T-2383-88
Marco Carrion (Applicant)
v.
Minister of Employment and Immigration, Attor
ney General for Canada, Governor General in
Council (Respondents)
INDEXED AS: CARRION V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Trial Division, Muldoon J.—Winnipeg, December
19; Ottawa, December 23, 1988.
Immigration — Refugee status — Applicant seeking to have
status determined under Immigration Act, 1976, not under
amending statute — Claiming Convention refugee status prior
to date amending statute in force — Substantive right to oral
hearing preserved by transitional provisions in amending
statute.
Judicial review — Prerogative writs — Applicant claiming
Convention refugee status prior to date statute amending
Immigration Act, 1976 coming into force — Presumption
matters proceeding normally in accordance with statutory
provisions, although no time limits imposed for performance
of statutory duties leading to determination of status —
Motions for mandamus, certiorari and prohibition dismissed
— Judicial notice of delays in system but, as not attributable
to respondents, no basis for mandamus — Legislative power to
designate date laws coming into force delegated to cabinet —
Governor in Council decisions in such matters of general policy
not reviewable absent egregious case on jurisdictional or other
compelling grounds — No such grounds here.
Construction of statutes — Transitional provisions of stat
ute amending Immigration Act, 1976 — Applicant claiming
Convention refugee status prior to coming into force of amend
ing statute — Substantive right to oral hearing preserved by
transitional provisions — As rights not vesting in procedural
mechanisms, but in substantive protections, right need not be
articulated in previous form — As new law preserving appli
cant's right, although in different form, applicant retaining
benefit of Interpretation Act, s. 35(c) (now 43(c)).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to amend the Immigration Act, 1976 and to
amend other Acts in consequence thereof, S.C. 1988, c.
35, ss. 37, 41, 42.
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27, 45.
Interpretation Act, R.S.C. l970, c. 1-23, s. 35(c).
Interpretation Act, R.S.C., 1985, c. I-21, s. 43(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; Thorne's Hardware Ltd. et
al. v. The Queen et al., [1983] 1 S.C.R. 106; 143 D.L.R.
(3d) 577.
DISTINGUISHED:
Alvero-Rautert v. Canada (Minister of Employment and
Immigration), [1988] 3 F.C. 163; (1988), 18 F.T.R. 50; 4
Imm. L.R. (2d) 139 (T.D.).
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
REFERRED TO:
Gill v. Minister of Employment and Immigration, [1984]
2 F.C. 1025; (1984), 60 N.R. 241 (C.A.).
COUNSEL:
David Matas for applicant.
Craig J. Henderson for respondents.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.: This matter came on for hearing
and adjudication at Winnipeg, Manitoba, on
December 19, 1988. Both the applicant and the
respondents were represented by counsel.
The applicant seeks the following relief:
(a) mandamus ordering the respondent Minister
i. to determine whether the applicant is a Con
vention refugee before S.C. 1988, c. 35 comes
into force with respect to the applicant; and
ii. to inform the applicant of the determination
of the claim before S.C. 1988, c. 35 comes into
force with respect to the applicant.
(b) certiorari quashing with respect to the appli
cant, the Order in Council of October 31, 1988,
proclaiming the coming into force of S.C. 1988, c.
35, on January 1, 1989.
(c) prohibition prohibiting the Governor General
in Council from proclaiming the coming into force
of S.C. 1988 c. 35 with respect to the applicant
until the respondent Minister has
i. determined whether the applicant is a Conven
tion refugee; and
ii. informed the applicant of the determination
of the claim.
(d) Such further or other order as to the Court
may seem just and proper, [with costs of the
proceedings.]
The grounds of the motion are:
1. The duty to act fairly encompasses a duty not
unreasonably to delay to act.
2. Unreasonable delay is a violation of the right
not to be subjected to unusual treatment.
3. Unreasonable delay is a denial of the right to
equal benefit and equal protection of the law.
4. A person determined by the Minister of
Employment and Immigration under the present
Immigration Act, 1976 [S.C. 1976-77, c. 52] not
to be a Convention refugee is eligible to have his
claim redetermined, either under the present Act,
or the Act as amended by S.C. 1988, c. 35. A
person who has not had his claim that he is a
Convention refugee determined under the present
Immigration Act, 1976 by the Minister of
Employment and Immigration is not eligible to
have a redetermination of his claim under the Act
as amended by S.C. 1988, c. 35, in the case of a
negative determination.
5. The right to a redetermination is a substantive
right and not a matter of procedure.
6. Once a person makes a claim at an inquiry that
he is a Convention refugee, his right to redetermi-
nation vests.
7. The deprivation of a right to redetermination
vested in a refugee claimant is a violation of the
right not to be deprived of life, liberty and security
of the person except in accordance with the princi
ples of fundamental justice. The applicant's affida
vit is filed in support of his motion for the relief
above stated.
In essence, the applicant seeks to have his claim
of refugee status determined under the present
régime of the Immigration Act, 1976, rather than
to have it determined pursuant to the new régime
under An Act to amend the Immigration Act,
1976 and to amend other Acts in consequence
thereof, S.C. 1988, c. 35 to which Royal assent
was accorded on July 21, 1988. The amending
statute, according to SI/88-231, dated December
7, 1988, and published in the Canada Gazette,
Part II, Vol. 122, No. 25, will be "proclaimed in
force January 1, 1989".
The applicant deposes that he is a citizen of
Chile who arrived in Canada on August 6, 1988
with visitor status until August 31, 1988. Because
the applicant over stayed, on September 2, 1988,
an immigration officer reported him for having
contravened the Immigration Act, 1976.
That report, a copy of which is exhibit A to the
applicant's affidavit, made under section 27 of the
Act alleges:
that MARCO ANTONIO CARRION:
— entered Canada on 06 August 1988 at Win-
nipeg International Airport as an undocu
mented visitor with valid status to 31 August
1988;
— has remained in Canada beyond the period
of his authorization and therefore ceased to
be a visitor pursuant to 26(1)(c) of the
Immigration Act;
— by his own admission stated it was his inten
tion to remain in Canada permanently and
that he advised the visa officer that he was
only coming to Canada to visit. Had he
advised the visa officer of his true intent, he
would not have been issued a visa to come to
Canada. [This appears to be covered by
paragraph 27(2)(g) of the Act.]
An enquiry was directed under subsection 27(3) of
the Act.
The enquiry so directed was held on October 20,
1988 and the adjudicator found the applicant to be
in violation as alleged. The applicant claimed to be
a Convention refugee. On November 16, 1988,
upon consent of the respondents herein, Mr. Jus
tice Teitelbaum ordered that the applicant be
examined under oath pursuant to subsection 45(1)
of the Act on November 22, 1988. A senior immi
gration officer examined the applicant regarding
his claim to be a Convention refugee on that day.
Neither the applicant, nor his counsel, asserts any
failure to comply with subsections 45(2) and (3).
Omnia prcesumuntur legitime facta donee probe-
tur in contrarium.
Thus, it is presumed that the applicant's "claim,
together with a transcript of the examination with
respect thereto", will have been "referred to the
Minister for determination", and that the Minister,
in turn will have referred them "to the Refugee
Status Advisory Committee [RSAC] established
pursuant to section 48 for consideration", all as
required by subsections 45(2) and (4). Thus, it
may be presumed that matters are proceeding
normally in accordance with the statutory provi
sions. It should be noted however that the statute
and regulations, as counsel on both sides acknowl
edge, impose no time limits on either RSAC or the
Minister for performance of their respective statu
tory duties leading to a determination of the appli
cant's status. Indeed, the applicant has already
been notified, by letter from the Canada Immigra
tion Centre, Winnipeg, dated December 9, 1988 of
the forwarding of his examination transcript and
exhibits to the RSAC on that date.
The applicant is quite correct in asserting that
unreasonable delay violates fair treatment, the
right not to be subjected to unusual treatment and
the right to equal benefit and equal protection of
the law. The authorities for this multifarious
proposition are: Gill v. Minister of Employment
and Immigration, [ 1984] 2 F.C. 1025; (1984), 60
N.R. 241 (C.A.); and Alvero-Rautert v. Canada
(Minister of Employment and Immigration),
[1988] 3 F.C. 163; (1988), 18 F.T.R. 50; 4 Imm.
L.R. (2d) 139 (T.D.); appeal discontinued May
25, 1988. Here, however, there is no evidence of
unreasonable delay. There are delays which are
inherent in the system to be sure. Judicial notice
can be taken of the incidence of would-be refugees
and other immigrants, whose counsel provide a
continuing stream of applications to this Court for
extraordinary remedies, which directly and more
likely indirectly, through dilution of the efforts of
the Minister, the Department and the Commis
sion, probably creates delay in the present refugee
determination system. Such delays in the system
cannot, in this instance (as distinct from that
revealed in the Alvero-Rautert case), be attribut
ed to the respondents.
The Court cannot find, as the applicant's coun
sel urges, that the Minister is delaying or declining
to perform any legal duty. It is trite law that such
a finding is a prerequisite for mandamus. The
application for an order in nature of mandamus
will be dismissed. Certainly there is no basis for
making any such order merely to forestall applica
tion of the new law to the applicant's circum
stances.
The applicant's present and prospective rights to
invoke the Minister's penultimate determination of
his refugee status, and a contingent right of appeal
to, and an oral hearing before, the Immigration
Appeal Board (IAB) for the ultimate redetermina-
tion of his status, would become vested, as
claimed, if the succeeding statute were to deny the
applicant a genuine hearing as was exacted by the
judgment of the Supreme Court of Canada in
Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177. In the present
circumstances he stands in no jeopardy of being
denied any substantive right, because of the effect
of the transitional provisions emplaced in the stat
ute by amendment. They were published in the
Canada Gazette, Part III, Vol. 11, No. 7 [S.C.
1988, c. 35] dated November 3, 1988 thus:
TRANSITIONAL PROVISIONS
37. (I) In this section and sections 38 to 50,
* * *
"former Act" means the Immigration Act, 1976 as it read
immediately before the commencement day [ie. January 1,
1989];
"former Board" means the Immigration Appeal Board estab
lished by section 59 of the former Act;
"former Committee" means the Refugee Status Advisory Com
mittee established by section 48 of the former Act.
(2) In this section and sections 38 to 50
(a) words and expressions have the same meaning as in the
said Act; and
(b) a reference to the said Act is a reference to the Immigra
tion Act, 1976, as amended by this Act.
* * *
41. Notwithstanding any provision of the said Act, the
following persons, being persons who claim to be Convention
refugees, are eligible to have their claims determined by the
Refugee Division:
(a) every person who, on the commencement day, is the
subject of an inquiry that is in adjournment pursuant to
subsection 45(1) of the former Act and whose claim has not
then been determined by the Minister under subsection 45(4)
of the former Act;
(b) every person who, on the commencement day, is the
subject of an inquiry that is in adjournment pursuant to
subsection 45(1) of the former Act and who has then been
determined by the Minister under subsection 45(4) of the
former Act not to be a Convention refugee, other than a
person
(i) who has not applied under subsection 70(I) of the
former Act for a redetermination of the claim within the
time limited therefor, where that time has expired before
the commencement day,
(ii) whose application under subsection 70(1) of the former
Act for a redetermination of the claim has been dismissed
for want of perfection before the commencement day,
(iii) whose application under subsection 70(1) of the
former Act for a redetermination of the claim is to be dealt
with by the former Board under section 48, or
(iv) who, following an oral hearing before the former
Board, was before the commencement day found not to be
a Convention refugee on an application under subsection
70(1) of the former Act; and
(c) every person who, on the commencement day, is or,
before the commencement day, was the subject of an inquiry
that was resumed pursuant to subsection 46(1) of the former
Act, other than a person described in subparagraph (b)(i),
(ii) or (iv).
42. (1) Where, by virtue of paragraph 41(a) or (b), a
person is eligible to have a claim to be a Convention refugee
determined by the Refugee Division, a senior immigration
officer shall cause a hearing to be held before an adjudicator
and a member of the Refugee Division with respect to the
claimant.
(2) Where, by virtue of paragraph 41(c), a person is eligible
to have a claim to be a Convention refugee determined by the
Refugee Division and the inquiry was not concluded before the
commencement day, the inquiry shall be adjourned and a senior
immigration officer shall cause a hearing to be held before an
adjudicator and a member of the Refugee Division with respect
to the claimant.
(3) Where, by virtue of paragraph 41(c), a person is eligible
to have a claim to be a Convention refugee determined by the
Refugee Division, the inquiry was concluded before the com
mencement day and a removal order or departure notice was
outstanding against the claimant on that day, the claimant
may, within three months after that day, seek a determination
of the claim by notifying a senior immigration officer and, on
being so notified, the senior immigration officer shall cause a
hearing to be held before an adjudicator and a member of the
Refugee Division with respect to the claimant.
It is clear that the substantive right to a hearing
is, and will be, preserved by the recited and other
provisions of the new Act. Rights do not vest in
mere procedural mechanisms but only in substan
tive protections and obligations required by law.
Accordingly, the right does not need to be
articulated in the same previous form, so long as
the substance is preserved. Were this not so, the
legislative branch of government would be faced
with enormous obstacles in the way of changing
the law. Because the new law preserves the appli
cant's right or privilege, although not in the same
form of procedures as before, he retains the benefit
of paragraph 35(c) of the Interpretation Act,
R.S.C. 1970, c. I-23, which is continued as para
graph 43(c) of that Act of the same name in
R.S.C., 1985, c. I-21.
In the pure notion of the supremacy of Parlia
ment, there is no doubt that Parliament can, by
apt expression, divest rights which it has created
and vested. Today, Parliamentary supremacy is
limited not only by the fetter of the division of
powers in this federal state, but also the other
constitutional constraints imposed in 1982. So it
has come about that by subscribing to the Conven
tion on refugees and by necessarily legislating
provisions for determination of refugee status, Par
liament has created a right with constitutional
colouration, pursuant to the Canadian Bill of
Rights [R.S.C. 1970, Appendix III] and the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitutional Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)]. As it was
held by the Supreme Court of Canada in the
Singh case, whoever claims refugee status is en
titled to an oral hearing. That is the substantive
right. That is what Parliament has taken pains to
preserve. The applicant has made out no valid
complaint in that regard.
It is in the very nature of the legislative func
tion, that the legislature can provide for the date of
the coming into force of the laws which it enacts.
When the legislature delegates that power to the
executive branch, that which it delegates is,
accordingly, a quintessentially legislative function.
On the high authority of the Supreme Court judg
ments in Attorney General of Canada v. Inuit
Tapirisat of Canada et al., [1980] 2 S.C.R. 735
and of Thorne's Hardware Ltd. et al. v. The
Queen et al., [1983] 1 S.C.R. 106; 143 D.L.R.
(3d) 577, the Court will not interfere with cabinet
decisions of a legislative nature. In the latter case,
Mr. Justice Dickson, the present Chief Justice of
Canada, writing for the unanimous Court put the
matter thus [at pages 111 S.C.R.; 581 D.L.R.]:
The mere fact that a statutory power is vested in the
Governor in Council does not mean that it is beyond judicial
review: Attorney General of Canada v. Inuit Tapirisat of
Canada, [1980] 2 S.C.R. 735 at p. 748. I have no doubt as to
the right of the courts to act in the event that statutorily
prescribed conditions have not been met and where there is
therefore fatal jurisdictional defect. Law and jurisdiction are
within the ambit of judicial control and the courts are entitled
to see that statutory procedures have been properly complied
with: R. v. National Fish Co., [1931] Ex.C.R. 75; Minister of
Health v. The King (on the Prosecution of Yaffe), [1931] A.C.
494 at p. 533. Decisions made by the Governor in Council in
matters of public convenience and general policy are final and
not reviewable in legal proceedings. Although, as I have
indicated, the possibility of striking down an order in council on
jurisdictional or other compelling grounds remains open, it
would take an egregious case to warrant such action. This is not
such a case.
Here the legislative power which Parliament
vested in the Governor General in Council is obvi
ously a matter of Parliament's "general policy"
regarding the bringing into force of various stat
utes including the amendments under consider
ation. The decision of the Governor in Council is
therefore "final and not reviewable in legal
proceedings".
The applicant has not demonstrated "an egre
gious case" on any grounds—including discrimina
tion, unusual treatment or unfairness—for quash
ing the proclamation of the entry into force of the
amending statute, nor for prohibiting the Governor
in Council from proclaiming such coming into
force.
For all of the foregoing reasons, the applicant's
motions for mandamus, certiorari and prohibition
are to be dismissed with costs payable by the
applicant in the respondents' favour.
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.