Date: 19980629
Docket: IMM-1853-97
OTTAWA, Ontario, this 29th day of June, 1998.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
JAD DAHER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
UPON application by the applicant for judicial review and for an order setting aside the decision of a Senior Immigration Officer refusing to reconsider an exclusion order made against the applicant on February 25, 1997, which decision not to reconsider that order was communicated to the applicant on April 23, 1997;
UPON hearing counsel for the parties in Toronto on May 7, 1998, when decision was reserved, and upon consideration of submissions then made, the Court then concluding that the essential facts and the issues in this case are essentially similar to those in Raman v. Canada (Minister of Citizenship and Immigration) (1996), 125 F.T.R. 50;
O R D E R
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. The following questions, originally certified in Raman, supra, are certified, pursuant to s-s. 83(1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, for consideration by the Court of Appeal:
Question 1: Does a senior immigration officer have jurisdiction, either at common law or pursuant to s. 7 of the Charter of Rights and Freedoms and section 52(1) of the Constitution Act, 1982, to consider re-opening a hearing which resulted in the issuance of a removal order in order for a person to claim protection as a Convention refugee?
Question 2: If a senior immigration officer does have jurisdiction to reopen is this jurisdiction limited to instances where there has been a breach of natural justice in respect of the original decision?
Question 3: If it is so limited, was there a breach of natural justice or the principles of fundamental justice in the failure of the senior immigration officer to advise the applicant of a right to counsel prior to conclusion of the hearing before the senior immigration officer which resulted in the issuance of a removal order?
W. Andrew MacKay
Judge
Date: 19980629
Docket: IMM-1853-97
BETWEEN:
JAD DAHER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of, and an order setting aside, a decision of a Senior Immigration Officer refusing to reconsider an exclusion order made against the applicant on February 25, 1997, which decision not to reconsider that order was communicated to the applicant on April 23, 1997.
[2] The applicant is a citizen of Lebanon who arrived in Canada on February 25, 1997 and then attempted to enter with a Swedish passport bearing his photograph but a name other than his own. He was not admitted. He was asked if he wanted to claim refugee status and he declined to do so. He was then issued an exclusion order by a Senior Immigration Officer. At one point, before or just after that order was issued he was asked if he wished to contact a lawyer and, at the latest, soon after the order was issued he indicated he did want to consult a lawyer.
[3] He was then detained. When he had legal services two days later counsel advised him that since an exclusion order had been issued against him he could not file a claim to refugee status. Thereupon he wrote requesting that the Senior Immigration Officer reconsider, and rescind, the exclusion order against him so that he might make a refugee claim.
[4] That request was denied by the Senior Immigration Officer who wrote advising the applicant's counsel, inter alia,
...there is no legal authority for the Senior Immigration Officer to revisit the exclusion order. In this regard please refer to the Federal Court judgment Philman Abu Raman v. MCI, rendered by the Federal Court Trial Division on 31 December 1996. Given the above, your request is hereby denied.
[5] The case referred to is Raman v. Minister of Citizenship and Immigration[1] determined by Mr. Justice Dubé. That decision, in my opinion, dealt with circumstances essentially similar to those in this case. Counsel for the applicant urged that the circumstances here were sufficiently different that the primary issue, concerning the officer's authority to reconsider an exclusion order once issued, should be treated differently in this case. The differences suggested concern the understandings of the applicant at the time he arrived in Canada, as a young person unaware of the process of applying for refugee status in Canada, who was told by someone that he could be imprisoned for up to five years if found trying to enter Canada on a false passport, and who was not aware that once an exclusion order was issued he could not then have a claim to refugee status considered. Those factors may have affected his own conduct, for example, his failure to indicate interest in claiming refugee status when asked on his arrival, but they are not significant in the sense that the Senior Immigration Officer dealing with him should have had any awareness of them.
[6] I am not persuaded that the basic facts differ from those in Raman. Moreover, the basic issues were also addressed in Raman. In that case the right to counsel before the issuance of the exclusion order was raised, in relation to the Charter and in light of the principle of fairness, and natural justice.
[7] In that case Mr. Justice Dubéstated in part:
In my view, s. 44(1) of the Act clearly precludes the SIO from reopening a decision to exclude. Once that decision is made a refugee may not seek a determination of a refugee claim unless an appeal from that order has been allowed....the SIO does not have jurisdiction either at common law or pursuant to section 7 of the Charter and subsection 52(1) of the Constitution Act, 1982 to consider reopening a hearing. It follows that it is not necessary to decide whether or not there has been a breach of natural justice as there was no obligation on the part of the senior immigration officer at that stage to advise the applicant of a right to counsel. He was asked if he wished to make a refugee claim and he answered in the negative. As to the breach of the applicant's Charter rights, although the SIO had no jurisdiction to consider such a breach, I am of the view that the applicant has not established that he was deprived at that time of his right to liberty and security of the person under section 7 of the Charter. Of course, he was not allowed to enter the country but he had no right of entry at that stage. He might have been detained at the airport so as to prevent his illegal entry into Canada but there is no evidence that he was not free to return to Nigeria or Zimbabwe or to whatever country whence he came.
[8] As in Raman, so in this case, in my opinion s-s. 44(1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, precludes a Senior Immigration Officer from reopening a decision to exclude a person from Canada. No authority to do so arises by virtue of s. 7 of the Charter or the principle of fairness at common law. The Senior Immigration Officer in this case did not err in denying the applicant's request to reconsider the exclusion order on the ground that he had no authority to do so.
[9] The issue raised in this case concerning the applicant's right to counsel arises because it is said that he was not advised of his right to counsel, and was given no opportunity to consult counsel, prior to the issuance of the exclusion order. If that advice had been available before the order, the applicant would then have known as he here did not, that once the order was made he could not claim refugee status.
[10] That claim might carry more weight if the applicant had not already denied to immigration officers he had an interest in claiming refugee status. Having done so, it is not persuasive that the lack of opportunity for advice about whether such a claim might be made after an exclusion order resulted in a deprivation of a right to counsel, particularly that right as it is protected under s-s. 10(b) of the Charter. As Mr. Justice Dubénoted in Raman, supra, the applicant might have been detained at the airport so as to prevent his illegal entry to Canada but there is no evidence he was not free to go to some other country. Moreover, he was held or detained on arrival to assess his right to enter and remain in Canada, a matter ultimately determined by issuance of the exclusion order. There is no question that he was provided the opportunity to contact and meet with a lawyer thereafter, from the commencement of his continuing detention after the order issued. I am not persuaded that prior to that time it can be said the action of the immigration officer, in administering the Act on the applicant's arrival in Canada, gave rise to a claim under s-s. 10(b) of the Charter.
[11] For the foregoing reasons an Order goes dismissing the application for an order setting aside the decision denying reconsideration of the exclusion order issued to the applicant.
[12] Counsel for both parties were agreed that questions certified for consideration by the Court of Appeal in Raman, should also be certified here. I agree those questions should here be certified.
[13] The questions for certification pursuant to s-s. 83(1) of the Act, similar to those certified in Raman, are these:
Question 1: Does a senior immigration officer have jurisdiction, either at common law or pursuant to s. 7 of the Charter of Rights and Freedoms and section 52(1) of the Constitution Act, 1982, to consider re-opening a hearing which resulted in the issuance of a removal order in order for a person to claim protection as a Convention refugee?
Question 2: If a senior immigration officer does have jurisdiction to reopen is this jurisdiction limited to instances where there has been a breach of natural justice in respect of the original decision?
Question 3: If it is so limited, was there a breach of natural justice or the principles of fundamental justice in the failure of the senior immigration officer to advise the applicant of a right to counsel prior to conclusion of the hearing before the senior immigration officer which resulted in the issuance of a removal order?
W. Andrew MacKay
Judge
OTTAWA, Ontario
June 29, 1998.
FEDERAL COURT OF CANADA TRIAL DIVI ION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FH.E NO.: IMM-1853-97
STYLE OF CAUSE: Jad Daher v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 7, 1998
REASONS FOR ORDER BY:The Honourable Mr. Justice MacKay
DATED: June 29, 1998
APPEARANCES:
Mr. Hart A. Kaminker for the Applicant
Mr. Kevin Lunney for the Respondent
SOLICITORS OF RECORD:
Mamann, Kranc
Toronto, Ontario for the Applicant
Mr. George Thomson
Deputy Attorney General of Canada for the Respondent