Date: 19980821
Docket: IMM-1712-96
Between :
LEIB WALDMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of Citizenship and Immigration Canada dated May 1, 1996, not to process the applicant's claim to be a Convention refugee pursuant to subsection 44(1) of the Immigration Act, which reads:
| 44. (1) Any person who is in Canada, other than a person against whom a removal order has been made but not executed, unless an appeal from that order has been allowed, and who claims to be a Convention refugee may seek a determination of the claim by notifying an immigration officer. |
44. (1) Toute personne se trouvant au Canada peut revendiquer le statut de réfugié au sens de la Convention en avisant en ce sens un agent d'immigration, à condition de ne pas être frappée d'une mesure de renvoi qui n'a pas été exécutée, à moins que la mesure n'ait été annulée en appel. |
[2] The applicant seeks the following relief:
| (a) a declaration pursuant to section 52 of the Canadian Charter of Rights and Freedoms (the Charter) that subsection 44(1) of the Immigration Act (the Act) is unconstitutional and is of no force and effect to the extent of its inconsistency with section 7 of the Charter; |
| (b) in the alternative, an Order pursuant to section 24 of the Charter, that the application of subsection 44(1) of the Act violates the applicant's rights under section 7, and therefore, a constitutional exemption is required; |
| (c) in the further alternative, an Order that subsection 44(1) is contrary to subsections 1(b) and 2(e) of the Bill of Rights; |
| (d) an Order quashing the decision of the immigration officer not to process the applicant's refugee claim; |
| (e) an Order compelling the respondent to process the applicant's refugee claim. |
[3] In light of the respondent's submission that the applicant's constitutional arguments are without factual basis, I asked counsel for the parties to present full arguments on that specific submission, with the understanding that the other issues would be dealt with at a later stage if necessary.
[4] Upon hearing counsel for the parties and reviewing the evidence, the application is dismissed on the ground that the applicant has failed to show a sufficient factual basis for his constitutional and quasi-constitutional arguments.
[5] In MacKay v. Manitoba, [1989] 2 S.C.R. 357,1 the Supreme Court of Canada stated at pages 361 and 362:
| Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. [. . .] Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. |
and at page 366:
| A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position. |
[6] In the case at bar, there is no evidence that the applicant, who was born in Romania and is stateless, is being removed or likely to be removed to Romania. On the facts, the applicant is not being deported; on the contrary, pursuant to a Court Order, he must stay in Canada and has therefore surrendered his travel documentation. The decision of where to remove the applicant has not been made. Furthermore, it would appear from the travel documentation adduced as evidence and from admissions on cross-examination that the applicant is a Convention refugee in both Belgium and the United Kingdom and is a permanent resident of England. Accordingly, the applicant's status in either Belgium or the United Kingdom clearly undermines the claim of fearing persecution upon return to Romania, as the applicant will most likely not be removed to Romania, pursuant to section 52 of the Act.
[7] Thus, given all the speculative uncertainties, the proper factual foundation for a Charter and Bill of Rights determination is not before the Court. There is simply no evidence of any likelihood of infringement of the applicant's rights guaranteed by the Charter or the Bill of Rights.
[8] For the above reasons, the application for judicial review is dismissed. I am therefore not ruling on whether this Court has the jurisdiction, in the context of an application for judicial review of a decision made by a senior immigration officer, to decide a constitutional challenge to the validity of a section of the Act.
[9] Given the decisions of the Supreme Court of Canada in Danson (supra) and MacKay (supra), I agree with counsel for the respondent that this matter does not raise any question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
August 21, 1998
__________________1 See also Danson v. Ontario (Attorney General) , [1990] 2 S.C.R. 1086.