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A-578-79
Kammy Boun-Leua (Applicant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Urie and Ryan ,JJ. and MacKay D.J.—Toronto, March 13; Ottawa, June 17, 1980.
Judicial review — Immigration — Whether Minister's determination that a claimant is a Convention refugee automatically accords him a lawful status in Canada — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1), 4, 5, 27(1), 37(1), 45(1),(5), 47(1),(3), 72(2)(a),(6),(3) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The applicant's status as a visitor in Canada having expired, an inquiry was held during which the applicant claimed that he was a Convention refugee. Following compliance with section 45 of the Immigration Act, 1976, the inquiry was adjourned, an examination held and a determination made by the Minister that the applicant was a Convention refugee. The inquiry was then resumed and the Adjudicator held that the applicant was no longer lawfully in Canada and that, by virtue of section 4(2) of the Act, he was not a Convention refugee who was entitled to remain in Canada. This section 28 application seeks to have set aside the departure notice issued against him as a result of those findings. Applicant submits that to give any logical meaning to section 4(2), it must be considered that the determi nation by the Minister that a claimant is a Convention refugee automatically accords him lawful status in Canada which subsists so long as he does not fall within the exceptions enumerated in section 4(2)(b).
Held, the application is dismissed. The Immigration Act, 1976, accords a particular status only to Canadian citizens, immigrants and visitors. The only rights accorded to a Conven tion refugee are first, not to be returned to a country where his life or freedom would be threatened (section 55 of the Act) and, second, to be able to appeal a removal order or a deporta tion order made against him on a question of law or fact or of mixed law and fact and on the ground that, having regard to the existence of compassionate or humanitarian considerations, he should not be removed from Canada (sections 72(2)(a),(b) and 72(3) of the Act). In this case, the applicant as a refugee admitted to France can return to that country. There is no obligation on the Minister to permit him to remain in Canada and the applicant has no legal right to do so.
APPLICATION for judicial review. COUNSEL:
D. Greenbaum, Q.C. for applicant.
H. Erlichman for respondent. SOLICITORS:
Moses, Spring, Greenbaum & Pang, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
URIE J.: This is a section 28 application to review and set aside the departure notice made on September 25, 1979 at Toronto by Adjudicator Susan Comstock.
Briefly the relevant facts are these. The appli cant who was born in Laos but who is apparently, a stateless person, entered Canada as a visitor on December, 4, 1978. He had travelled to Canada from France where he had been accorded refugee status and had resided. He was granted an exten sion to his visitor's visa to enable him to remain in Canada until January 3, 1979. On January 2, 1979, the applicant, accompanied by his lawyer, attended before an immigration officer in Toronto seeking status as a Convention refugee. He was advised that it was possible to make such a claim only while in a country other than Canada or during an inquiry. As a result he did not then pursue the matter further, but returned to the Immigration Office on January 4, 1979 at which time his visitor's status had expired as a result of which a report was made to the Deputy Minister of Employment and Immigration pursuant to sec tion 27(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, and on January 9, 1979 the Deputy Minister pursuant to section 27(3) of the Act directed that an inquiry be held.
The inquiry was convened on January 25, 1979 at which the Adjudicator found that the applicant who had entered Canada as a visitor, had remained therein after he had ceased to be a visitor. He had, however, during the inquiry, reit erated his claim that he was a Convention refugee as a result of which the Adjudicator did not make a removal order or issue a departure notice, but
rather, pursuant to section 45(1)' of the Act, adjourned the inquiry for an examination under oath by a senior immigration officer.
Following compliance with the other subsections of section 45, pursuant to section 45(5) 2 , the Min ister, on June 21, 1979, informed the senior immi gration officer and the applicant that he had deter mined that the applicant was a Convention refugee, a status defined by section 2(1) of the Act. Thereafter, the adjourned inquiry was resumed on September 11, 1979 as required by section 47(1) 3 of the Act. Following the conclusion thereof and after taking the matter under advise ment, the Adjudicator held that having found in the first stage of the inquiry that the applicant had remained in Canada after he had ceased to be a visitor, he was no longer lawfully in Canada. Thus, by virtue of the requirements of section 4(2) of the Act, he was not a Convention refugee who was entitled to remain in Canada. Therefore, she issued a departure notice to the applicant. It is this notice that the applicant seeks to have set aside on this section 28 application.
Section 4(2) reads as follows: 4....
(2) Subject to any other Act of Parliament, a Canadian citizen, a permanent resident and a Convention refugee while
' 45. (1) Where, at any time during an inquiry, the person who is the subject of the inquiry claims that he is a Convention refugee, the inquiry shall be continued and, if it is determined that, but for the person's claim that he is a Convention refugee, a removal order or a departure notice would be made or issued with respect to that person, the inquiry shall be adjourned and that person shall be examined under oath by a senior immigra tion officer respecting his claim.
2 45....
(5) When the Minister makes a determination with respect to a person's claim that he is a Convention refugee, the Minister shall thereupon in writing inform the senior immigra tion officer who conducted the examination under oath respect ing the claim and the person who claimed to be a Convention refugee of his determination.
3 47. (1) Where a senior immigration officer is informed that a person has been determined by the Minister or the Board to be a Convention refugee, he shall cause the inquiry concerning that person to be resumed by the adjudicator who was presiding at the inquiry or by any other adjudicator, who shall determine whether or not that person is a person described in subsection 4(2).
lawfully in Canada have a right to remain in Canada except where
(a) in the case of a permanent resident, it is established that that person is a person described in subsection 27(1); and
(b) in the case of a Convention refugee, it is established that that person is a person described in paragraph 19(1)(c), (d), (e), (f) or (g) or 27(1)(c) or (d) or 27(2)(c) or a person who has been convicted of an offence under any Act of Parlia ment for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed.
While counsel for the applicant advanced two other contentions, essentially his principal submis sion was that once the Minister accords a person the "classification" of Convention refugee, a status is accorded him which permits him to remain in Canada lawfully for the purposes of section 4(2) of the Act, provided he does not fall within any of the enumerated paragraphs referred to in paragraph (b) of that section. Since the applicant herein was not a person falling within any of those classes of persons, and since, by virtue of his having been determined to be a Convention refugee by the Minister, he was lawfully here and thus entitled to remain here under section 47(3) 4 of the Act. In his view, when the stage in an inquiry is reached requiring an adjournment for the determination by the Minister of whether or not the person subject to the inquiry is a Convention refugee, every such person is unlawfully in Canada by reason of the fact that at that stage he must have been a person who, but for his claim to be a refugee, would have a removal order or a deportation order made or issued against him (section 45(1)). That being so, in his submission, paragraph (b) of section 4(2) would be completely redundant.
Therefore, to give the section any logical mean ing it was counsel's view that it must be considered that when the Minister finds that a claimant is a Convention refugee he automatically is accorded lawful status in Canada which subsists so long as he does not fall within the exceptions enumerated in section 4(2)(b). The word "while" in the phrase "while lawfully in Canada" is used, it was said, in the sense of "so long as", so that if the refugee does something during the duration of his Conven-
4 47....
(3) Where an adjudicator determines that a Convention refugee is a Convention refugee described in subsection 4(2), he shall, notwithstanding any other provision of this Act or the regulations, allow that person to remain in Canada.
tion refugee status that brings him within the enumerated exceptions set forth in paragraph (b), he may lose the right to remain in Canada because of it. Until he does though, his status as a Conven tion refugee entitles him to remain here.
The argument has considerable force but foun ders, I think, for the following reason. The Immi gration Act, 1976 accords a particular status only to Canadian citizens, immigrants and visitors. Sec tion 4(1) gives to a Canadian citizen and to a permanent resident who is not inadmissible by virtue of section 27(1), the right to come into Canada. As previously noted, section 4(2) entitles those persons and Convention refugees, while law fully in Canada, to remain in Canada. Section 4(3) provides that a registered Indian whether a Canadian citizen or not, has the same rights and obligations under the Act as a Canadian citizen.
According to section 5 5 no person other than those described in section 4 has a right to come into or to remain in Canada. Subsections (2) and (3) of section 5 provide the basis for the landing and entry of immigrants and visitors respectively. They are the only non-Canadian citizens, other than registered Indians, who are accorded a status under the Act, i.e., a right to enter and remain in Canada so long as they meet the requirements of the Act and regulations. An immigrant by defini tion is granted landing which means he is permit ted to come into Canada to establish permanent residence. A visitor, again by definition, is a person granted entry into Canada for a temporary pur pose and for a specified period of time.
A Convention refugee, on the other hand, is not given the right to reside permanently in Canada nor, by being designated such, is he given the right
5 5. (1) No person, other than a person described in section 4, has a right to come into or remain in Canada.
(2) An immigrant shall be granted landing if he is not a member of an inadmissible class and otherwise meets the requirements of this Act and the regulations.
(3) A visitor may be granted entry and allowed to remain in Canada during the period for which he was granted entry or for which he is otherwise authorized to remain in Canada if he meets the requirements of this Act and the regulations.
to remain in Canada for a specific period of time. Presumably his right to remain is dependent upon his continuing to be a refugee from the country of his nationality. If for any reason, he no longer can fulfil the requirements to be characterized as a Convention refugee, he is subject to a removal or deportation order. The duration of his stay, as a Convention refugee, can only be fixed by a Minis terial permit issued pursuant to section 37 of the Act. If no such permit is issued then, if he is within an inadmissible class, he may be the subject of a removal or deportation order. The only rights accorded to a Convention refugee are first, not to be returned to a country where his life or freedom would be threatened, a right granted by virtue of section 55 of the Act, and, second, to be able to appeal a removal order or a deportation order made against him on a question of law or fact or of mixed law and fact and "on the ground that, having regard to the existence of compassionate or humanitarian considerations" he should not be removed from Canada (sections 72(2)(a) and (b) and 72(3)).
From all of the above, I can only conclude that the determination by the Minister that a person is a Convention refugee does not, as urged by appli cant's counsel, confer on that person a status of some undefined nature. It gives him only the rights to which I have previously alluded. 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. France having found him to be a refugee, then Canada as a signatory to the United Nations Convention Relating to the Status of Refugees would find it difficult to determine that he was not a refugee. Whether or not such is the case is immaterial in this case. Since he can return to France, which is not the country of his nationality, or where his life or freedom would be threatened, there is no obligation on the Minister to permit him to remain in Canada. The applicant has no legal right to do so. In my view, therefore, appli cant counsel's submission that the determination by the Minister that his client was a Convention refugee gave him the right to remain in Canada must fail.
In view of this conclusion, it is unnecessary for me to consider the second branch of the applicant's argument relating to the question of whether or not he is "lawfully in Canada" after the conclusion of the first stage of the inquiry.
Accordingly, the section 28 application should be dismissed.
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RYAN J.: I concur.
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MACKAY D.J.: I concur.
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