IMM-4466-97
IMM-4468-97
Kumba Jekula (Applicant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Jekulav. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Evans J."Toronto, September 18; Ottawa, October 20, 1998.
Administrative law — Judicial review — Senior immigration officer (SIO) deciding applicant ineligible to have refugee claim determined by virtue of Immigration Act, s. 46.01(1)(a) on ground recognized as Convention refugee in Sierra Leone — Before interview SIO indicating not necessary for lawyer to accompany applicant — After applicant's arrival for interview, SIO unsuccessfully attempting to call lawyer — Interview proceeding in absence of lawyer — Duty of fairness breached when decision maker improperly refusing to permit representation at hearing — Not normally imposing positive obligation on administrative decision maker to advise person concerned may be represented by counsel — SIO's advice not misleading, unfair, erroneous in law — SIO not refusing request for legal representation as applicant never indicating wanted same — Immigration Manual recommending permitting assistance of counsel provided ready, able to proceed immediately — SIO not failing to comply with procedural guideline established in Manual since no request for representation made — Manual not instructing SIO to inform claimants may have counsel present — Nor was attempt to call counsel representation obliged to ensure counsel present — Question certified: was decision applicant ineligible to have refugee claim determined by Refugee Division in breach of duty of fairness, in that SIO interviewed applicant in absence of counsel, when counsel may have been available to attend interview if SIO had not advised applicant lawyer's attendance at interview not necessary?
Constitutional law — Charter of Rights — Life, liberty and security — Senior immigration officer (SIO) finding applicant ineligible for refugee determination by virtue of Immigration Act, s. 46.01(1)(a) on ground recognized as Convention refugee in Sierra Leone; issuing exclusion order — That applicant not represented by counsel at interview not breach of Charter, s. 7 — Right to have claim determined by Refugee Division not included in right to life, liberty, security of person — Applicant cannot be lawfully removed from Canada without assessment of risks may face if returned to Sierra Leone — That assessment must comply with principles of fundamental justice — That issue of exclusion order important step in process that may lead to person's removal not sufficient to attract s. 7 to exercise of power to issue exclusion order, even where person apprehending serious risk of death, other physical violence or detention if returned to particular country — Immigration Act, ss. 53, 114(2) providing opportunities for assessment of risks facing person before exclusion order executed.
Citizenship and Immigration — Immigration practice — SIO finding applicant ineligible to have refugee claim determined by virtue of Immigration Act, s. 46.01(1)(a) on ground recognized as Convention refugee in Sierra Leone — Applicant having only refugee identity card issued by Sierra Leone — SIO may normally assume evidence establishing country granting asylum will also enable claimant to re-enter country — If evidence country of asylum will not readmit claimant, SIO may only find claimant ineligible under s. 46.01(1)(a) if satisfied, on reasonable grounds, claimant will be readmitted — No evidence applicant would not be readmitted to Sierra Leone where lived for seven years — Reasonable basis for belief could be returned to Sierra Leone — —Can be returned— not requiring SIO to determine whether claimant having well-founded fear of persecution in country already granting asylum — Repeal in 1993 of specific provision dealing with issue suggesting should not be read back into statute — Requiring SIO to determine whether claimant satisfying definition of Convention refugee incompatible with expeditious process contemplated by statutory scheme for screening certain claims out of Refugee Division's jurisdiction — Other provisions providing protection for persons in need of Canada's protection because fearing persecution in country of asylum i.e. s. 53 — Question certified: did SIO err in law in concluding for purpose of s. 46.01(1)(a) applicant —can be returned— to country where documentary evidence recognized as refugee, in absence of both travel document establishing right to enter or reside in that country, and of evidence will not be admitted?
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Before interview, SIO indicating not necessary for lawyer to accompany applicant — After applicant's arrival, SIO unsuccessfully attempting to call lawyer — Interview proceeding in absence of lawyer — SIO issuing exclusion order on ground applicant not having travel documents normally required of person seeking entry to Canada — Because of limited scope of issues; SIO's discretion under s. 23(4) to issue exclusion orders against inadmissible persons; summary, expeditious nature of proceeding contemplated by statutory scheme, no automatic right to counsel, but discretion in officer to permit person to have lawyer present — No duty on officer to advise claimant should be represented, and in absence of request therefor, SIO not refusing to permit applicant to have lawyer with her at interview — Reasonable in circumstances for SIO to decide not to adjourn interview — Question certified: was exclusion order in breach of duty of fairness, in that SIO interviewed applicant in absence of counsel when counsel may have been available to attend interview if SIO had not advised applicant lawyer's attendance at interview not necessary?
This was an application for judicial review of a senior immigration officer's (SIO) decision that the applicant was ineligible to have her Convention refugee claim referred to the Convention Refugee Determination Division, and of an exclusion order. The applicant is a citizen of Liberia, which she left in 1990 because of the civil war. She went to Sierra Leone where she was recognized as a refugee, and lived for six years in a refugee camp. After an attack on the camp, she moved to the capital, Freetown, where Liberians were regarded with some hostility. Following a sexual assault by a soldier, the applicant made her way to Canada in 1997 and claimed refugee status. In October she was called to meet with an SIO following his receipt of a paragraph 20(1)(a) report. That paragraph requires an immigration officer who believes that a person is not legally admissible to Canada to report such person to an SIO. Before the interview, the applicant's social worker inquired whether the applicant needed to have a lawyer present. The SIO replied that that would not be necessary. After the applicant's arrival for the interview, the SIO called the lawyer, but was unable to reach him. The interview proceeded in the absence of a lawyer. The SIO found the applicant ineligible to have a refugee determination in Canada by virtue of paragraph 46.01(1)(a), on the ground that she had already been recognized as a Convention refugee in Sierra Leone, a country, he said after consulting with a superior, that was not the subject of a removal moratorium. Subsection 46.01(1) provides that a person is not entitled to have a Convention refugee claim determined by the Refugee Division if the person has been recognized as a Convention refugee by a country other than Canada, to which the person can be returned.
The only document that the applicant had with her was a refugee identity card issued by the Government of Sierra Leone, which stated that it was issued under the United Nations Convention of 1951 Relating to the Status of Refugees. The SIO issued an exclusion order against the applicant on the ground that she did not have any of the travel documents normally required of those seeking entry to Canada. Subsection 23(4) authorizes the issue of exclusion orders against persons who are inadmissible to Canada.
The issues were: (1) whether the SIO breached the common law duty of fairness or Charter, section 7 because the applicant was not represented by counsel at the interview; (2) whether the SIO committed an error of law when he found that Sierra Leone was a country to which the applicant "can be returned" for the purpose of paragraph 46.01(1)(a ), even though she had no proof that she had a legal right to enter Sierra Leone, and the officer made no inquiries as to her legal status there; and (3) whether the exclusion order was invalid because the applicant was not represented by counsel when interviewed by the officer prior to his issuing the order.
Held, the application should be dismissed.
(1)(a) The duty of fairness is breached when a decision maker improperly refuses to permit a person to be represented at a hearing. It does not normally impose a positive obligation on an administrative decision maker to advise the person concerned that he may be represented by counsel, much less to give an opinion that it is in the person's best interest to take advantage of that opportunity. In certain circumstances fairness may impose a positive duty on decision makers, but the applicant had the assistance of a social worker, who accepted the SIO's opinion without deeming it necessary to inform and seek the advice of the applicant's lawyer. Nothing in the SIO's advice could be characterized as a refusal of representation, as misleading, or as otherwise unfair or erroneous in law. The SIO did not refuse a request for legal representation, because the applicant never indicated that this was what she wanted. The Immigration Manual recommends that persons be allowed the assistance of counsel during an interview with an SIO, as long as counsel is ready and able to proceed immediately. It was arguable that the Manual goes further in permitting the presence of counsel than the common law duty of fairness requires, in that the common law may confer on the officer a wider discretion to refuse to permit counsel than that suggested in the Manual. In acting as he did, the SIO did not fail to comply with the procedural guideline established in the Manual, since no request for representation had been made by either the applicant or anyone on her behalf. The Manual does not instruct SIOs to inform claimants that they may have counsel with them at the interview if they wish. Nor was the attempt to call counsel a representation that the SIO was obliged to ensure that counsel was present. If the SIO could simply have proceeded with the interview without a lawyer present, it would be unreasonable to set aside his decision on the ground of procedural unfairness merely because, perhaps with the Manual in mind, he had been conscientious enough to see if her lawyer was available. Since no request for counsel was made by or on behalf of the applicant, it could not be said that she was denied counsel in breach of the duty of fairness.
(b) A decision under paragraph 46.01(1)(a) does not deprive an applicant of the right to life, liberty and security of the person. First, the right to have a claim determined by the Refugee Division, is not included in "the right to life, liberty and security of the person". Second, it may be a breach of the rights protected by section 7 for the Government to return a non-citizen to a country where she fears that she is likely to be subjected to physical violence or imprisoned. However, the applicant cannot be lawfully removed from Canada without an assessment of the risks that she may face if returned to Sierra Leone. And the manner in which that assessment is conducted must comply with the principles of fundamental justice.
(2) An SIO may normally assume that the evidence establishing that a country has granted asylum to the claimant will also enable her to re-enter that country. However, if presented with evidence that, for some reason, the immigration authorities of the country of asylum will not readmit the claimant, the SIO may only find the claimant ineligible under paragraph 46.01(1)(a) if satisfied on reasonable grounds that the claimant will in fact be readmitted. There was no evidence that the applicant would not be readmitted to Sierra Leone. The Refugee Identity card proved her refugee status in that country, where she had lived for seven years as a permanent resident. Accordingly, the SIO had a reasonable basis for believing that the applicant could be returned to Sierra Leone.
The question was raised of whether a person "can be returned" to the country that has granted asylum, when the person has a well-founded fear of persecution on the prescribed grounds in that country. The words "can be returned" do not require the SIO to determine whether the claimant has a well-founded fear of persecution in the country that has already granted asylum. The repeal in 1993 of the specific provision dealing with this very issue suggested that it should not be read back into the statute through the words "can be returned" in paragraph 46.01(1)(a ). To require a SIO to determine whether a claimant has satisfied the definition of a Convention refugee is incompatible with the expeditious process contemplated by the statutory scheme for screening certain claims out of the Refugee Division's jurisdiction. That was not to say that the Act provides no protection for persons who are in need of Canada's protection because they fear persecution in the country where they have been granted asylum. Subsection 53(1) specifically prohibits the removal of persons who have been found ineligible to have their claims referred to the Refugee Division, where the person's life or freedom would be threatened on Convention grounds in the country to which it is proposed to remove them.
(3) Because of the very limited scope of the issues to be decided and of the discretion to be exercised by an SIO under subsection 23(4) (authorizing the issue of exclusion orders against persons who are inadmissible to Canada), and the summary and expeditious nature of the proceeding contemplated by the statutory scheme (as contrasted with an inquiry conducted by an adjudicator), there is no automatic right to counsel, but a discretion in the officer to permit a person to have a lawyer present. However, there is no duty on an officer to advise a claimant that she should be represented, and in the absence of a request, the SIO did not refuse to permit the applicant to have a lawyer with her at the interview. In the circumstances, it was reasonable for the SIO to decide not to adjourn the interview.
That the issue of an exclusion order is an important step in the process that may lead to the person's removal from Canada was not sufficient to attract Charter, section 7 to the exercise of the power to issue an exclusion order, even where a person apprehends serious risk of death, other physical violence or detention if returned to a particular country. Section 53 and subsection 114(2) which confers a broad discretion to admit persons whom the Minister is satisfied should be admitted owing to the existence of compassionate or humanitarian considerations) provide opportunities for an assessment of the risks facing the person before the exclusion order is executed.
The following questions were certified: (1) were the SIO's decisions that the applicant was ineligible to have her refugee claim determined by the Refugee Division, and excluding her from Canada, made in breach of the duty of fairness, in that the SIO interviewed the applicant in the absence of counsel, when counsel may have been available to attend the interview if the SIO had not advised the applicant, through her social worker, that a lawyer's attendance at the interview was not necessary; and (2) did the SIO err in law in concluding for the purpose of paragraph 46.01(1)(a) that the applicant "can be returned" to the country where she has documentary evidence that she has been recognized as a refugee, in the absence of both a travel document establishing that she has a right to enter or reside in that country, and of evidence that in fact she will not be admitted?
statutes and regulations judicially considered
Adjudication Division Rules, SOR/93-47.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix I, No. 44], s. 7.
Convention Refugee Determination Division Rules, SOR/93-45.
Immigration Act, R.S.C., 1985, c. I-2, ss. 20(1)(a), 23(4) (as am. by S.C. 1995, c. 15, s. 3), 29(1) (as am. by S.C. 1992, c. 49, s. 18), 30 (as am. idem, s. 19), 46.01(1)(a) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), (2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36), 53(1) (as am. idem, s. 43), 69(1) (as am. idem, s. 59), 69.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), 83(1) (as am. idem, s. 73), 114(2) (as am. idem, s. 102).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 28.
cases judicially considered
applied:
Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252; (1995), 32 Imm. L.R. (2d) 38 (T.D.).
considered:
Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; (1993), 101 D.L.R. (4th) 654; 10 Admin. L.R. (2d) 1; 20 C.R. (4th) 34; 14 C.R.R. (2d) 1; 18 Imm. L.R. (2d) 245; 150 N.R. 241; Nayci v. Canada (Minister of Citizenship and Immigration) (1995), 105 F.T.R. 122 (F.C.T.D.); Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.); Boun-Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259; (1980), 113 D.L.R. (3d) 414; 36 N.R. 431 (C.A.).
referred to:
Cooper v. Wandsworth Board of Works (1863), 14 C.B. (N.S.) 180; 143 E.R. 414; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.).
authors cited
Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback Publishing, 1998.
Canada. Citizenship and Immigration. Immigration Manual: Port of Entry. Ottawa: Citizenship and Immigration Canada.
APPLICATION for judicial review of a senior immigration officer's decision that the applicant was ineligible to have her Convention refugee claim referred to the Convention Refugee Determination Division, and of an exclusion order. Application dismissed.
appearances:
Osborne G. Barnwell for applicant.
Andrea Horton for respondent.
solicitors of record:
Ferguson, Barnwell, North York, Ontario, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Evans J.: The applicant in these proceedings, Ms. Jekula, seeks judicial review of two closely related decisions of a senior immigration officer, Mr. Snow. In the first (IMM-4466-97), Mr. Snow found the applicant to be ineligible to have her claim to be recognized in Canada as a refugee referred to the Convention Refugee Determination Division of the Immigration and Refugee Board (hereinafter the Refugee Division). In the second decision (IMM-4468-97), which was consequential on the first, he issued her an exclusion order. Although not formally joined, these two applications were heard together and, because they share similar facts, it will be convenient to deal with both of them in a single set of reasons.
A. The Facts
The applicant is a citizen of Liberia, from which she left to go to Sierra Leone in 1990 as a result of the civil war that was then tearing the country apart. Her husband was killed in her presence by rebel troops. In Sierra Leone she was recognized as a refugee and lived for six years in a refugee camp. However, after marauding Sierra Leoneans attacked those in the camp she went with her children to the capital, Freetown, where she found that Liberians were regarded with some hostility and held responsible for the spread of civil strife to Sierra Leone. Following a sexual assault on the applicant by a soldier, and an escalating civil war, the applicant, one of her daughters and other family members, made their way from Freetown to Canada in August 1997.
When she arrived at Pearson International Airport she told the immigration officer that she was fleeing from the civil war in Sierra Leone, and claimed refugee status. She was given a copy of the relevant form, Imm. 5389, entitled Information on Admissibility to Canada and a Claim to be a Convention Refugee. When she had difficulty in completing it correctly, she was referred to the African Training and Employment Centre for assistance. In October 1997 she was called to meet with a senior immigration officer at the airport, Mr. Snow, following his receipt of a paragraph 20(1)(a) [of the Immigration Act, R.S.C., 1985, c. I-2] report from an immigration officer stating the officer's opinion that Ms. Jekula was not admissible to Canada. Before she went for the appointment, her social worker, Mr. Edwards, asked Mr. Snow if Ms. Jekula needed to have a lawyer with her at the interview; Mr. Snow said that that would not be necessary.
After the applicant had arrived for her interview, Mr. Snow called Mr. Kabateraine, the lawyer to whom Ms. Jekula had been referred by the African Training and Employment Centre. According to the applicant, Mr. Snow seemed anxious when he could not reach him, and told the applicant that he could not wait much longer. The interview then proceeded in the absence of a lawyer. Pursuant to paragraph 46.01(1)(a) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36] of the Immigration Act, R.S.C., 1985, c. I-2, Mr. Snow found the applicant ineligible to have a refugee determination in Canada, on the ground that she had already been recognized as a Convention refugee in Sierra Leone, a country, he said, after consulting with a superior, that was not the subject of a removal moratorium.
The only document that Ms. Jekula had with her was a Refugee Identity Card issued by the Government of Sierra Leone. The card stated that it was "issued under the United Nations Convention of 1951 relating to the Status of Refugees". It also bore the insignia of the Red Cross Society and the name of the refugee camp where the applicant had lived.
Ms. Jekula was obviously surprised by Mr. Snow's decision, since other members of her family, who had arrived at the airport on a different day, had had their claims referred for determination by the Refugee Division. A possible explanation of this apparent discrepancy is that, unlike Ms. Jekula, they claimed protection not only against Liberia, but against Sierra Leone as well, on account of the civil war that was in progress there. After receiving a report from an immigration officer pursuant to paragraph 20(1)(a) of the Immigration Act to the effect that it would be contrary to the Act or regulations to admit the applicant, Mr. Snow issued an exclusion order against the applicant, on the ground that she did not have any of the travel documents normally required of those seeking entry to Canada.
B. The Statutory Framework
Subsection 46.01(1) of the Immigration Act authorized Mr. Snow to determine whether the applicant was eligible to have her claim referred to the Refugee Division for adjudication. The relevant provision is as follows:
46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person
(a) has been recognized as a Convention refugee by a country, other than Canada, that is a country to which the person can be returned;
Subsection 23(4) [as am. by S.C. 1995, c. 15, s. 3] authorizes the issue of exclusion orders against persons who are inadmissible to Canada:
23. . . .
(4) Subject to section 28, a senior immigration officer shall allow a person to leave Canada forthwith or make an exclusion order against the person where the senior immigration officer receives a report made pursuant to paragraph 20(1)(a) in respect of the person and the senior immigration officer is satisfied that
(a) the person is a member of
. . .
(ii) the class of persons referred to in paragraph 19(2)(d) by reason of the fact that the person does not possess a valid and subsisting passport, visa or student or employment authorization and was not granted landing or was granted landing but later became subject to a removal order; and
Section 28, which does not apply to the facts of this case, provides that a conditional order shall be made against a person whose refugee claim has been referred to the Refugee Division. Paragraph 20(1)(a) requires an immigration officer who believes that a person is not, or may not be, legally admissible to Canada to report that person to a senior immigration officer.
In order to put these provisions of the Act into context, it should also be noted that section 53 provides an additional safeguard against the removal of persons who have not been recognized in Canada to a country where they may be subject to persecution. As relevant to these proceedings, subsection 53(1) [as am. by S.C. 1992, c. 49, s. 43] provides:
53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless . . . .
For the sake of completeness it may also be noted that subsection 114(2) [as am. idem, s. 102] of the Act confers a broad discretion to admit persons whom the Minister is satisfied should be admitted "owing to the existence of compassionate or humanitarian considerations". If the applicant believes that she is likely to face persecution on the prescribed grounds, or otherwise to be at risk, she can still avail herself of these provisions.
C. The Issues
Although his memorandum of argument had canvassed a wide range of issues, at the hearing the applicant's counsel was able to narrow them to three, largely because he consented to the respondent's making a late addition to the tribunal record to include a copy of the subsection 20(1) report written by an immigration officer with respect to Ms. Jekula, which Mr. Snow had before him when he interviewed her. The issues are as follows:
1. Did Mr. Snow, a senior immigration officer, breach the common law duty of fairness or section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] because the applicant was unrepresented by counsel at the interview at which he found that, by virtue of paragraph 46.01(1)(a) of the Immigration Act, Ms. Jekula was not eligible to have her refugee claim determined by the Refugee Division?
2. Did Mr. Snow, a senior immigration officer, commit an error of law when he found that Sierra Leone, which had recognized the applicant as a refugee, was a country to which she "can be returned" for the purpose of paragraph 46.01(1)(a ), even though she had no visa or other document proving that she had a legal right to enter Sierra Leone, and the officer made no inquiries as to her legal status there?
3. Was the exclusion order issued to the applicant by Mr. Snow, a senior immigration officer, invalid because she was not represented by counsel when interviewed by the officer prior to his issuing the order?
D. Analysis
1. Right to Counsel
(a) the common law duty of fairness
The Immigration Act is silent on the procedures that must be followed by a senior immigration officer prior to determining whether a person is eligible to have a refugee claim adjudicated by the Refugee Division. In contrast, statutory provision is made for oral hearings, including a right to counsel, at an inquiry conducted by an adjudicator to decide whether a deportation order should be issued (subsection 29(1) [as am. by S.C. 1992, c. 49, s. 18], section 30 [as am. idem, s. 19] of the Act; Adjudication Division Rules, SOR/93-47) and before the Refugee Division when it is adjudicating a claim by a person to be recognized in Canada as a refugee (subsection 69(1) [as am. by S.C. 1992, c. 49, s. 59], section 69.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60] of the Act; Convention Refugee Determination Division Rules, SOR/93-45).
Despite the absence of statutory procedural rights, "the justice of the common law will supply the omission of the legislature" (Cooper v. Wandsworth Board of Works (1863), 143 E.R. 414, per Byles J., at page 420). Nowadays, this omission is supplied through the imposition of the duty of fairness on public officials "making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual" (Cardinal et al. v. Director of Kent Institution , [1985] 2 S.C.R. 643, at page 653, per Le Dain J.).
It seems clear that the duty of fairness applies to the exercise by senior immigration officers of their power to determine a refugee claimant's eligibility to be referred to the Refugee Division, and I do not understand counsel for the Minister to have taken a different view. An adverse determination by the senior immigration officer deprives the individual of important procedural and substantive statutory rights enjoyed by other refugee claimants whose claims do go before the Board. Less immediately, a finding of ineligibility adversely affects claimants' interests by putting in motion a process that may culminate in their removal from Canada.
The more difficult question is whether in the context of this statutory scheme, and the particular facts of this case, the senior immigration officer breached the duty of fairness when he proceeded to determine that the applicant was ineligible for a refugee determination by the Refugee Division without adjourning until the applicant's lawyer could be present.
Mr. Barnwell, counsel for the applicant, conceded in the course of argument that the duty of fairness did not confer on refugee claimants an automatic right to be represented by counsel prior to a determination by a senior immigration officer pursuant to subsection 46.01(1). Rather, the officer has a discretion as to whether to permit a person to be represented, which in some circumstances fairness will require to be exercised in favour of the individual.
The statutory scheme certainly tells against an automatic right to legal representation on demand. The contrast with the relatively formal hearings provided to those whose claims are decided by the Refugee Division suggests that the initial screening for eligibility is intended to be much more summary and expeditious in nature, and not subject to the expense, delays and formality typically associated with hearings where lawyers routinely appear. Moreover, the statutory criteria for eligibility will normally be easy to apply to the facts of a given case, and will not normally raise complex issues of fact or law, or require the officer to exercise any substantial discretion. Accordingly, the presence of counsel will not normally be necessary to ensure both that the claimant can put her case adequately before the officer, and the officer does not make a mistake in the exercise of the statutory decision-making power.
On the other hand, as I have already noted, an adverse determination by the officer has a sufficiently significant impact on important rights and interests of the individual that it would be wrong to conclude that the duty of fairness could never require the officer to permit the claimant to have legal counsel present at the interview prior to the making of the decision.
Mr. Barnwell argued that the circumstances of this case required the senior immigration officer to adjourn the interview in order that Ms. Jekula's lawyer could be present. When asked by Mr. Edwards, the applicant's case worker at the Family Residence, Metropolitan Toronto Community Services, whether Ms. Jekula should bring counsel with her to the interview, Mr. Snow's statement that she did not need a lawyer, which Mr. Edwards communicated to Ms. Jekula, was the reason why she was not represented. If Mr. Snow had not given this advice, Ms. Jekula would presumably have attended with her lawyer, Mr. Kabateraine, who was assisting with her immigration difficulties. Moreover, Mr. Barnwell argued, Ms. Jekula's case raised a legal question that was not routine, namely whether Sierra Leone was a country to which she "can be returned" within the meaning of paragraph 46.01(1)(a ).
The first difficulty that I have with this argument is its assumption that Mr. Snow's advice to Mr. Edwards that Ms. Jekula did not need to be represented by a lawyer was in some way wrong. It is important to remember that the duty of fairness is breached when a decision maker improperly refuses to permit a person to be represented at a hearing. It does not normally impose a positive obligation on an administrative decision maker to advise the person concerned that they may be represented by counsel, much less to give their opinion that it is in the person's best interest to avail themselves of the opportunity.
Mr. Barnwell argued that it is unrealistic to expect refugee claimants, such as Ms. Jekula, to be aware of their legal rights in Canada, or to be in a position to assert them. Accordingly, if claimants are to be afforded a reasonable opportunity to be represented at section 46.01 interviews subject to the exercise of the officer's discretion, then it is essential that senior immigration officers are more forthcoming about the importance of legal representation than was Mr. Snow.
I can imagine circumstances in which fairness may well impose the kind of positive duty on decision makers suggested by Mr. Barnwell. By way of analogy, it may be noted that section 30 of the Immigration Act requires adjudicators to advise a person who is subject to an inquiry "of the person's right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry". However, in this case, Ms. Jekula was not left to cope with the situation entirely on her own. She had the assistance of Mr. Edwards, a social worker, whose responsibilities included referring families to appropriate agencies, and who could be expected to have some familiarity with immigration matters, and he accepted Mr. Snow's opinion without thinking it necessary to inform and seek the advice of Mr. Kabateraine, whom he knew was Ms. Jekula's lawyer.
Ideally, when asked by Mr. Edwards whether Ms. Jekula needed counsel, Mr. Snow might perhaps have said something along the following lines: "Well, the issues decided at these section 46.01 interviews do not usually require the presence of a lawyer, but if the decision goes against Ms. Jekula it potentially could have serious consequences for her, including ultimately her removal from Canada. It is up to her and her lawyer to decide whether they think that it would be helpful for him to be there, and it is our practice to allow counsel to be present as long as this does not cause a delay." However, fairness does not require procedural perfection, and I see nothing in Mr. Snow's advice that could be characterized as a refusal of representation, as misleading, or as otherwise unfair or erroneous in law.
Accordingly, when Mr. Snow said that he was unwilling to adjourn to enable counsel to be present, he was not refusing a request by Ms. Jekula to be legally represented, because she never indicated that this is what she wanted. Is it relevant that at the interview Mr. Snow himself attempted to contact Mr. Kabateraine, unsuccessfully as it turned out, and, according to Ms. Jekula, seemed anxious that she had no lawyer with her? In trying to contact Mr. Kabateraine, Mr. Snow may well have had in mind the following recommendation contained in the Immigration Manual, Senior Immigration Functions at Ports of Entry, PE-10 (at page 4):
Despite not being entitled to counsel, persons may be allowed the assistance of counsel during an SIO interview, as long as the person acting as counsel is ready and able to proceed immediately.
In some circumstances, it is true, a court may find an administrative agency to be in breach of the duty of fairness because it has not complied with procedures contained in undertakings by public officials or in non-legally binding instruments, such as the Manual referred to above, even though those procedures would not otherwise have been included in the duty of fairness as it applies to the exercise of that power by the agency: see Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998), at page 7:2431. It is arguable that the Manual goes further in permitting the presence of counsel than the common law duty of fairness requires, in that the common law may confer on the officer a wider discretion to refuse to permit counsel than that suggested in the Manual.
However, I am not satisfied that, in acting as he did, Mr. Snow failed to comply with the procedural guideline established in the Manual, since no request for representation had been made by either Ms. Jekula or anyone else on her behalf, such as Mr. Edwards. The Manual does not instruct senior immigration officers to inform claimants that they may have counsel with them at the interview if they wish. Nor was Mr. Snow's attempt to call counsel a representation that he was obliged to ensure that counsel was present, if available and ready to proceed. If Mr. Snow could in law simply have proceeded with the interview without more ado when Ms. Jekula attended for the interview without a lawyer, it would surely be unreasonable to set aside his decision on the ground of procedural unfairness merely because, perhaps with the Manual in mind, he had been conscientious enough to see if her lawyer was available.
Of course, if Mr. Snow had not advised Mr. Edwards that Ms. Jekula did not need counsel at the interview, it is possible that Mr. Kabateraine would have attended. However, as I have already noted, Mr. Snow's advice cannot be characterized as a refusal to permit counsel, as misleading or as otherwise erroneous in law. Nor did it prevent Mr. Edwards from conveying the advice to Mr. Kabateraine, as well as to Ms. Jekula, and leaving it to him to consider whether to attend.
Lastly, it was argued that the particular facts of Ms. Jekula's case raised a question on which representations from counsel might well have been of assistance to the senior immigration officer in deciding whether the applicant "can be returned" to Sierra Leone, one of the statutory criteria governing access to a determination by the Refugee Division. While the complexity of the issues to be decided in an administrative proceeding is a factor that should be taken into consideration in determining whether the duty of fairness requires the presence of counsel, on the view that I take of the words, "can be returned", the issue to be decided is much less complex than counsel for the applicant suggests. But in any event, since no request for counsel was made by or on behalf of Ms. Jekula, it could not be said that the applicant was denied counsel in breach of the duty of fairness.
I would add one other point here. Ms. Jekula's difficulties may have stemmed from the fact that, unlike other members of her family, she did not claim protection from Sierra Leone, even though she stated that, as turmoil spread to Sierra Leone, Liberians in Sierra Leone were regarded with growing hostility, and she herself had been the victim of assault. Perhaps if she had had a lawyer at the interview, her claim could have been amended so as to add Sierra Leone as a second country against which she was seeking refuge, although whether that should have made a difference to the result is very doubtful. However, this is not sufficient in my view to render the interview so unfair that the officer's decision should be set aside.
(b) section 7 of the Charter
Mr. Barnwell also argued that, by failing to adjourn, Mr. Snow's determination that Ms. Jekula was ineligible for a hearing before the Refugee Division was made in breach of section 7 of the Canadian Charter of Rights and Freedoms. When Charter rights are at stake, the principles of fundamental justice may afford a person more extensive procedural rights than those conferred by the common law duty of fairness, including, in some circumstances perhaps, a positive duty to advise the person concerned that they may be legally represented.
Counsel for the applicant distinguished Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053 where it was held that a person has no constitutionally guaranteed right to counsel at a secondary examination by an immigration officer, on the ground that this stage of the decision-making process was a mere "information-gathering exercise". In contrast, however, he argued, Ms. Jekula's interview with Mr. Snow led to the issue of an exclusion order. He also submitted that Muldoon J. was wrong when, after quoting from Dehghani , he said in Nayci v. Canada (Minister of Citizenship and Immigration) (1995), 105 F.T.R. 122 (F.C.T.D.) [at page 127] that:
It may be noted that nothing in these authoritative passages indicates that questioning which leads to a full-blown exclusion order is anything other than "routine information-gathering purposes".
However, before the content of the principles of fundamental justice is considered in this context, the administrative action under review must deprive the applicant of the right to life, liberty and security of the person. The question is, therefore, whether a decision under paragraph 46.01(1)(a) has this effect. In my opinion it does not. First, while it is true that a finding of ineligibility deprives the claimant of access to an important right, namely the right to have a claim determined by the Refugee Division, this right is not included in "the right to life, liberty and security of the person": Berrahma v. Minister of Employment and Immigration (1991), 132 N.R. 202 (F.C.A.), at page 213; Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.).
Second, it may well be a breach of the rights protected by section 7 for the government to return a non-citizen to a country where she fears that she is likely to be subjected to physical violence or imprisoned. However, a determination that a refugee claimant is not eligible to have access to the Refugee Division is merely one step in the administrative process that may lead eventually to removal from Canada. The procedure followed at the risk assessment to which the applicant will be entitled under section 53 before she is removed can be subject to constitutional scrutiny to ensure that it complies with the principles of fundamental justice, even though the procedure is not prescribed in the Act or regulations: Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252 (T.D.), at page 271. Moreover, while holding that it was not inconsistent with section 7 for the Immigration Act to limit access to the Refugee Division, Marceau J.A. also said in Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (C.A.), at pages 708-709:
It would be my opinion, however, that the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted. It would be, it seems to me . . . at the very least, an outrage to public standards of decency, in violation of the principles of fundamental justice under section 7 of the Charter.
In summary, section 7 rights are not engaged at the eligibility determination and exclusion order stages of the process. However, the applicant cannot be lawfully removed from Canada without an assessment of the risks that she may face if returned to Sierra Leone. And the manner in which that assessment is conducted must comply with the principles of fundamental justice.
2. "Can be returned"
Mr. Barnwell argued that the senior immigration officer committed a reviewable error when, having satisfied himself that Ms. Jekula had been recognized as a refugee in Sierra Leone, he concluded that her claim could not be referred to the Refugee Division without establishing that she "can be returned" to that country as paragraph 46.01(1)(a ) requires. Mr. Snow had merely consulted a superior, and informed the applicant that there was no moratorium on returning people to Sierra Leone. This indicates, Mr. Barnwell argued, that Mr. Snow had failed to address the relevant issue, which was whether Ms. Jekula had a legal right to be readmitted by Sierra Leone immigration authorities, and not whether the Government of Canada was currently removing people to Sierra Leone, despite the civil war in progress there. Mr. Barnwell relied on Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252 (T.D.), at page 262, where, at footnote 6, Heald D.J. stated:
I read the phrase "can be returned" to relate to a claimant's status in the country of asylum in the sense that the country of asylum is obligated to permit the claimant's return.
Ms. Jekula did not have a passport with a visa for Sierra Leone or any document issued by the authorities of Sierra Leone stating that she had a right to remain in, and to re-enter, that country. All she had was a refugee identity card issued by the Government of Sierra Leone "Under the United Nations Convention of 1951 relating to the Status of Refugees", with the name of the refugee camp where she resided. This card seems to have been used principally for the purpose of enabling the holder to claim food rations, rather than as an international travel document to prove a right of re-entry to Sierra Leone. In Mr. Barnwell's submission this document did not establish that she had a right to re-entry and, in the absence of further inquiries by Mr. Snow to discover whether Ms. Jekula had such a right, he erred in law in concluding that the statutory requirement that the claimant "can be returned" was satisfied.
In response, counsel for the Minister, Ms. Horton, took the position that, once a senior immigration officer was satisfied that the claimant had been recognized as a refugee in a country, no further inquiry was needed. She pointed out that, the previous version of paragraph 46.01(1)(a) which came into force on January 1, 1989 read:
46.01 (1) . . .
(a) the claimant has been recognized by any country, other than Canada, as a Convention refugee and has been issued a valid and subsisting travel document by that country pursuant to Article 28 of the Convention. [Emphasis added.]
Moreover, it should be noted, there was no equivalent of paragraph 46.01(1)(a) in force when Urie J.A. in Boun-Leua v. Minister of Employment and Immigration, [1981] 1 F.C. 259 (C.A.), at page 264 said:
In this case the applicant as a refugee admitted to France can return to France at least so long as his travel permit, issued by that country to him, is valid.
Ms. Horton argued that, in amending paragraph 46.01(1)(a) in 1993, Parliament should be taken to have intended to make it easier for Canada to return claimants to the country where they have been recognized as refugees, especially since it is not uncommon for refugee claimants not to be in possession of any travel or other official documents when they arrive in Canada, or for their documents to have expired.
The difficulty with this argument is that to read paragraph 46.01(1)(a) as if it ended before the words "can be returned" offends the presumption of statutory interpretation that, whenever possible, meaning should be attributed to all the words in a statute. On the other hand, to require a senior immigration officer to embark on a lengthy and possibly inconclusive attempt to determine whether a claimant had a legal right of re-entry under the law of the country of asylum would seem inconsistent with the summary nature of the section 46.01 process contemplated by the statutory scheme to screen out inter alia those who are not in need of protection because they have been recognized as refugees in another country.
In my opinion, a senior immigration officer may normally assume that the evidence establishing that a country has granted asylum to the claimant will also enable her to re-enter that country. However, if presented with evidence that, for some reason, the immigration authorities of the country of asylum will not readmit the claimant, further inquiries must be made, and the senior immigration officer may only find the claimant ineligible under paragraph 46.01(1)(a) if satisfied on reasonable grounds that the claimant will in fact be readmitted.
On the facts of this case, there was no evidence that Ms. Jekula would not be readmitted to Sierra Leone. The Refugee Identity Card proved her refugee status in that country, where, according to her affidavit, she had lived for seven years as a permanent resident. Accordingly, Mr. Snow had a reasonable basis for believing that Ms. Jekula "can be returned" to Sierra Leone.
One other possible interpretation of the words "can be returned" should be considered. The reason given by Ms. Jekula for seeking asylum in Canada was that she feared for her safety in Sierra Leone, as that country plunged into turmoil and Liberian citizens became the targets of hostility and violence. This raises the question of whether a person "can be returned" to the country that has granted asylum, when the person has a well-founded fear of persecution on the prescribed grounds in that country.
It is important to note in this context that, prior to the enactment of Bill C-86 in 1993 which amended section 46.01, there was a provision that dealt specifically with this situation. Subsection 46.01(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14] provided that persons were eligible for a determination by the Refugee Division, even though they had been recognized as Convention refugees in another country, if they had a well-founded fear of persecution in that country on grounds of race, religion, nationality, membership in a particular social group or political opinion.
The repeal of this provision in 1993 would suggest that such persons are no longer exempted from the category of those ineligible to have their refugee claims determined by the Refugee Division because they have been recognized in another country as refugees. On the other hand, Bill C-86 also broadened paragraph 46.01(1)(a) by substituting the words "can be returned" for the more specific requirement that a person whose refugee status had been recognized elsewhere was ineligible only if the person possessed a valid and subsisting travel document pursuant to Article 28 of the Convention [United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6].
In my view, the words "can be returned" do not require the senior immigration officer to determine whether the claimant has a well-founded fear of persecution in the country that has already granted asylum. The repeal in 1993 of the specific provision dealing with this very issue suggests that it should not be read back into the statute through the words "can be returned" in paragraph 46.01(1)(a ). To require a senior immigration officer to determine whether a claimant has satisfied the definition of a Convention refugee would seem incompatible with the expeditious and relatively straightforward administrative process contemplated by the statutory scheme for screening certain claims out of the Refugee Division's jurisdiction.
This is not to say, of course, that the Act provides no protection for persons who are in need of Canada's protection because they fear persecution in the country where they have been granted asylum. Subsection 53(1) specifically prohibits the removal of persons who have been found ineligible to have their refugee claims referred to the Refugee Division, where the person's life or freedom would be threatened on Convention grounds in the country to which it is proposed to remove them.
When Mr. Snow asked his superior whether there was a moratorium on returning individuals to Sierra Leone, he may well have had section 53 in mind. However, as counsel for both parties seemed to agree, the existence of such a moratorium was not relevant to the eligibility decision.
I am fortified in my conclusion by the following words of Heald D.J. in Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252 (T.D.), at page 270:
While under subsection 46.01(2) of the Immigration Act those with Convention refugee status elsewhere were permitted to make Convention refugee claims against their country of asylum, there is no equivalent to this provision in the Act as it now reads. The repeal of the substance of subsection 46.01(2) of the Immigration Act indicates that Parliament has chosen to exclude persons recognized as Convention refugees by another country from claiming a well-founded fear of persecution by their country of asylum.
In addition, Heald D.J. considered the relationship in the statutory scheme of paragraph 46.01(1)(a) and subsection 53(1), and concluded [at page 268]:
The automatic operation of subsection 53(1) for those ineligible under paragraph 46.01(1)(a) is a legitimate compromise between the interest of the state in preventing asylum shopping and ensuring that possible consequences of the eligibility criteria"removal from Canada"are assessed within a mandatory evaluation of the potential of harm to a paragraph 46.01(1)(a ) claimant at the hands of his country of asylum.
I understand that the subsection 53(1) risk assessment process administered by officials of Immigration Canada may be regarded by applicants as less favourable than the full hearing before a panel of the Refugee Division applying the less stringent, "well-founded fear" test. Nonetheless, in light of the legislative history of paragraph 46.01(1)(a) and subsection 46.01(2) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 36], and the overall statutory scheme, this consideration is insufficient to persuade me that, in determining whether a claimant "can be returned", a senior immigration officer must undertake a risk determination under paragraph 46.01(1)(a ).
3. The validity of the exclusion order
Finally, Mr. Barnwell challenged the validity of the exclusion order issued under subsection 23(4) by Mr. Snow after he had found that Ms. Jekula was not eligible to have her refugee claim referred to the Refugee Division, and had received a report that she was a member of an inadmissible class in that she had no valid passport, visa or any of the other statutorily specified documents. He argued that the order was unlawful because the applicant had been denied legal representation at the interview that preceded the issuance of the order.
For the most part, counsel repeated the arguments that he had made in connection with the senior immigration officer's finding of ineligibility, and for the reasons that I have given in that context I am unable to accept them here either. Thus, because of the very limited scope of the issues to be decided and of the discretion to be exercised by a senior immigration officer under subsection 23(4), and the summary and expeditious nature of the proceeding contemplated by the statutory scheme (as contrasted with an inquiry conducted by an adjudicator, for example), there is no automatic right to counsel, but a discretion in the officer to permit a person to have a lawyer present. However, there is no duty on an officer to advise a claimant that she should be represented, and in the absence of a request Mr. Snow did not refuse to permit Ms. Jekula to have a lawyer with her at the interview. In the circumstances, it was reasonable for Mr. Snow to decide not to adjourn the interview until Ms. Jekula's lawyer had been consulted, decided whether to attend, and set a date when he could attend.
It is true that the issue of an exclusion order is an important step in the process that may lead to the person's removal from Canada. However, this is not sufficient to attract section 7 of the Charter to the exercise of the power to issue an exclusion order, even where a person apprehends serious risk of death, other physical violence or detention if returned to a particular country. As already indicated, section 53 and subsection 114(2) of the Immigration Act provide opportunities for an assessment of the risks facing the person before the exclusion order is executed.
4. Conclusion
For these reasons, these applications for judicial review are dismissed. I would like to express my appreciation to counsel for their thorough and thoughtful arguments. Costs were not requested, and no order for costs is made.
5. Certified Questions
At the conclusion of the argument, counsel requested that I consider certifying a question or questions for appeal, pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act. In accordance with established practice, I instructed the Registry to send to counsel for both parties a copy of draft reasons for the order that I proposed to make, and to invite them to make written submissions on a question for appeal that in their submission satisfied the statutory criterion, namely that "a serious question of general importance is involved" in the disposition of the application for judicial review.
Having read the helpful submissions of Mr. Barnwell, counsel for the applicant, I certify that the following stated questions satisfy the criterion of subsection 83(1):
1. Were the decisions by the SIO in finding the applicant ineligible to have her refugee claim determined by the Refugee Division, and excluding her from Canada, made in breach of the duty of fairness, in that the SIO interviewed the applicant in the absence of her counsel, when counsel may have been available to attend the interview if the SIO had not advised the applicant, through her social worker, that a lawyer's attendance at the interview was not necessary?
2. Did the SIO err in law in concluding for the purpose of paragraph 46.01(1)(a) of the Immigration Act that the applicant "can be returned" to the country where she has documentary evidence that she has been recognized as a refugee, in the absence of both a travel document establishing that she has a right to enter or reside in that country, and of evidence that in fact she will not be admitted?