the name of Kofi Owusu Asante.
[4] On March 20, 1995, prior to the applicant's refugee status hearing, the Refugee Hearing Officer wrote to the Immigration Appeals Office enclosing these documents and requesting a verification of the authenticity of the documents.
[5] On the basis of information subsequently obtained from the Commissioner of Police/CID and addressed to the First Secretary of the Canadian High Commission in Accra, Ghana, the respondent brought an application before the CRDD pursuant to subsection 69.2(3) of the Act to reconsider and vacate its determination that the applicant is a Convention refugee. The respondent submitted that the applicant had obtained refugee status by fraudulent means and misrepresentation by tendering false documents in support of his claim and that had the truth been known, the CRDD may have arrived at a different determination. The CRDD granted the respondent leave on April 26, 2000.
[6] The relevant statutory provisions of the Act read as follows:
69.2 (2) The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person.
69.2 (2) Avec l'autorisation du président, le ministre peut, par avis, demander à la section du statut de réexaminer la question de la reconnaissance du statut de réfugié au sens de la Convention accordée en application de la présente loi ou de ses règlements et d'annuler cette reconnaissance, au motif qu'elle a été obtenue par des moyens frauduleux, par une fausse indication sur un fait important ou par la suppression ou la dissimulation d'un fait important, même si ces agissements sont le fait d'un tiers.
69.2 (3) An application to the Chairperson for leave to apply to the Refugee Division under subsection (2) shall be made ex parte and in writing and the Chairperson may grant that leave if the Chairperson is satisfied that evidence exists that, if it had been known to the Refugee Division, could have resulted in a different determination.
69.2 (3) L'autorisation requise dans le cadre du paragraphe (2) se demande par écrit et ex parte; le président peut l'accorder s'il est convaincu qu'il existe des éléments de preuve qui, portés à la connaissance de la section du statut, auraient pu modifier la décision.
[7] Concerning the applicant's submissions based on breach of natural justice for want of reasons in support of the impugned decision, there is no statutory requirement in the Act for the provision of reasons in the context of an application for leave to apply for vacation. Contrary to the applicant's contention, subsection 69.1(11) has no bearing on the present proceeding, as it relates strictly to claims referred to the CRDD pursuant to section 46.02 or 46.03, which is not the case here.
[8] With respect to the duty to provide reasons under common law, it is well established that a duty of fairness will exist in the case of an administrative decision if it affects "the rights, privileges or interests of an individual" (see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at page 653). As explained by Madam Justice L'Heureux-Dubé in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 at paragraph 21, where a duty of fairness exists, its actual scope and content will vary depending on an appreciation of the context of the particular statute and the rights affected.
[9] The proceedings herein are unusual in that the applicant is contesting a decision granting leave to the Minister rather than a decision granting the Minister's application to vacate. It is my view that the duty of fairness is, in the interests of desirable celerity, at the minimal end of the spectrum.
[10] The sole issue to be determined on an application under subsection 69.2(2) of the Act is whether the Minister can satisfy the Chairperson "that evidence exists that, if it had been known to the Refugee Division, could have resulted in a different determination". Where the Minister succeeds, leave will be granted, triggering a full application hearing and all of the procedural guarantees associated with it. The applicant will be afforded the opportunity to present full legal submissions at the hearing and will have the opportunity at the end of the oral hearing to seek leave to bring an application for judicial review of a negative decision should it arise. If the Minister does not succeed on application for leave, the application will simply not proceed. In this circumstance, the claimant does not have a case to meet of which he or she must be given notice. I cannot agree that, in this situation, a hearing is needed to be held nor that reasons need be provided.
[11] As a result, I am of the opinion that the decision to grant leave to commence an application under section 69.2 does not fall within the circumstances envisioned by the Supreme Court of Canada in Baker, supra. I therefore refuse to interpret the word "shall" in subsection 69.2(3) with respect to ex parte as "permissively".
[12] As for the applicant's contentions with respect to the nature of the evidence provided by the Minister and the manner in which it was obtained, such issues are raised prematurely and can properly be dealt with by the CRDD at the hearing of the vacation application. Such factual determinations are much better suited for the CRDD, who is an expert in such fact finding, than this Court.
[13] With respect to the applicant's final argument on the delay in the processing of his application for landing, I concur with the respondent that this is not the time to raise such issues. This matter can properly be raised in a separate application for judicial review, as it does not relate to the decision to grant leave contested herein.
[14] As for the constitutional challenge of subsection 69.2(3) of the Act, it was not dealt with on the merit by reason of the applicant's failure to serve and file proper notice pursuant to section 57 of the Federal Court Act, R.S.C. 1985, c. F-7. Mere submissions concerning a constitutional question in the applicant's Memorandum of Fact and Law contained in his Application Record are not sufficient to exempt the applicant from the notice requirement of section 57 of that Act. I fail to understand why, if the applicant saw fit to serve the required notice together with the above Memorandum of Fact and Law on the Attorney General of each province, he did not do so for the Attorney General of Canada. I agree with counsel for the respondent that he was entitled to the required ten-day notice which would have allowed him (as well as this Court) to know if the applicant intended to pursue the constitutional challenge signalled in his Application Record and to prepare accordingly. As no reasons were provided for such failure to give proper notice other than those made in the Memorandum of Fact and Law contained in the applicant's record, I find that exercising my discretion otherwise would encourage an undesirable practice.
[15] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
April 27, 2001