A-84-87
Minister of Employment and Immigration
(Appellant)
V.
Mokhtar Bendahmane (Respondent)
INDEXED AS: BENDAFIMANE V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (C.A.)
Court of Appeal, Marceau, Hugessen and Desjar-
dins JJ.A.—Montréal, February 7; Ottawa, April
10, 1989.
Immigration — Refugee status — Claim to refugee status
made outside statutory framework Minister's letter stating
claim to refugee status would be considered in usual way
Minister now refùsing to do so Regardless of whether or not
am' statutory obligation on Minister to consider application,
hound by principle of "reasonable expectation".
Judicial review — Prerogative writs — Mandamus Prin
ciple of "reasonable expectation" — Public authority bound
hr undertaking as to procedure to be followed where no
conflict with statutory duties Claim to refugee .status not
properly made Minister's letter stating claim would be
considered in usual war Minister required to consider claim
regardless of whether or not statutory obligation to do so.
An exclusion order was issued against the respondent, an
Algerian citizen, on July 19, 1985, on the ground that he was
not a genuine visitor. While his appeal was being processed and
before he discontinued it, about a year later, he inexplicably
received an official letter advising that he might be eligible for
administrative review under the Refugee Claims Backlog
Regulations. The respondent therefore filed a refugee claim in
June 1986. In October 1986, he received another letter telling
him that he was not eligible for administrative review because
he had not made his claim to refugee status prior to the end of
his inquiry, and that his claim to refugee status would continue
to be considered in the usual way. When the respondent learned
that the Minister was about to remove him from Canada
without giving his claim any further consideration, he applied
for certiorari and mandamus in the Trial Division. The Trial
Judge quashed the decision denying the respondent access to
the administrative review project and ordered the Minister to
deal with the refugee claim as if it had been filed within an
inquiry. This is an appeal from that decision.
Held (Marceau J.A. dissenting), the appeal should be
allowed in part.
Per Hugessen .LA.: The Trial Judge was wrong to quash the
decision to refuse the respondent the benefit of the refugee
claims backlog program since the respondent clearly did not
qualify, not having filed his claim prior to the conclusion of the
inquiry respecting his status in Canada.
The second part of the Trial Judge's order should be upheld.
While the respondent's claim clearly fell outside the statutory
framework, the Minister in fact exercises a power to consider
such claims and to give the benefit of refugee status quite apart
from the procedure for determination and redetermination set
out in the Act. The question of whether the Minister has a duty
to consider refugee claims made outside the statutory frame
work does not arise here. Given this and the fact that the
Minister advised the respondent that his claim would be con
sidered, the doctrine of fairness required the Minister to give
consideration to the respondent's claim prior to pursuing any
attempt to remove him from Canada.
The applicable principle is that of "reasonable expectation"
or "legitimate expectation", as recently and forcefully stated by
the Privy Council in Attorney-General of Hong Kong v. Ng
Yuen Shia, [1983] 2 A.C. 629: a public authority is bound by
its undertakings as to the procedure it will follow, provided they
do not conflict with its duty.
Per Desjardins J.A. (concurring in the result): Since the
Minister had the power to consider a refugee claim outside the
procedure set in section 45 of the Act, the possibility could not
be excluded that the Minister's letter could be interpreted as
giving an undertaking that the refugee claim would be con
sidered notwithstanding the exclusion order. The doctrine of
legitimate expectation was clearly applicable.
Per Marceau J.A. (dissenting): The Trial Judge erred in
granting certiorari quashing the decision declaring the respond
ent ineligible for the special program. First, there was no
decision. Strictly speaking, this was information regarding the
provisions of the Regulations and their inevitable consequence
for the respondent's application. Second, even if it were a
decision, there was nothing to impair its validity.
The Trial Judge also erred in ordering the Minister to
consider the refugee claim in the usual way. The principle of
"legitimate expectation" did not apply herein. It was never
meant to apply outside a procedural context, and compelling
the consideration of a refugee status claim made in a manner
inconsistent with the provisions of the Act was not a procedural
matter. Furthermore, the respondent was in fact the subject of
a deportation order and nothing in the Act could be used to
prevent its being carried out.
Finally, in purely factual terms, the letter as a whole cannot
be said to have raised a reasonable hope or legitimate expecta
tion. Reading it, the respondent could not fail to realize that the
project did not apply to someone in his position.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 6(2),
19(I )(h), 20(1), 32(5), 45, 50, 51, 52, 70, 71 (as am.
by S.C. 1986, c. 13, s. 5), 72(2)(b), 115(2).
Immigration Regulations, 1978, SOR/78-172, s. 7(1).
Refugee Claims Backlog Regulations, SOR/86-70 I, s.
2(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney-General of Hong Kong v. Ng Yuen Shiu,
[1983] 2 A.C. 629 (P.C.).
REFERRED TO:
Reg. v. Secretary of State for the Home Department, Ex
parte Asif Mahmood Khan, [1984] 1 W.L.R. 1337
(C.A.); Sous -ministre du Revenu du Québec c. Trans
port Lessard (1976) Ltée, [1985] R.D.J. 502 (Que. C.A.);
Schmidt v. Secretary of State for Home Affairs, [1969]
2 Ch. 149 (C.A.); Council of Civil Service Unions v.
Minister for the Civil Service, [1984] 3 All ER 935
(H.L.); Re Multi-Malls Inc. et al. and Minister of
Transportation and Communications et al. (1976), 73
D.L.R. (3d) 18 (Ont. C.A.); Persad v. Canada (Minister
of Employment and Immigration), A-140-83, judgment
dated 18/10/83, F.C.A., not reported; Singh et al. v.
Minister of Employment and Immigration, [1985] 1
S.C.R. 177; Tonato v. Minister of Employment and
Immigration, [1985] 1 F.C. 925 (T.D.); R v Secretary of
State for the Home Dept, ex p Ruddock, [1987] 2 All
ER 518 (Q.B.); Reg. v. Inland Revenue Comrs., Ex parte
Preston, [1985] A.C. 835 (H.L.); Leech v. Deputy Gov
ernor of Parkhurst Prison, [1988] 2 W.L.R. 290 (H.L.).
AUTHORS CITED
Forsyth, C. F. "The Provenance and Protection of Legiti
mate Expectation", [1988] 47 C.L.J. 238.
Hadfield, Brigid "Judicial Review and the Concept of
Legitimate Expectation" (1988), 39 N.I.L.Q. 103.
Lewis, Clive "Fairness, Legitimate Expectations and
Estoppel" (1986), 49 Modern L. Rev. 251.
• Riggs, Robert E. "Legitimate Expectation and Proce
dural Fairness in English Law" (1988), 36 Am. J.
Comp. L. 395.
COUNSEL:
Johanne Le Vasseur for applicant.
Julius H. Grey for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Grey, Casgrain, Biron, Montréal, for respond
ent.
The following is the English version of the
reasons for judgment rendered by:
MARCEAU J.A. (dissenting): The judgment
challenged by this appeal was rendered by a judge
of the Trial Division on January 26, 1987 [(1987),
8 F.T.R. 241] pursuant to section 18 of the Feder
al Court Act [R.S.C., 1985, c. F-7]. The motions
judge, hearing an application for a writ of certio-
rari, mandamus and such other relief as may be
appropriate, first quashed what he regarded as a
refusal by an officer of the appellant Minister in
connection with an application by the respondent
pursuant to the Immigration Act, 1976 (S.C.
1976-77, c. 52, hereinafter referred to as "the
Act");' secondly, he found that the respondent was
entitled to have his claim for refugee status con
sidered as if it had been consistent with the provi
sions of the Act. In itself this presentation clarifies
little: it is only once the facts are known that the
meaning and the scope of the judgment a quo can
be seen and the problem raised by it understood.
Facts
The respondent, Mokhtar Bendahmane, was
born in Algeria in 1958, but was taken to France
the following year and has lived there since that
time, except for a brief visit to England from
September 1984 to March 1985. On June 10, 1985
the respondent came to the airport at Mirabel,
Quebec. At the time he held a visitor's visa,
obtained a few days earlier in Paris; but as he had
clearly obtained this visa by inaccurate representa
tions and in addition arrived not from Paris but
from London, with only a one-way ticket, he was
denied entry by the examining officer, who as
required by the Act at once prepared a report in
which he alleged that in his opinion under para
graph 19(1)(h) the respondent should not be
granted admission to Canada because he was not a
genuine visitor.
The inquiry initiated by the officer's report
began on June 12. After several adjournments, it
was finally completed on July 19, 1985. The
adjudicator found he was able to verify the facts
contained in the report and issued a removal order
' For reasons for convenience, I will refer to the Act as it
stood at the time of the decision.
against the respondent as required by subsection
32(5) of the Act. The respondent at once appealed
from this order to the Immigration Appeal Board.
In May 1986, while the respondent was still
waiting to be summoned to a hearing by the
Immigration Appeal Board, the appellant Minister
publicly announced the creation of an "Adminis-
trative Review Project for Refugee Claimants".
This was a wholly exceptional project developed to
cope with the enormous administrative problem
presented by a Supreme Court judgment which
had just clarified the requirement of an oral hear
ing in all cases of refugee status claims, the
essence of the project being that claimants should
be admitted solely on the basis of their integration
into Canadian life. The respondent thought he
would claim the benefit of this. On June 17, 1986
he filled out and submitted to an immigration
office a document consisting first of a form letter
on the Employment and Immigration Canada let
terhead, with a form for completion below. The
letter reads as follows:
Dear Sir/Madam:
You are a person about whom an inquiry must be held under
the Immigration Act.
On May 21 last the Minister announced a special program to
review for permanent residence purposes all refugee status
claimants in Canada awaiting a final decision. You may be
elegible for this program if before June 21, 1986 you indicate
your intention to claim refugee status to an immigration offi
cer, a senior immigration officer or an adjudicator. If that is
not the case, you will then be called to an inquiry and your case
will be dealt with by the normal procedure.
Once completed and signed by the respondent, the
form read as follows:
I—Mokhtar Ben Dahmne—born on—l958—domiciled at
5713 6ième Avenue, Montréal H 1 Y 2R1—intend to claim
refugee status and wish to participate in the special administra
tive review program announced by the Minister on May 21,
1986.
(signed) Ben Dahmne
(date) I7-6-86
As indicated in the first paragraph of this form
letter, it was intended for persons waiting for an
inquiry to be held regarding their right to be in
Canada, but was not addressed to anyone in par
ticular. The respondent clearly was not a person
for whom the letter was intended, since his inquiry
had been held a year earlier. How then did he
come to have a copy of it? He provided no expla
nation of this. In fact, he did not even refer to the
document in his original application and only
thought of introducing it in reply, without com
ment, simply to establish that as of June 17 he had
expressed an intention to claim refugee status. He
certainly could not have received this letter by
mail, as there is no conceivable reason why it
would have been sent to him, and in any case, he
would undoubtedly have mentioned it in view of
the arguments he intended to make, as we shall
see. At all events, this does not matter.
On June 20 following, the respondent completed
a copy of the ordinary refugee status claim form
and simply gave it to the immigration office. As
this form does not contain anything special, there
is no need to reproduce it.
The next document in the record in chronologi
cal order is the critical one. It too is a form letter,
written to inform certain refugee status claimants
that they were not eligible for the Administrative
Review Project. The blank spaces on the form have
been filled in by an immigration officer, as
required. The letter here is addressed to the
respondent and dated October 16, 1986. It is
obviously in response to the document of June 17
and the claim form of June 20 submitted by the
respondent. The letter is set out in two parallel
columns, one in French and the other in English.
Only the French version contains the words added
by the officer. It reads:
Employment and Immigration Canada
Our file: 2496-86-02941
October 16, 1986
Mr. Mokhtar Bendhamne
953 est, rue Rachel
Montréal, Quebec
H2J 2J4
Madam/Sir,
The following refers to our initial letter of July 1986, which
informed you of your possible elegibility to [sic] the Adminis
trative Review Project for refugee claimants.
Your file has been studied thoroughly and it appears that you
are not elegible for this Program, due to the following
reason(s):
[TRANSLATION] You have not indicated your intention to
claim refugee status to an immigration officer or an adjudica
tor before the end of your inquiry into your status in Canada.
Therefore, you may not apply for Permanent Residence in the
context of this Program and your claim to refugee status will
continue to be considered in the usual way.
(signed) Directeur/Manager
The letter in early July referred to in the letter
of October 16 is not in the record; we have no
other information regarding its contents or even
whether it was received. It is also known that in
July 1986 the respondent discontinued his appeal
from the deportation order.
That completes the review of the facts.
Trial judgment
The judge hearing the respondent's motion
devoted most of his reasons for judgment to dis
missing the arguments put forward against the
validity of the authorities' refusal to include the
respondent in the special project. He said essen
tially that it was clear the respondent had not
claimed refugee status during an inquiry into his
status in Canada, as required by the Regulations
adopted to give effect to the special project,
namely the Refugee Claims Backlog Regulations
(SOR/86-701), 2 because counsel's claim that the
inquiry continued during the appeal proceedings
filed against the deportation order could not be
accepted. It was also clear that the requirement of
the Act that refugee status be claimed during an
inquiry (section 45), a requirement with which the
Regulations were simply complying, was not con
trary to the provisions of section 7 of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. It was, in his
opinion, a requirement that had to be observed,
unless the case was one where the individual was
subject to deportation without an inquiry as in
Tonato v. Minister of Employment and Immigra -
Z Subsection 2(c) of the Regulations, regarding the definition
of a "member of the refugee claims backlog", reads as follows:
2. ...
c) [A person who] indicated, on or before June 20, 1986,
to an immigration officer or an adjudicator, prior to the
conclusion of an inquiry respecting his status in Canada,
his intention to claim refugee status ....
tion (a Trial Division judgment reported at [1985]
1 F.C. 925), which of course was not true here.
Having thus disposed of the arguments made
against the refusal to grant the respondent the
benefit of the special program, the judge went
right on as follows (at page 249):
This does not mean that I am satisfied that the petitioner was
treated fairly.
The petitioner was sent a letter "au début de juillet" that he
could be eligible to [sic] the Administrative Review Project for
refugee projects (see letter of October 16, 1986 attached to
petitioner's affidavit).
On July 25, 1986, the petitioner is informed that he is
eligible for the program (Paragraph 4 of petitioner's affidavit).
On October 16, 1986, the petitioner is told, by letter
(referred to above) that he is not eligible for the program but
that "your claim to refugee status will continue to be con
sidered in the usual way."
I am satisfied that the respondent erred in sending this form
letter to the petitioner as it did not apply to his specific
circumstances.
Nevertheless, the petitioner was left, as any reasonable
person would be, with the impression, that firstly, he was
eligible for the special program and secondly, after receiving
the final letter of October 16, 1986, that he would receive some
type of consideration as to his claim for refugee status.
The petitioner's claim for refugee status was given no con
sideration, this, as a result of the decision of the respondent
dated October 16, 1986.
I am satisfied that the petitioner was led into error by the
erroneous information given to him by representatives of the
respondent which may have caused petitioner to abandon his
appeal before the Immigration Appeal Board.
The respondent, when they informed petitioner of his possible
eligibility knew that there was in existence a valid order of
expulsion against the petitioner issued on July 19, 1985.
It would be unjust not to consider petitioner's claim for
refugee status in these circumstances.
I therefore allow the application for certiorari and quash the
decision of October 16, 1986, given by the respondent and
declare that the petitioner is entitled to have his application
filed on June 20, 1986 for Convention refugee status considered
in the same manner as any other application for refugee status
filed during an inquiry.
I do not wish this decision to be interpreted that it is my
belief that the petitioner is a refugee. I have not given any
consideration to this question. It is for the respondent, in
accordance with the statute law and regulations to make that
type of determination.
Costs in favour of petitioner.
I do not intend to deal at length with the first
part of the order, that reversing the statement
contained in the letter of October 16, 1986 that
the respondent was not eligible for the special
program. It is clear that the Judge had no author
ity to rule as he did. First, there was no decision
since strictly speaking this was information regard
ing the provisions of the Regulations and their
inevitable consequence for the respondent's
application; but even if this were to be regarded as
a decision that could be the subject of certiorari,
there is nothing to impair its validity. So far as its
contents are concerned, it was admitted that the
respondent did not claim refugee status during an
inquiry, and as regards the way in which it was
rendered, there is clearly nothing with which to
find fault, and indeed no question of procedural
fairness was even raised. The Judge did speak of
fairness, but in a different sense which does not
fall within the principles applicable to review of
the legality of administrative acts. Further, this
first part of the decision is completely at variance
with the second, where it states that the respond
ent is entitled to a review of his refugee status
claim not under the special Regulations but in the
ordinary manner specified by the Act.
It is the second part of the order that counsel for
the respondent sought to defend. In his view, the
Judge was right to speak of the unfairness of the
situation and to react as he did. In his submission,
the case was one directly covered by the new
doctrine of "legitimate expectation", by which the
Government could be compelled to act in accord
ance with its own representations. Counsel natu
rally referred to the two English cases in which he
said the principle has been most clearly stated,
Reg. v. Secretary of State for the Home Depart
ment, Ex parte Asif Mahmood Khan, [ 1984] 1
W.L.R. 1337 (C.A.) and Attorney-General of
Hong Kong v. Ng Yuen Shiu, [1983] 2 A.C. 629
(P.C.), to which he added that of the Quebec
Court of Appeal in Sous -ministre du Revenu du
Québec c. Transport Lessard (1976) Ltée, [ 1985]
R.D.J. 502.
I do not agree.
There may be good reason for Canadian courts
to follow the British courts and accept this recent
extension of the scope of judicial review of the acts
of governmental authorities. This principle of
"legitimate expectation", which as we know takes
its name from the observations of Lord Denning in
Schmidt v. Secretary of State for Home Affairs,
[1969] 2 Ch. 149 (C.A.), at page 170, and which
the House of Lords appears to have conclusively
incorporated into English law in its decision in
Council of Civil Service Unions v. Minister for the
Civil Service, [1984] 3 All ER 935, at page 954, is
based on a very sound notion. No one would
dispute that even where there is no indication of
bad faith or manifest unreasonableness, there may
be cases in which governmental authority should
not be permitted to go back on its word to the
detriment of an individual who has relied on this
and acted accordingly. One can conceive of a sort
of application of common law estoppel in adminis
trative matters, given the representation on the one
hand and the reaction of trust and reliance on the
other, as a means of ensuring fairness.' At the
same time, as the matter is one of public law the
concept must naturally be confined within limits
consistent with the requirements of public order.
This is why the British judges have been careful to
limit the new principle to certain aspects of
administrative action and to place specific condi
tions on its application. My understanding of these
limits and conditions leads me to think that the
principle has no place in a factual situation like
that now before the Court.
First, I do not think any attempt has ever been
made to apply this principle of "legitimate expec
tation" outside a procedural context. It is at the
level of procedure then involving the exercise of
the discretion conferred on an administrative au
thority, that the principle can be applied. The
problem here is not of that kind: compelling the
consideration of a refugee status claim made in a
manner inconsistent with the provisions of the Act
is not a procedural matter. Further, this is not for
the Minister the exercise of a pure discretion: the
fact that consideration of a refugee status claim
made outside the inquiry is not strictly speaking
prohibited by the Act—and the fact that the
courts sometimes agree to accept this, especially in
Surely, this is the position already taken by the Ontario
Court of Appeal in Re Multi-Malls Inc. et al. and Minister of .
Transportation and Communications et al. (1976), 73 D.L.R.
(3d) IS.
cases where there is no inquiry as in Tonato,
supra—does not mean that the Minister is free to
disregard the provisions of section 45.
Then, it is clear—and this has been reiterated
by the courts but in any case it could hardly be
otherwise—that the principle only applies in the
case of a promise which, at the time it was made,
was consistent with the existing legislation and can
still be carried out by the Government. Here, not
only was there never any promise, and not only
would such a promise have been inconsistent with
the Act and its section 45, but it would now be
impossible to carry out such a promise. The
respondent is in fact the subject of a deportation
order, and nothing in the Act can be used to
prevent its being carried out: it would be illusory to
think of the Governor in Council's special powers
under subsection 115(2) 4 as those powers are inap
plicable in such a case, in view of the content of
sections 50, 51 and 52 of the Act regarding the
implementation of deportation orders. 5
Finally, even in purely factual terms, is there
really any question of a reasonable hope or legiti
mate expectation? I took the trouble to cite earlier
the letter of June 17 which the respondent
obtained from the immigration office, after learn
ing of the existence of the special project, and on
which he completed what may be described as the
application for participation form. I cannot think
that after reading this letter, especially its first
paragraph, the respondent could fail to realize that
the project did not apply to someone in his posi
tion; that it applied only to those who had already
claimed refugee status during the inquiry held
concerning them, or to those who were still waiting
4 It reads as follows:
115... .
(2) The Governor in Council may by regulation exempt
any person from any regulation made under subsection (1)
or otherwise facilitate the admission of any person where
the Governor in Council is satisfied that the person should
be exempted from such regulation or his admission should
be facilitated for reasons of public policy or due to the
existence of compassionate or humanitarian consider
ations.
5 See Persad v. Canada (Minister of Employment and Immi
gration), Federal Court of Appeal, case No. A-140-83, judg
ment of October 18, 1983, unreported.
for their inquiries to be held, and so had not yet
been able to make their claims. That being so, the
respondent could not help but place the final para
graph of the letter of October 16 in its context
rather than be misled by it.
My conclusion therefore is that the second part
of the judgment of the learned Trial Judge is as
much without foundation as the first.
I would therefore allow the appeal, quash the
trial judgment and dismiss the respondent's
application for certiorari and other relief, with
costs in both courts.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A.: This is an appeal from a judg
ment of Teitelbaum J. granting relief, under sec
tion 18 of the Federal Court Act, 6 to the
respondent.
The respondent is an Algerian citizen. In 1985,
he was resident in France. He obtained a Canadi-
an visitor's visa in Paris and travelled to this
country on June 10, 1985. At the port of entry,
Mirabel, an immigration officer formed the opin
ion that he was not a genuine visitor and made a
report to this effect under subsection 20(1) of the
Immigration Act, 1976.' There followed an inqui
ry at the conclusion of which, on July 19, 1985, an
exclusion order was issued. No claim to refugee
status was asserted by the respondent prior to that
time.
The respondent appealed the exclusion order to
the Immigration Appeal Board, as he was entitled
to do under paragraph 72(2)(b), but he discon
tinued that appeal about a year later, on July 4,
1986.
6 R.S.C., 1985, c. F-7.
S.C. 1976-77, c. 52, as amended. Since all the facts of the
present case refer to a period prior to the date of the coming
into force of the Revised Statutes of Canada, 1985, or to the
dates of the coming into force of chapters 35 and 36 of the
Statutes of Canada, 1988, the references are to the Immigra
tion Act, 1976, as it stood prior to those dates.
In the meantime, and due it would seem to a
muddle, the respondent had been advised that he
might be eligible for administrative review under
the Refugee Claims Backlog Regulations. 8 This
advice took the form of a letter on official letter
head (Apeal Book, page 239). The record is entire
ly silent on how this letter came to be given to the
respondent and the Trial Judge made no finding
on the point nor did counsel speak of it. Certainly
there is nothing from which any inference could be
drawn that the respondent himself had somehow
arranged to have it given to him. Indeed, in the
light of the absence of evidence any conclusion as
to how the letter was transmitted (other, possibly,
than through the normal course of post) is purely
speculative. In any event, the advice in the letter
was wrong and it resulted in the respondent filing
a refugee claim on June 20, 1986. On October 16,
1986, he was told in writing, correctly, that he was
not eligible for administrative review since he had
not made his claim to refugee status prior to the
end of his inquiry. The letter advising him of this
decision concludes with the following paragraph:
Therefore, you may not apply for Permanent Residence in the
context of this Program and your claim to refugee status will
continue to be considered in the usual way. (Appeal Book, page
4.) [Emphasis added.]
Shortly thereafter, when it became apparent
that the appellant was proposing to remove the
respondent from Canada without giving any fur
ther consideration to his claim to refugee status,
these proceedings were launched in the Trial
Division.
The Order under appeal reads as follows:
For the reasons stated in the Reasons for Order, the application
for certiorari is hereby granted quashing the decision of Octo-
ber 16, 1986 given by the Respondent, Minister of Employment
and immigration. It is further ordered that the Petitioner be
entitled to have his application filed on June 20, 1986 for
Convention refugee status considered in the same manner as
any other application for refugee status filed within an inquiry,
the whole with costs in favour of the Petitioner. (Appeal Book,
page 242.)
" SO R/86-701, June 26, 1986.
As can be seen, this order deals with two quite
separate, though related, matters. The first part
purports to quash the decision of October 16, 1986
denying the respondent access to the administra
tive review project. The second part orders the
Minister to deal with the refugee claim as if it had
been "filed within an inquiry".
In my view, the first part of this order clearly
cannot stand. Counsel for respondent virtually
conceded as much. The "decision of October 16,
1986" was to the effect that the respondent did not
qualify under the Refugee Claims Backlog Regu
lations. That decision dealt not with a simple
question of procedure but with the substantive
rights of the respondent to become a permanent
resident pursuant to those Regulations. It was
clearly well-founded, as may be seen from para
graph (c) of the definition of "member of the
refugee claims backlog" in section 2, which refers
to a person who has:
2....
(e) indicated, on or before June 20, 1986, to an immigration
officer or an adjudicator, prior to the conclusion of an
inquiry respecting his status in Canada, his intention to claim
refugee status .... (Emphasis added.)
Since the respondent did not qualify as a
member of the refugee claims backlog, the deci
sion to refuse him the benefits of that program was
the only one the appellant could have made. The
Trial Judge was, with respect, wrong to quash it.
The second part of the Trial Judge's order raises
problems of a very different character. The
respondent's claim to refugee status, made on June
20, 1986, clearly fell outside the terms of subsec
tion 45(1), which deals only with claims made "at
any time during an inquiry". The procedure for
determination and redetermination of such claims
provided in sections 45, 70 and 71 [as am. by S.C.
1986, c. 13, s. 5] thus has no application here.
It remains, however, that the appellant Minister
has accepted that the respondent is a refugee
claimant: the claim form dated June 20, 1986, is
furnished by the Minister and countersigned by an
immigration officer (Appeal Book, page 236);
another document emanating from the Minister,
apparently dated September 15, 1986, describes
the respondent as a person who:
[TRANSLATION] claimed refugee status in Canada. (Appeal
Book, pages 7 and 236.)
I have already quoted the final paragraph of the
letter of October 16, 1986 stating that the
respondent's refugee claim will "continue to be
considered in the usual way." 9
Notwithstanding all this, the Minister has
refused to consider, still less to answer, the
respondent's claim to refugee status. The Trial
Judge held that in so doing the Minister had not
acted fairly. I agree.
The question whether the Minister has a duty
generally to consider any claim to refugee status
which is made outside the statutory framework
provided by section 45 does not arise here. Rather
the starting point is that, rightly or wrongly, the
Minister in fact exercises a power to consider such
claims and to give the benefit of refugee status
quite apart from the procedure for determination
and redetermination set out in the Act. Three
examples serve to make the point.
First, the Act in subsection 6(2) plainly contem
plates the admission into Canada of Convention
refugees but makes no specific provision for deter
mining the status of such persons while they are
still outside of Canada. Section 45 is clearly inap
propriate for the purpose while subsection 7(1) of
the Immigration Regulations, 1978 1 ° suggests that
the Minister has, in fact, established some kind of
procedure by which visa officers abroad may
determine persons to be Convention refugees. The
inference is clear that some people arrive in
Canada having already acquired the benefit of
refugee status without ever having submitted to
the statutory procedure for determination. Second
ly, counsel for the Minister conceded that the
Minister has on occasion (she was careful to
emphasize that this was by no means a matter of
9 The "usual way" would, of course, at that time have
included the right to have a hearing (Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177). It is
noteworthy that, at the time of the October 16 letter, the
Minister knew that the respondent had no such right in law
since he had not filed his claim in time.
10 SOR/78-l72, February 24, 1978.
routine or common practice) considered and grant
ed "in status" refugee claims, i.e. claims to be a
Convention refugee asserted by persons who were
at the time legally in Canada and not subject to
inquiry. Any recognition of the status of such
persons as refugees must necessarily be outside the
framework of section 45. Finally, in at least one
case" the Minister has actually been ordered to
consider a claim to Convention refugee status
asserted by a person who, having entered Canada
on a ministerial permit issued under section 37,
was subject to be removed by ministerial order
without inquiry; clearly such person could never
bring himself within the opening words of subsec
tion 45(1).
The situation, accordingly, in the present case is
the following: the respondent has not asserted a
claim for refugee status in accordance with the
procedure provided by the statute and is now out
of time for doing so. On the other hand, the
respondent has filed a claim for refugee status
which has been recognized as such, in writing, by
the Minister, who has advised the respondent that
the claim will be considered. The Minister has
admitted to considering other claims for refugee
status asserted outside the framework of the proce
dure provided in the statute, but refuses now to
consider this one.
In my view, these facts are such as to engage the
doctrine of fairness so as to require the Minister to
give consideration to the respondent's claim prior
to pursuing any attempt to remove him from
Canada.
The applicable principle is sometimes stated
under the rubric of "reasonable expectation" or
"legitimate expectation". It has a respectable his
tory in administrative law and was most forcefully
stated by the Privy Council in the case of
" See Tonato v. Minister of Employment and Immigration,
[1985] 1 F.C. 925 (T.D.).
Attorney-General of Hong Kong v. Ng Yuen
Shiu. 12 In that case, Ng was an illegal immigrant
to Hong Kong from Macau, one of several thou
sands. The Government gave a public assurance
that each illegal immigrant would be interviewed
and each case treated on its merits. Notwithstand
ing this, Ng, whose illegal status was not in dis
pute, was ordered deported without being given the
opportunity to explain why discretion should be
exercised in his favour on humanitarian and other
grounds. The Privy Council held that in so acting
the authorities had denied Ng's reasonable expec
tations based upon the Government's own state
ments. Lord Fraser of Tullybelton put the matter
thus (at apge 638):
... when a public authority has promised to follow a certain
procedure, it is in the interest of good administration that it
should act fairly and should implement its promise, so long as
implementation does not interfere with its statutory duty. The
principle is also justified by the further consideration that,
when the promise was made, the authority must have con
sidered that it would be assisted in discharging its duty fairly
by any representations from interested parties and as a general
rule that is correct.
In the opinion of their Lordships the principle that a public
authority is bound by its undertakings as to the procedure it
will follow, provided they do not conflict with its duty, is
applicable to the undertaking given by the Government of
Hong Kong to the applicant, along with other illegal immi
grants from Macau, in the announcement outside the Govern
ment House on October 28, that each case would be considered
on its merits.
In my view, the quoted passage is applicable in
every respect to the matter at bar. The Minister
has promised to give consideration to the respond
ent's claim for refugee status. While such con
sideration is not specifically provided for in the
statute, there is nothing to prohibit it and the
Minister has, in fact, considered other claims for
refugee status by persons for whom the statutory
procedure was not available. For the Minister to
consider the respondent's claim would not conflict
with his statutory duty.
It follows, in my view, that the Trial Judge was
right to order the Minister to consider the applica
tion for refugee status.
12 [ I983) 2 A.C. 629 (P.C.).
There remains the question of procedure. The
Trial Judge's order requires the Minister to deal
with the application as if it had been filed during
an inquiry. With respect, I think this is not quite
adequate in the circumstances. The procedure for
determination of refugee claims provided by sec
tion 45 has been conclusively determined not to
satisfy the requirements of fundamental justice;' 3
the scheme is saved by the oral hearing required
by subsection 71(1) as part of the procedure for
redetermination before the Immigration Appeal
Board. The Board's jurisdiction, being wholly
statutory however, cannot flow from the Trial
Judge's order; the result of that order would there
fore be that the respondent would have his claim
determined by the inadequate procedure of section
45 without being able to benefit from the saving
provisions of sections 70 and 71. Accordingly I
think it preferable not to specify the procedure
which the Minister must follow to deal with the
respondent's claim to refugee status other than to
require him to follow the dictates of fairness and
of fundamental justice.
I would accordingly allow the appeal in part, I
would strike out the first part of the order under
attack and vary the second part so as to order that
the Minister deal with respondent's application for
Convention refugee status in accordance with the
rules of fairness and the principles of fundamental
justice. I would not disturb the order as to costs in
first instance and would make no order as to costs
in appeal.
* * *
The following are the reasons for judgment
rendered in English by
DESJARDINS J.A.: Perhaps an administrative
error has occurred here by the fact that the
respondent should not have received, in that form,
the letter that was sent to him on October 16,
1986. But the fact remains that the respondent,
who was under an exclusion order issued on July
"Singh et al. v. Minister of Employment and Immigration,
supra.
19, 1985, has received on October 16, 1986,
addressed to him personally, a letter from the
Minister adivising him that he was not eligible to
the Administrative Review Project under the
Refugee Claims Backlog Regulations, 14 and that:
... your claim to refugee status will continue to be considered
in the usual way. (Appeal Book, at page 4)
Perhaps the words "in the usual way" were
never intended to refer to the power enjoyed by the
Minister to consider a refugee claim outside the
procedure set in section 45 of the Immigration
Act, 1976 as these words were part of a standard
form in the letter of October 16, 1986.
But since this power of the Minister exists and
can be exercised by him and is not contrary to the
Act, I cannot exclude the possibility that this letter
of October 16, 1986 can be interpreted as giving
an undertaking that the refugee claim filed by the
respondent on June 20, 1986 would be considered
notwithstanding the exclusion order since the exer
cise of that power would be the usual way in the
circumstances. Hence, I do not hesitate to apply
the doctrine of legitimate expectation 15 to the facts
of this case.
I agree with the reasons for judgment given by
Hugessen J.A.
14 SOR/86-701, June 26, 1986.
15 To the authorities cited by my colleagues, I add: R v
Secretary of State for the Home Dept, ex p Ruddock, [ 1987] 2
All ER 518 (Q.B.); Reg. v. Inland Revenue Comrs., Ex parte
Preston, [1985] A.C. 835 (H.L.); Leech v. Deputy Governor of
Parkhurst Prison, [1988] 2 W.L.R. 290 (H.L.), at p. 306. For
an extensive review of the case law on the doctrine of legitimate
expectation, see Robert E. Riggs, "Legitimate Expectation and
Procedural Fairness in English Law" (1988), 36 Am. J. Comp.
L. 395. For an explanation of the doctrine, see C. F. Forsyth,
"The Provenance and Protection of Legitimate Expectation"
[1988] 47 C.L.J. 238; Brigid Hadfield, "Judicial Review and
the Concept of Legitimate Expectation" (1988), 39 N.I.L.Q.
103. See also Clive Lewis, "Fairness, Legitimate Expectations
and Estoppel", (1986), 49 Modern L. Rev. 251.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.