Federal Court Decisions

Date: 20060216

Docket: IMM-1695-05

Citation: 2006 FC 158

Ottawa, Ontario, February 16, 2006

PRESENT:      THE HONOURABLE MR. JUSTICESHORE

BETWEEN:

SHEON CHANG LEE

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

OVERVIEW

[1]                The discretionary nature of the decision in question permits a balance of various interests - to protect the security of Canadian society and deny access to persons who are criminals on one hand, versus the considerations associated with removal of long-term permanent residents on the other. The appropriate weight to be given to these interests rests entirely with the Minister. The Minister is in a superior position to a court in making this assessment. (Suresh)[1]

[2]                The nature of the question points to deference. The decision to refer a long-term permanent resident to an admissibility hearing is highly fact-based and contextual. The referral opinion "involves a considerable appreciation of the facts of that person's case and is not one which involves the application or interpretation of definitive legal rules." (Baker above, at para. 61) This suggests it merits a wide degree of deference. (Suresh above, at para. 31)

JUDICIAL PROCEDURE

[3]                This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA), for judicial review of the decision of the Minister's Delegate of March 2005, made pursuant to subsection 44(2) of IRPA wherein it was decided to refer the matter to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board (Board).

BACKGROUND

[4]                The Applicant, Sheon Chang Lee, was born in Canada and has lived his whole life in Canada, except for a period of approximately fours years during his childhood. His parents are Malaysian citizens. Mr. Lee was born in Canada while his father worked as Assistant Director of the Malaysian Industrial Development Authority, a statutory body that is independent of the government of Malaysia. His family moved back to Malaysia in 1982 when he was three years old and returned as permanent residents when he was seven, in 1987. At that time, his father was advised by the Canadian High Commission in Malaysia that he did not have to include Mr. Lee in the application for permanent residence because it was believed that he was a Canadian citizen; nevertheless, his father had included him out of caution in the application.

[5]                Mr. Lee was arrested in March 1999. In May 2000, he pled guilty to three charges: conspiracy to commit an indictable offence, trafficking of heroin and possession of a prohibited weapon. He was sentenced to a period of six years and nine months in prison. He served thirteen and a half months in a minimum security federal institution and was released on Accelerated Parole Review because he was not considered to be dangerous.

[6]                Between his arrest and convictions, Mr. Lee was subject to house arrest for thirteen months as a condition of his bail; however, he was allowed to continue his education at York University and was able to complete one year of university before he was sentenced. During his time in prison, he studied by correspondence and tutored other inmates in learning life skills such as basic math and reading.

[7]                Mr. Lee completed an Honours BA in Economics and Business at York University, graduating cum laude and was one of only sixteen students accepted into the Master of Financial Economics program at the University of Toronto. In December 2004, he completed his Masters degree and was a recipient of the Master of Financial Economics Graduate Award. He is currently enrolled in first year at the Faculty of Law of the University of Toronto.

[8]                Mr. Lee's parents and two brothers all live in Canada, they are permanent residents. He is engaged to a Canadian citizen who has lived in Canada her entire life. He has no immediate family in Malaysia and does not speak Malay, the language spoken in Malaysia.

DECISION UNDER REVIEW

[9]                After his release on June 26, 2001, Mr. Lee was notified by the immigration authorities that they were considering writing a report against him that he was inadmissible to Canada. On September 14, 2004, a report was made against him under subsection 44(1) of IRPA. On December 5, 2004, the report was referred for an admissibility hearing under subsection 44(2) of IRPA. In March 2005, Mr. Lee was notified that the matter had been referred for an admissibility hearing.

ISSUES

[10]            Did the Minister's Delegate breach natural justice?

[11]            Did the Minister's Delegate err by violating Mr. Lee's legitimate expectation that his circumstances would be balanced against societal interests before his section 44 report was referred to an admissibility hearing?

[12]            Does the decision to refer the matter to an admissibility hearing under subsection 44(2) violate Mr. Lee's rights under section 7 of the Canadian Charter of Rights and Freedoms (Charter) in a manner which does not comply with the requirements of fundamental justice?

ANALYSIS

Statutory scheme

[13]            Subsection 3(1) of the Citizenship Act, R.S.C. 1985, c. C-29, explains who is a Canadian citizen. Subsection 3(2) states the exception to this rule.

[14]            Section 36 of IRPA refers to criminal inadmissibility. Paragraph 36(1)(a) states that a permanent resident convicted of a serious criminal offence in Canada is inadmissible.

[15]            Section 44 of IRPA states:

[16]            Section 45 of IRPA enumerates the decisions open to the Immigration Division at an admissibility hearing.

[17]            Subsection 64(1) of IRPA says that a person who is inadmissible for reasons of serious criminality cannot appeal a decision. Subsection 64(2) states that serious criminality is a crime punished by a term of imprisonment of at least two years.

[18]            The statutory removal of an appeal by section 64 of IRPA does not equate to a refusal to take into consideration evidence with respect to any risk that the person concerned might face upon removal. Before a person who is subject to a removal order may be removed from Canada, that person must be given notice that they may make an application for protection, otherwise known as a Pre-Removal Risk Assessment (PRRA). The execution of a removal order is stayed until completion of the PRRA process.[2]

[19]            In addition, any foreign national who is inadmissible may apply to the Minister for special relief on the basis of humanitarian and compassionate considerations (H & C application). This option provides a mechanism by which the Minister can exercise his discretion to relieve a person from lawful deportation upon request from that person. An H & C application may be made at any time.

Standard of review

[20]            The standard of review of the decision of the Minister's Delegate is patent unreasonableness. (Lasin)[3]

[21]            In Suresh v. Canada (Minister of Citizenship and Immigration)[4], in the context of the Minister's decision that a refugee constitutes a danger to the security of Canada, the Supreme Court of Canada held that the reviewing court should adopt a deferential approach to this question and set aside the Minister's discretionary decision only if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported by the evidence, or the Minister failed to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.

[22]            The ultimate question is always what the legislature intended. Here, as in Suresh, the language of section 44(2) of IRPA, the Minister must be "of the opinion" that the report is well-founded, suggests a standard of deference. So do the other factors to be considered: (1) the presence or absence of a clause negating the right of appeal; (2) the relative expertise of the decision-maker; (3) the purpose of the provision and the legislation generally; and (4) the nature of the question. (Suresh above, at para. 30)

[23]            In this case, both the first and second factors are the same as they were in Suresh. The first factor suggests that Parliament intended only a limited right of appeal. Although the decision is not protected by a privative clause, it may only be reviewed by leave of this Court. The second factor, the relative expertise of the decision-maker, again favours the same deference as in Suresh for the same reason. The fact that the formal decision-maker is the Minister is a factor militating in favour of deference. The Minister has access to special information and expertise in matters of serious criminality and national security. (Suresh, above at para. 31; Baker[5])

[24]            The discretionary nature of the decision in question permits a balance of various interests - to protect the security of Canadian society and deny access to persons who are criminals on one hand, versus the considerations associated with removal of long-term permanent residents on the other. The appropriate weight to be given to these interests rests entirely with the Minister. The Minister is in a superior position to a court in making this assessment. (Suresh above, at para. 31)

[25]            Finally, the nature of the question points to deference. The decision to refer a long-term permanent resident to an admissibility hearing is highly fact-based and contextual. The referral opinion "involves a considerable appreciation of the facts of that person's case and is not one which involves the application or interpretation of definitive legal rules." (Baker above, at para. 61) This suggests it merits a wide degree of deference. (Suresh above, at para. 31)

[26]            The third factor, the purpose of the legislation, likewise favours deference. One of the purposes of IRPA is clearly to facilitate the removal of serious criminals. (Medovarski; Chiarelli)[6]

[27]            The equivalent of subsection 44(2) of IRPA under the former Act was subsection 27(3). As in subsection 44(2) of IRPA, the decision to refer under the former Act was discretionary. The nature of the question was described in Morenov. Canada(Minister of Citizenship and Immigration)[7], as follows:

In this regard, the applicant maintains that the Deputy Minister is not empowered to cancel or withdraw a Direction after its issuance because, at that juncture, she or he would be functus officio. On this point, I disagree. First, I note that the issuance of a Direction for Inquiry flows directly from the Deputy Minister's discretionary power. In keeping with the provisions of paragraph 27(3)(b), the Deputy Minister "may ... direct that an inquiry be held". It follows that the Deputy Minister may, likewise, choose not to direct such an inquiry. The two possibilities enjoy a rational and complementary co-existence within the realm of the Deputy Minister's discretionary power.

[28]            Under the former Act, a wide degree of deference was accorded to the decision to issue a direction for an inquiry. Indeed, a Court could only intervene if evidence established that the decision was taken in bad faith. This wide degree of deference was accorded because of the nature of the question. As explained by the Federal Court of Appeal in Kindler v. MacDonald[8]:

...Whether it is the decision of the Deputy Minister under subsection 27(3) to issue a direction for an inquiry to a senior immigration officer, or the subsequent decision of a senior immigration officer under subsection 27(4) to cause that inquiry to be held, or the parallel decision of such an officer under section 28 to cause an inquiry to be held, it is, I believe, a purely administrative decision. The senior immigration officer does not even have to reflect on the question; he is merely a conduit through whom the inquiry is caused by operation of the Act. The Deputy Minister has only to decide that an inquiry is warranted, which he would do on the existence of a prima facie case. His decision is analogous to that of any prosecutor who decides to proceed with a charge before the courts. .

[29]            The power to refer a report to the Immigration Division under subsection 44(2) of IRPA is stated in subjective terms. Once again, the test is not whether the report is well-founded, but whether the Minister is "of the opinion" that the report is well-founded. There is ample authority that unless the overall scheme of the Act indicated otherwise; for example, in a situation of an unlimited right of appeal, then such subjective decisions cannot be judicially reviewed except on grounds that the decision maker acted in bad faith, erred in law, or acted on the basis of irrelevant considerations. Moreover, when confronted with the record which was before the decision maker and there is no evidence to the contrary, the Court must assume that the decision maker acted in good faith having regard to the material. (Suresh, above at para. 30; Purcell; Williams)[9]

Did the Minister's Delegate breach natural justice?

[30]            In Hernandez v. Canada(Minister of Citizenship and Immigration)[10], Madam Justice Judith Snider held:

The nature of analogous decisions under the former Act was considered by the Federal Court of Appeal in that case of Kindler v. MacDonald [1987] 3 F.C. 34 (F.C.A.). The Respondent submits that Kindler is relevant to the case before me; the Applicant submits that the findings in Kindler do not apply. The hearing judges in both Correia and Leong relied on Kindler to conclude that the decisions under s. 44(1) and 44(2) were administrative in nature. I agree with my colleagues. ...

[31]            Madam Justice Snider assessed the duty of fairness owed to an applicant under subsections 44(1) and 44(2) of IRPA and found it to be a relatively "relaxed" duty of fairness:

Balancing all of these factors, I find that they point toward a more relaxed duty of fairness, similar to that found by the Supreme Court in Baker. In my view, the duty of fairness implicitly adopted by CIC for purposes of the s. 44(1) report is appropriate. Although these are administrative decisions (rather than quasi-judicial) and although the person affected has some other rights to seek to remain in Canada, there are serious decisions affecting his rights. CIC, whose choice of procedures should be respected, has elected to give the affected person a right to make submissions, either orally or in writing and to obtain a copy of the report. Having a copy of the report would allow the affected person to decide whether he wishes to seek judicial review of the immigration officer's report to this Court. This, I conclude is the duty of fairness owed the Applicant and others in his position with respect to the Officer's Report. (Hernandez above, at para. 70)

[32]            Madam Justice Snider also held that the duty of fairness does not require that the subsection 44(1) report be put to the applicant prior to the subsection 44(2) referral nor does it require an oral interview by an immigration officer. (Hernandez above, at para. 72)

[33]            When an interview is conducted, however, the duty of fairness requires the immigration officer to inform the applicant of the purpose of the interview, so that he may make meaningful submissions, and to provide him with any information in his possession that the applicant would not reasonably be expected to have. The applicant should also be offered the opportunity to have counsel present at the interview. (Hernandez, above at para. 71)

[34]            In the present case, Mr. Lee has had an opportunity to make meaningful submissions on whether to refer his case to an admissibility hearing, which is evident from the Applicant's Record. Furthermore, Mr. Lee was interviewed and was able to put all relevant information before the interviewing Immigration Officer.

[35]            Mr. Lee argues that the information from the Malaysian consulate, which confirms that his father was a vice-consul in Canadaand held a diplomatic card, was extrinsic evidence which should have been disclosed to him.

[36]            This Court has held that the applicant should be provided with "any information... that the Applicant would not reasonably be expected to have". (Hernandez above at para. 71)

[37]            Mr. Lee admits his father was a diplomat in Canada. It is preposterous to suggest that, objectively, Mr. Lee would not reasonably be expected to have information that his own father was a diplomat. At best, the evidence discloses that Mr. Lee had a mistaken assumption about his father's status, and therefore his own status.

[38]            It is possible, even though the Immigration Officer found it highly implausible, that Mr. Lee and his father were operating under a mistaken assumption. This does not change the fact that, objectively, Mr. Lee could be reasonably expected to know the true state of affairs.

[39]            Written reasons are not required given that a low level of procedural fairness is owed in decisions under subsection 44(2) of IRPA and given that such decisions are administrative in nature. In any event, the narrative, prepared by the Immigration Officer and his recommendation to the Minister to refer Mr. Lee's case to an admissibility hearing, is sufficient to satisfy the reasons requirements.

[40]            When this application was commenced, the decision-maker indicated that "no reasons" were given for the decision, in its response to the Court's request under Rule 9 of the Federal Court Immigration Rules, SOR/2002-232. The Rule 9 letter is, in a sense, accurate - the Minister's Delegate did not issue written reasons for the decision.

[41]            In October 2005, in response to Mr. Lee's motion for a stay of the admissibility hearing, the Minister filed the notes of an Immigration Officer setting out the narrative report and a recommendation that was ultimately delivered to the Minister. The Minister indicated that it would rely on the notes as reasons for the decision. It is important to specify the in-depth nature of the notes which, actually, constitute a report; the extensive explanations of the situation of Mr. Lee in the recommendation of the Immigration Officer must, itself, be carefully examined for the detail that was submitted for consideration.

[42]            The Supreme Court of Canada has clearly indicated that this sort of recommending memorandum can be relied on by the Minister as reasons for the decision. The Court routinely treats this sort of recommending memorandum as reasons in various contexts. (Baker above; Hernandez above; Leong[11])

[43]            Mr. Lee was notified in October 2005 that the Minister is relying on the notes as the reasons for decision. There is no reason for this Court to treat these notes differently than the notes and recommending memoranda in numerous other cases.

Did the Minister's Delegate err by violating Mr. Lee's legitimate expectation that his circumstances would be balanced against societal interests before his section 44 report was referred to an admissibility hearing?

[44]            When deciding whether to recommend an admissibility hearing, Immigration Officers and Minister's Delegates have discretion to consider the factors set out in Immigration manuals ENF 5 and ENF 6. (Hernandez above, at paras. 20-24)

[45]            The Immigration Officer's notes, which are being relied upon as reasons, disclose that all of the relevant factors were considered prior to Mr. Lee's referral to a hearing. In particular, the Immigration Officer considered Mr. Lee's residence and establishment in Canada, the fact that he was studying in Canada and the fact that he intended to continue his studies.

[46]            Mr. Lee's argument takes issues with the weight given by the Minister's Delegate to various factors referred to in the Immigration Officer's notes. It is trite law that taking issue with the weight afforded to various factors does not demonstrate that a decision is unreasonable, let alone patently unreasonable:

In this case, the issue as to whether the standard is one of reasonableness simpliciter or patent unreasonableness will not be determinative to granting judicial review. According to the evidence, it would seem that the decision to refer was reasonable...

I agree that the decision to refer the case was reasonable. The decision is based on the report itself, which emphasizes the gravity of the offence and the length of sentence. Another decision-maker might have been moved by the letters sent in by the family and decided not to refer the report to the Immigration Division. However, there are certainly reasonable grounds to support the decision to refer. Again, the standard of reasonableness does not imply, according to the jurisprudence of the Supreme Court of Canada, that the reviewing court would necessarily have arrived at the same result, but only that there are sufficient grounds to justify the decision. Thus, even accepting the standard proposed by the applicant, the decision would withstand the test of reasonableness.

The question is not whether the Minister's delegate properly applied the guidelines or gave enough weights to relevant factors, but whether there is any evidence that Ms. Hill failed to consider the appropriate factors.

There is no evidence that the Minister's delegate made a reviewable error that would justify this Court's intervention. (Poonawalla)[12]

[47]            Mr. Lee had an opportunity to make submissions on whether to refer his case to an admissibility hearing. Furthermore, Mr. Lee was interviewed and was therefore able to present all relevant information to the Immigration Officer.

[48]            The Immigration Officer found it highly implausible that Mr. Lee was unaware of his status as a Malaysian citizen. The Immigration Officer's findings of fact depend on a straightforward interpretation of the record, including: the fact that Mr. Lee's own family had represented to immigration authorities that he was a Malaysian citizen and the fact that Mr. Lee applied for and obtained a Malaysian passport shortly before applying for a Canadian passport.

[49]            Mr. Lee suggests that consideration should have been given to the totality of the humanitarian factors in his favour. He also suggests that the decision has important consequences because it is the only part of the process involving an equitable review of his case.

[50]            The jurisprudence is clear that the Minister's Delegate may consider the various factors set out in the Immigration Manual. It is equally clear that the decision is not a full-blown humanitarian and compassionate review. (Hernandez above; Correia[13])

[51]            The fact is that, under IRPA Mr. Lee will not have his case reviewed in the same manner and with as much formality as he would have had before the Immigration Appeal Division. That is the clear effect of the legislation. It is consistent with the purposes of the legislation. It is more difficult under IRPA for serious criminals to prevent their removal. Mr. Lee's argument seems to be based on the assumption that, because there was an opportunity in the former Act as specified above, there must be an analogous provision under IRPA. The reasoning of the Supreme Court of Canada in Medovarski above, clearly refutes this view.

[52]            Further, as this Court has recognized, Mr. Lee has other opportunities within the scheme of IRPA to raise humanitarian and compassionate equitable issues.

[53]            Mr. Lee is a permanent resident who has committed serious crimes. The Immigration Officer considered the appropriate factors when he referred the inadmissibility report to the Immigration Division under subsection 44(2) of IRPA. His decision was made after considering all relevant factors and is amply supported by the evidence.

Does the decision to refer the matter to an admissibility hearing under subsection 44(2) violate Mr. Lee's rights under section 7 of the Canadian Charter of Rights and Freedoms (Charter) in a manner which does not comply with the requirements of fundamental justice?

[54]            The decision of the Minister's Delegate does not engage Mr. Lee's Charter rights. The Supreme Court of Canada confirmed in Medovarski above, that the deportation of serious criminals does not engage the Charter. The issue raised in Medovarski above, at paragraphs 46-47, was the removal of an appeal right for serious criminals:

The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada: Chiarelli v. Canada(Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733. Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.

Even if liberty and security of the person were engaged, the unfairness is inadequate to constitute a breach of the principles of fundamental justice. The humanitarian and compassionate grounds raised by Medovarski are considered under s. 25(1) of the IRPA in determining whether a non-citizen should be admitted to Canada. The Charter ensures that this decision is fair: e.g. Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Moreover, Chiarelli held that the s. 7 principles of fundamental justice do not mandate the provision of a compassionate appeal from a decision to deport a permanent resident for serious criminality. There can be no expectation that the law will not change from time to time, nor did the Minister mislead Medovarski into thinking that her right of appeal would survive any change in the law. Thus for these reasons, and those discussed earlier, any unfairness wrought by the transition to new legislation does not reach the level of a Charter violation.

[55]            Mr. Lee was accorded procedural fairness. The factors that he asks this Court to consider were all considered by the Minister's Delegate prior to the decision to refer his case to a hearing. Even assuming that the Charter is engaged, Mr. Lee's case has been dealt with in accordance with the principles of fundamental justice.

CONCLUSION

[56]            There was no breach of natural justice or procedural fairness. Mr. Lee was accorded the opportunity to present his evidence to the Immigration Officer before the decision was made. He was informed of the reason for the interview and of the possibility that the matter might be referred to the Board for an admissibility hearing therefore, he could properly present his evidence to the Immigration Officer. Furthermore, all the relevant factors were considered before a decision was made, which was reasonable given the evidence and the legislative provisions.

[57]            As this Court cannot find reason to return the matter to the Minister's Delegate for re-examination, there is no reason to interfere with the decision and this application for judicial review should be dismissed.

ORDER

THIS COURT ORDERS that

1.         The judicial review be dismissed.

2.          The following questions for certification were submitted by the counsel for the Applicant for the Court's consideration:

(a)         What is the scope of the Immigration Officer's discretion under s.44(1) of IRPA in making a decision as to whether to prepare a report to the Minister and the discretion of the Minister's delegate under s.44(2) of the Act in making a decision as to whether to make a referral to the Immigration Division for an inquiry?

            (b)         What is the duty of fairness owed in respect of (a) the Immigration Officer's decision on whether to prepare a report under s.44(1) of the Act and (b) the decision of the Minister's delegate as to whether to refer such a report to the Immigration Division under s.44(2) of the Act?

(c)         Is there a greater duty of fairness with respect to long term permanent residents whose cases must be referred to National Headquarters in Ottawa for a determination with respect to a direction under s.44(2) given the interest at stake?

3.          In regard to the questions for certification put forward by the counsel for the Applicant and subsequent to further consideration, they will not be submitted due to the following conclusions reached:

(a)         Every issue that required a response in this specific case has been answered by the decision of the Court in regard to the Applicant (recognizing the jurisprudence of the Federal Court of Appeal and Supreme Court of Canada in respect thereof cited above, in addition to Zazai v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 368, 2004 FCA 89 at paragraphs 11-12[14]);

(b)         Although counsel for the Applicant has put forward significant questions and considered so, also, by the counsel for the Respondent, these are not for the Court to address but rather for the appropriate branch of government in its policy considerations; therefore, if a long-standing resident is to be treated differently than one who has been in Canada for a shorter duration of time (recognizing that the legislation does not measure nor differentiate the length of time in this regard), it would be for the enacting legislative institution to make such a change.

(c)         If the balance is to be struck differently that is the responsibility of the legislator.

"Michel M.J. Shore"