[2000] 2 F.C. 538
IMM-3562-99
Jorge Ernesto Echeverria Albuja (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Albuja v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Lemieux J.—Montréal, October 25, 1999; Ottawa, January 28, 2000.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Motion for ruling applicant entitled to stay of execution of removal order — Citizen of Ecuador, seeking to enter Canada from U.S.A. — Claiming Convention refugee status — As not having valid visa, s. 20(1)(a) report made indicating entry would contravene Act — Conditional departure order issued under s. 28(1) — Convention refugee claim later denied — Leave sought to initiate judicial review proceedings of denial — S. 49(1) providing for stay of execution of removal order where application for leave to commence judicial review proceedings after IRB decision on refugee claim — S. 49(1.1) providing s. 49(1) not applicable to person residing, sojourning in U.S.A. who is subject of s. 20(1)(a) report — Considering statutory scheme, time fixed by Parliament for determining applicant’s residency, sojournment in U.S.A. when applicant first made subject of s. 20(1)(a) report — Time spent in Canada pending determination of refugee claim not considered in determining whether residing, sojourning in U.S.A. — Applicant subject to s. 49(1.1) exception to s. 49(1) statutory stay.
Citizenship and Immigration — Judicial review — Federal Court jurisdiction — Motion for ruling Minister cannot execute departure order pending determination of application for leave to initiate judicial review proceedings of denial of Convention refugee status pursuant to Immigration Act, s. 49(1) — Applicant also seeking certification of question for appeal to F.C.A. — Under s. 83, certified question can be formulated only at time of judgment on judicial review — Court not having jurisdiction to certify question on motion incidental to leave application for judicial review.
Construction of statutes — Immigration Act, s. 49(1.1) providing s. 49(1) stay of execution of removal order not applicable to person —residing or sojourning— in U.S.A. who is subject of s. 20(1)(a) report — Applicant, citizen of Ecuador, seeking admission to Canada from U.S.A., where stayed three months — S. 20(1)(a) report issued as lacking valid visa — Claimed Convention refugee status — Conditional departure notice under s. 28 issued — Living in Canada since 1996 — Convention refugee claim rejected in 1999; applicant seeking judicial review of that decision — Statutory scheme indicating time fixed by Parliament for determining residence, sojournment in U.S.A. when applicant first subject of s. 20(1)(a) report — Applicant’s days in Canada pending determination of refugee claim or subsequent appeal proceedings not considered in determining whether residing, sojourning in U.S.A. — Any other interpretation doing substantial violence to statutory scheme, nullifying enforcement provisions related to actions taken at port of entry — Also leading to absurd result, rendering s. 49(1.1) meaningless — Presumption Parliament intending to enact workable laws.
This was a motion for a ruling that the Minister cannot execute the departure order against the applicant. The applicant, his wife and son are citizens of Ecuador. The applicant, a career military man, overheard the plotting of a military coup, and feared that the military wanted to get rid of him. He fled Ecuador with his wife and son. They stayed in New York City for three months. In March 1996 they sought admission to Canada. The Canadian immigration officer made a paragraph 20(1)(a) report indicating that the applicant’s entry into Canada would contravene the Act, subsection 9(1) of which requires persons seeking admission to Canada to obtain a visa before presenting themselves for entry. The applicant claimed Convention refugee status. That same day a conditional departure order issued pursuant to subsection 28(1). In 1999 the Refugee Division determined that the applicant’s wife and son were Convention refugees, but that the applicant was not because there were serious reasons for considering that he had committed crimes against humanity. The applicant sought leave to initiate judicial review proceedings in respect of that determination. Execution of the departure order was sought based on an immigration officer’s report to the Deputy Minister stating that the applicant was in Canada without legal authorization. Subsequently the applicant’s wife filed an application for permanent residence naming her husband as a dependant.
Subsection 49(1) provides for the stay of execution of a removal order when an application for leave to commence judicial review proceedings after a decision of the Immigration and Refugee Board on a refugee claim has been filed. Subsection 49(1.1) provides that subsection (1) does not apply to a person residing or sojourning in the United States who is the subject of a report made pursuant to paragraph 20(1)(a). The applicant submitted that subsection 49(1.1) did not apply to him because he had been living in Canada since 1996. He asked the Court to certify a question under Immigration Act, subsection 83(1), which permits an appeal of a judgment of the Federal Court, Trial Division on an application for judicial review only if the Trial Division Judge has certified at the time of rendering judgment that a serious question of general importance is involved.
The issues were: (1) at what point in time is the assessment made that a person is residing or sojourning in the United States; and (2) whether the Court had jurisdiction to certify a question in the circumstances of this case.
Held, the motion should be dismissed and no certified question should be framed.
(1) The statutory scheme leads to only one conclusion: the time fixed by Parliament for determining the applicant’s status of residency or sojournment in the United States is when the applicant is first the subject of a paragraph 20(1)(a) report, i.e. March 20, 1996. The paragraph 20(1)(a) report was the basis of the conditional departure order made the same day. From the time of the making of a paragraph 20(1)(a) report the applicant’s days in Canada pending the determination of his refugee claim or subsequent appeal proceedings could not be taken into account in determining whether he was residing or sojourning in the United States. Any other interpretation would do substantial violence to the statutory scheme and would nullify or destroy the enforcement provisions related to actions taken at the port of entry. It would also lead to an absurd result and would render meaningless the provision of subsection 49(1.1) itself. The Minister responsible for immigration matters when the precursor of subsection 49(1.1) was introduced, noted that refugee claims took considerable time to be processed. If the applicant’s interpretation was correct, subsection 49(1.1) would have little or no application and that cannot have been Parliament’s intention; it is presumed Parliament’s intention is to make workable laws. The applicant was a person residing or sojourning in the United States, and the exception in subsection 49(1.1) applied to him.
(2) The Court did not have jurisdiction to certify a question on this motion which was an incidental proceeding to a leave application for judicial review. Under subsection 83(1) a certified question can be formulated, allowing for an appeal to the Federal Court of Appeal, only when the Trial Division gives judgment disposing of an application for judicial review.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 19(2)(d), 20(1),(2) (as am. idem, s. 12), 21, 22, 23 (as am. idem, s. 13; 1995, c. 15, s. 3), 24 (as am. idem, s. 4), 27 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5), 28 (as am. by S.C. 1992, c. 49, s. 17; 1995, c. 15, s. 6), 44 (as am. by S.C. 1992, c. 49, s. 35; 1995, c. 15, s. 7), 45 (as am. by S.C. 1992, c. 49, s. 35; 1995, c. 15, s. 8), 46.02 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 37), 46.04(1) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 38), 49(1) (as am. idem, s. 41), (1.1) (as enacted idem), 83(1) (as am. idem, s. 73).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Sereno v. Canada (Solicitor General) (1993), 75 F.T.R. 71 (F.C.T.D.); Kayumba v. Canada (Solicitor General) (1994), 76 F.T.R. 238; 24 Imm. L.R. (2d) 201 (F.C.T.D.).
MOTION (1) to stay execution of removal order pending disposition of judicial review leave application or Minister’s determination of applicant’s inclusion as dependant on wife’s permanent residence application and (2) for certification of a question for appeal. Motion denied and no question certified.
APPEARANCES:
William Sloan for applicant.
Normand Lemyre for respondent.
SOLICITORS OF RECORD:
William Sloan, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Lemieux J.:
INTRODUCTION
[1] The central issue in this motion is whether the applicant is entitled, under subsection 49(1) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 41)], to a statutory or automatic stay of the execution of a removal order pending decision of this Court on whether to grant leave for judicial review or pending a determination by the respondent on the applicant’s wife’s application to include him as a dependant in her application for permanent residence.
[2] Counsel for the applicant conceded at the hearing that his application would not cover the second prong of his request related to the respondent’s H&C [humanitarian and compassionate] pending decision; this aspect of the motion was abandoned.
[3] Subject to the exceptions contained in subsection 49(1.1) [as enacted idem] of the Act as well as those contained in paragraphs (e) and (f) of subsection 49(1) of that Act, a statutory stay of execution of a removal order is provided for in the subsection in defined circumstances, one of those being the filing of an application for leave to commence judicial review proceedings after a decision of the Immigration and Refugee Board on a refugee claim.
[4] The applicant argues that the exception contained in subsection 49(1.1) does not apply to him. Subsection 49(1.1) reads:
49. …
(1.1) Subsection (1) does not apply to
(a) a person residing or sojourning in the United States or St. Pierre and Miquelon who is the subject of a report made pursuant to paragraph 20(1)(a); or
(b) a person who has been determined to be not eligible to make a claim to be a Convention refugee by reason of paragraph 46.01(1)(b) and who is to be removed to a country with which the Minister has entered into an agreement under section 108.1 for sharing the responsibility for examining refugee claims. [Emphasis mine.]
THE FACTS
[5] The applicant, his wife and son are citizens of Ecuador. The applicant pursued a military career in the army of that country. He joined in 1973; by 1990 he reached the rank of first sergeant and expected to be promoted to lieutenant in 1996. He specialized in coding and decoding military messages. He became head of his unit. In July 1995, he said he overheard, accidentally, the plotting of a coup by the military, was seen overhearing the message and was arrested and detained for 20 days. He was then transferred to a remote region and feared the military wanted to get rid of him.
[6] He fled Ecuador with his wife and son on November 29, 1995. He went to New York City and stayed there for three months. On March 20, 1996, he drove to Canada and crossed the border at Blackpool, Quebec. His Ecuadorian passport contained a visa issued by the United States of America dated November 24, 1995 and expiring on February 24, 1996.
[7] At the Canadian border point, the Canadian immigration officer made a paragraph 20(1)(a) report to the senior immigration officer indicating he questioned the applicant seeking entry as a landed immigrant. In his report, the immigration officer said the applicant’s entry into Canada contravened or would contravene the Act and regulations, namely, subsection 9(1) [as am. idem, s. 4], which provides persons seeking admission into Canada must obtain a visa before presenting themselves for entry.
[8] That same day, March 20, 1996, the senior immigration officer issued the applicant a conditional departure order pursuant to subsection 28(1) [as am. by S.C. 1995, c. 15, s. 6] of the Act on account of the applicant’s refugee claim. On the same day, the senior immigration officer, under section 45 [as am. by S.C. 1992, c. 49, s. 35; 1995, c. 15, s. 8] of the Act, dealt with the applicant’s refugee claim and in accordance with section 46.02 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 37] of the Act, he sent the applicant’s refugee claim to the Refugee Division for decision.
[9] The refugee claims of the applicant, his wife, Gloria Albuja Echeverria, and son, Jorge Luis Echeverria were considered by the Refugee Division (the tribunal) who issued reasons for decision on June 25, 1999. The tribunal determined that his wife, Mrs. Echeverria and his son, Jorge Luis Echeverria were Convention refugees [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6]. However, the tribunal decided the applicant was not a Convention refugee; he was excluded by the application of Article 1F(a) of the Convention, because, in the tribunal’s view, there were serious reasons for considering that the applicant committed crimes against humanity. It is from this determination the applicant seeks leave to initiate judicial review proceedings in this Court.
[10] On October 1, 1999, an immigration officer, pursuant to section 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5] of the Act, made a report to the Deputy Minister stating the applicant was in Canada without legal authorization. On the basis of this report the execution of the applicant’s deportation was sought.
[11] On October 12, 1999, pursuant to subsection 46.04(1) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 38] of the Act, Mrs. Echeverria, having been determined to be a Convention refugee, filed an application for permanent residence in Canada and named her husband as a dependant.
THE ISSUES AND THE ARGUMENTS
[12] Two questions arise for decision in this motion. First, the substantive question, which has not been the subject of judicial comment, is when or at what point in time is the assessment made that a person is residing or sojourning in the United States within the meaning of subsection 49(1.1) of the Act.
[13] The applicant argues that this point in time is October 26, 1999, when the removal order against him is to be executed. The applicant says the words “residing” or “sojourning” are expressed by Parliament in the present tense and that the entire thrust of section 49, taken as a whole, speaks in terms of current and existing events or steps entitling a person to an automatic or statutory stay; he points out that, for example, the automatic stay is triggered when a person takes a step in the present and not in the past such as the filing of an application for leave and judicial review to this Court or an appeal to the Federal Court of Appeal on a certified question or files an application for leave to the Supreme Court of Canada.
[14] In other words, the execution of a removal order, which is the subject-matter of section 49, is the defining temporal event which fixes when the assessment of “residing” or “sojourning” is made. The applicant then argued, on the facts, that it is obvious the subsection 49(1.1) exception to an automatic or statutory stay does not apply to him because he has been living in Canada since March 20, 1996 and not in the United States.
[15] The respondent argues the applicant’s interpretation is flawed because subsection 49(1.1) contains the defining event that being the report made on March 20, 1996 by the immigration officer under paragraph 20(1)(a) and it is from this date the question as to where was the applicant “residing” or “sojourning” is to be answered. In this motion, I am not compelled to consider the meaning of the terms “residing” or “sojourning” since the applicant conceded that prior to coming to Canada the applicant had sojourned in the United States for a period of three months.
[16] The subsidiary question is whether this Court has the jurisdiction to certify a question arising out of this motion, which is in essence for a ruling or injunction that the respondent cannot execute the removal order against him. The respondent argues a certified question can only be framed under subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Act in relation to a judgment of this Court on an application for judicial review, which this motion is not.
ANALYSIS
(1) The main question
[17] Fundamentally, the main question is to be resolved by the application of proper principles of statutory interpretation. The approach to be taken has recently been expressed by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re)[1] where Iacobucci J. stated at pages 40-41:
Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), 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.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to be remedial” and directs that every Act shall “receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”.
[18] I begin the interpretative analysis by considering the terms of the statutory provision in play, here subsection 49(1.1), which I set out again for convenience:
49. …
(1.1) Subsection (1) does not apply to
(a) a person residing or sojourning in the United States or St. Pierre and Miquelon who is the subject of a report made pursuant to paragraph 20(1)(a); or
(b) a person who has been determined to be not eligible to make a claim to be a Convention refugee by reason of paragraph 46.01(1)(b) and who is to be removed to a country with which the Minister has entered into an agreement under section 108.1 for sharing the responsibility for examining refugee claims. [Emphasis mine.]
[19] Subsection 49(1.1) clearly links the concept of a person residing or sojourning in the United States to one who is the subject of a report made pursuant to paragraph 20(1)(a) of the Act.
[20] Section 20 is contained in Part III of the Act dealing with “Exclusion and Removal” and itself is introduced by a heading labelled “Removal at Ports of Entry”.
[21] Section 20 [subsection 20(2) (as am. by S.C. 1992, c. 49, s. 12)] of the Act reads:
20. (1) Where an immigration officer is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to a person examined by the officer or otherwise let that person come into Canada, the officer may detain or make an order to detain that person and shall
(a) subject to subsection (2), report that person in writing to a senior immigration officer; or
(b) allow that person to leave Canada forthwith.
(2) Where an immigration officer at a port of entry is of the opinion that it would or may be contrary to this Act or the regulations to grant admission to or otherwise let come into Canada a person who is arriving from the United States, the officer may, where a senior immigration officer to whom the officer would otherwise make a report pursuant to paragraph (1)(a) is not reasonably available, direct that person to return to the United States until such time as a senior immigration officer is available.
[22] Section 20 of the Act cannot be read in isolation particularly since a paragraph 20(1)(a) report is the basis upon which Parliament has authorized a senior immigration officer to exercise certain mandatory or discretionary statutory powers contained in sections 21 through 24 of the Act [sections 23 (as am. by S.C. 1992, c. 49, s. 13; 1995, c. 15, s. 3), 24 (as am. idem, s. 4)]. For example, section 21 of the Act provides that a paragraph 20(1)(a) report may be the basis of a removal order if the person is a member of any inadmissible class. Moreover, subsection 23(3) grants powers of detention to a senior immigration officer on a paragraph 20(1)(a) report and subsection 23(4) authorizes a senior immigration officer, subject to section 28 [as am. by S.C. 1992, c. 49, s. 17; 1995, c. 15, s. 6], to make an exclusion order on the basis of a paragraph 20(1)(a) report if he or she is satisfied the person is a member of an inadmissible class referred to in paragraph 19(2)(d) by reason of not possessing a valid or subsisting visa, which is what occurred in the applicant’s case.
[23] The section 28 limitation on the exercise of powers under subsection 23(4) of the Act is important because the applicant made a refugee claim at the border which he was entitled to do because he was “a person who is in Canada” as defined in section 44 [as am. by S.C. 1992, c. 49, s. 35; 1995, c. 15, s. 7] of the Act. As noted, in this case, the senior immigration officer, pursuant to section 45 of the Act, determined the applicant as having an eligible claim. Section 28 of the Act reads:
28. (1) Where a senior immigration officer is of the opinion that a person who claims to be a Convention refugee is eligible to have their claim referred to the Refugee Division and is a person in respect of whom the senior immigration officer would, but for this section, have made an exclusion order under subsection 23(4) or (4.01) or a departure order under subsection 27(4), the senior immigration officer shall make a conditional departure order against the person.
(2) No conditional departure order made pursuant to subsection (1) against a person who claims to be a Convention refugee is effective unless and until
(a) the person withdraws the claim to be a Convention refugee;
(a.1) the person is determined by a senior immigration officer not to be eligible to make a claim to be a Convention refugee and has been so notified;
(b) the person is declared by the Refugee Division to have abandoned the claim to be a Convention refugee and has been so notified;
(c) the person is determined by the Refugee Division not to be a Convention refugee and has been so notified; or
(d) the person is determined pursuant to subsection 46.07(1.1) or (2) not to have a right under subsection 4(2.1) to remain in Canada and has been so notified. [Emphasis mine.]
[24] In my view, the statutory scheme set out above leads to only one conclusion: the time fixed by Parliament for determining the applicant’s status of residency or sojournment in the United States is when the applicant was first the subject of a paragraph 20(1)(a) report, i.e. March 20, 1996. The paragraph 20(1)(a) report was the basis of his subsequent conditional departure order made that same day, because of his refugee claim. From that point in time, the making of a paragraph 20(1)(a) report, the clock stopped ticking and his days in Canada pending the determination of his refugee claim or subsequent appeal proceedings cannot be taken into account in determining whether he was residing or sojourning in the United States.
[25] Any other interpretation, in my view, would do substantial violence to the statutory scheme and would, in effect, nullify or destroy the carefully drafted enforcement provisions related to actions taken at ports of entry. In addition, any other interpretation would lead to an absurd result and would render meaningless the provision of subsection 49(1.1) itself. The Minister responsible for immigration matters, when the precursor of subsection 49(1.1) of the Act was introduced in 1952, noted that refugee claims took considerable time to be processed. If the applicant’s interpretation was correct, subsection 49(1.1) would have little or no application and that cannot be Parliament’s intention; it is presumed Parliament’s intention is to make workable laws.
[26] I appreciate that if the applicant had not sojourned in the United States before making a refugee claim, he might have been entitled to a statutory stay provided he did not fall within the further exceptions of paragraphs 49(1)(d) and (f). The internal structure of the Act does not reveal the policy considerations which led Parliament to enact the exception and external sources consulted are not helpful on the point. The Court is aware, however, that Canada and the United States have entered into a bilateral agreement for the exchange of deportees.
[27] For these reasons, I find that the applicant is a person residing or sojourning in the United States and as a result the exception provided in subsection 49(1.1) applies to him.
(2) The subsidiary question
[28] The applicant asked this Court to certify a question on the basis that there is a matter arising under the Immigration Act which falls under subsection 83(1) of that Act which reads:
83. (1) A judgment of the Federal Court—Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court—Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
(2) Where a judgment of the Federal Court—Trial Division is appealed to the Federal Court of Appeal pursuant to subsection (1), the appeal shall be commenced by filing a notice of appeal within fifteen days after the pronouncement of the judgment.
[29] However, the respondent argues the Federal Court, Trial Division has no jurisdiction under subsection 83(1) of the Act to certify a question arising from the present motion which is an incidental proceeding to a leave application for judicial review.
[30] After carefully examining the jurisprudence of this Court on this matter, I conclude that I have no jurisdiction to certify a question within the context of the motion before me. My colleague Pinard J. stated in Sereno v. Canada (Solicitor General) (1993), 75 F.T.R. 71 (F.C.T.D.), at page 74:
It is clear from the wording of these provisions that certification can apply only to a judgment on an application for judicial review. The application for a stay made by the applicant is clearly not an application for judicial review pursuant to s. 83(1) of the Immigration Act or s. 18 of the Federal Court Immigration Rules, 1993. It is simply an incidental application made in connection with an application for leave pursuant to s. 82.1 of the Immigration Act.
[31] Sereno, supra, was followed by my colleague Nadon J. in Kayumba v. Canada (Solicitor General).[2] In my view, the wording of subsection 83(1) leaves no doubt that a certified question can only be formulated on a judgment on judicial review.
CONCLUSION
[32] For all these reasons, this motion is dismissed and no certified question is framed.