Date: 20050506
Docket: IMM-3111-04
Citation: 2005 FC 615
BETWEEN:
ANBESSIE DEBELE TIKY
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (the IAD), dated March 12, 2004, which dismissed the applicant's appeal of a deportation order on the ground that the IAD does not have jurisdiction.
[2] Anbessie Debele Tiky (the applicant) is a citizen of Ethiopia. The applicant was found to be a Convention refugee by the Convention Refugee Determination Division on October 23, 1995. By virtue of the transition provision of subsection 338(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the Regulations) refugee protection has been conferred on the applicant and he therefore falls within the group of "protected persons" described at subsection 95(2) of the Act.
[3] On March 31, 2003, the applicant was ordered to be removed from Canada because he was found to be inadmissible in accordance with paragraph 35(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the Act) for violating human or international rights. The proceeding commenced prior to the Act coming into effect, but continued after it came into force, and was therefore governed by the Act in accordance with section 193.
[4] The IAD refused to hear the applicant's appeal on the grounds that he falls within the definition of "foreign national" and because he was found inadmissible for violating human or international rights further to paragraph 35(1)(a) of the Act, he is therefore caught under subsection 64(1) of the Act.
[5] The relevant provisions of the Act are as follows:
| 2. (1) The definitions in this subsection apply in this Act. "foreign national" means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.
3. (1) The objectives of this Act with respect to immigration are (h) to protect the health and safety of Canadians and to maintain the security of Canadian society;
(2) The objectives of this Act with respect to refugees are (g) to protect the health and safety of Canadians and to maintain the security of Canadian society;
(3) This Act is to be construed and applied in a manner that (f) complies with international human rights instruments to which Canada is signatory.
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
63. (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
95. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). |
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2. (1) Les définitions qui suivent s'appliquent à la présente loi. « _étranger_ » Personne autre qu'un citoyen canadien ou un résident permanent; la présente définition vise également les apatrides.
3. (1) En matière d'immigration, la présente loi a pour objet_: h) de protéger la santé des Canadiens et de garantir leur sécurité;
(2) S'agissant des réfugiés, la présente loi a pour objet_: g) de protéger la santé des Canadiens et de garantir leur sécurité;
(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet_: f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.
35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants_: a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;
63. (3) Le résident permanent ou la personne protégée peut interjeter appel de la mesure de renvoi prise au contrôle ou à l'enquête.
64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
95. (2) Est appelée personne protégée la personne à qui l'asile est conféré et dont la demande n'est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). |
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[6] Since the interpretation of a statute is a question of law, correctness is the standard of review applicable in this case. It is agreed that statutory interpretation should be approached with the following analytical framework set out in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, at pages 40 and 41:
Although much has been written about the interpretation of legislation . . ., Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[7] In applying this principle it is instructive to look at the objectives set out in section 3 of the Act. The applicant submits that this Court has held that international instruments must be relied on in the case of ambiguous legislation (Josephine Soliven De Guzman v. Minister of Citizenship and Immigration (September 20, 2004), IMM-8447-02, 2004 FC 1276), particularly in regards to paragraph 3(3)(f) of the Act, which states that it is to be construed and applied in a manner that "complies with international human rights instruments to which Canada is signatory." However, the applicant fails to notice that in that same decision the Court states that "subsection 3(3)(f) of IRPA does not incorporate international human rights conventions as part of Canadian law, or state that they override plain words in a statute. Subsection 3(3)(f) of IRPA means that the conventions be considered by the Court as "context" when interpreting ambiguous provisions of the immigration law."
[8] The Federal Court of Appeal in Medovarski v. Canada (M.C.I.), [2004] 4 F.C.R. 48, has also outlined Parliament's intention with respect to the Act. At paragraph 55, Evans J.A. for the Court stated that "in enacting IRPA Parliament re-balanced the interests of public safety and individual rights by broadening the categories of persons who may be removed without an appeal to the IAD." More particularly, by interpreting section 64 to include protected persons as foreign nationals, it is consistent with paragraphs 3(1)(h) and 3(2)(g) of the Act which include promoting the safety and security of Canadians and Canadian society as objectives of the Act. To interpret section 64 any other way would be contrary to these objectives.
[9] An analysis of the principle in Re Rizzo & Rizzo Shoes Ltd., supra, can also be buttressed with the maxim expressio unius est exclusio alterius. The definition of "foreign national" in section 2 of the Act is an exhaustive definition. It defines who is included and who is excluded. If Parliament had wanted it to exclude protected persons, it would have excluded it here.
[10] In that context, I am also more convinced of the respondent's arguments that in interpreting the statute, by giving section 64 an interpretation consistent with Charter values would relegate the section 7 guarantee to a simple rule of statutory interpretation, which would shift the analysis from statutory interpretation to a section 7 analysis. I do not think there are any policy reasons here to justify using Charter values as a primary tool in aid of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, at 580-582).
[11] The applicant also submits that this Court must interpret any provision tending to preclude any form of judicial review as strictly as possible (Salibian v. Canada (M.E.I.), [1990] 3 F.C. 250 (C.A.)). However, I believe that the above mentioned principles of statutory interpretation are more persuasive. Moreover, the applicant had the opportunity to seek judicial review of the decision of the IRB on the issue of serious criminality, and filed an Application for Leave and for Judicial Review in this Court (Court file No. IMM-3648-03), which he later withdrew by Notice of Discontinuance dated May 16, 2003.
[12] For all the above reasons, the application for judicial review is dismissed.
[13] The following question, proposed by learned counsel for the applicant, is certified:
Did the Immigration Appeal Division err in law in determining that it did not have jurisdiction to hear the applicant's appeal of the deportation order?
JUDGE
OTTAWA, ONTARIO
May 6, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3111-04
STYLE OF CAUSE: ANBESSIE DEBELE TIKY v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 7, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: May 6, 2005
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANT
Mr. Donald MacIntosh
Ms. Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Crane FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada