A-619-90
Gur Raj Singh Grewal (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: GREWAL V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Heald, MacGuigan and Linden
JJ.A.—Toronto, June 21; Ottawa, September 12,
1991.
Immigration — Refugee status — Reopening inquiry —
Adjudicator refusing to reopen immigration inquiry to allow
applicant to claim Convention refugee status — Facts arising
after ordered deported (risk of persecution if returned to India)
twice considered by Immigration Appeal Board before dis
missing appeal from deportation order and before refusing to
reopen appeal, by Minister before refusing to intervene on
humanitarian grounds, and by Adjudicator before refusing to
reopen inquiry — Adjudicator stating Immigration Act, s. 35
permitting reopening only to receive new evidence which may
lead to change in earlier decision — Distinguishing Kaur v.
Canada (Minister of Employment and Immigration) (permit-
ting reopening if constitutional exemption granted i.e. where
situation manifestly unfair) on ground Charter, s. 7 not vio
lated — Within Adjudicator's jurisdiction to consider constitu
tional arguments — No failure to exercise jurisdiction.
Constitutional law — Charter of Rights — Life, liberty and
security — Application to set aside Adjudicator's refusal to
reopen immigration inquiry to allow applicant to claim Con
vention refugee status — Charter, s. 7 requirement of ample
opportunity to have new evidence heard and fully considered
by authoritative body met — Fundamental justice not prescrib
ing particular method of dealing with factual, legal issues.
This was an application to set aside an Adjudicator's refusal
to reopen an immigration inquiry to allow the applicant to
claim Convention refugee status. While demonstrating at
Toronto against the government of India, the applicant shot a
police officer and was subsequently convicted of attempted
murder. While incarcerated, an immigration inquiry was held
and he was ordered deported. By the time his appeal to the
Immigration Appeal Board (based on "all the circumstances of
the case") was heard, a book describing events at the demon
stration and its aftermath had been published. The Board dis
missed the appeal, describing the applicant's fear of persecu
tion if he were returned to India, as "mere speculation".
Reports about applicant's unsuccessful appeal and his immi
nent deportation appeared in the Punjabi press. The applicant
submitted that the publicity sparked police searches of his
home village and threats to residents not to harbour him should
he return there. Villagers who feared for the applicant's safety
warned him not to return home. A subsequent application to
the Minister to intervene on humanitarian and compassionate
grounds based on the risk to the applicant if returned to India
was refused. The Immigration Board (Appeal Division) denied
an application, based on new information, to reopen the appeal
from the deportation order. The Adjudicator then refused to
reopen the inquiry at which the deportation order had been
issued, stating that Immigration Act, section 35 permitted
reopening for the "sole purpose of receiving new evidence
which may lead to a change in a decision previously given by
an adjudicator". She distinguished Kaur v. Canada (Minister
of Employment and Immigration), wherein it was held that an
inquiry may be reopened where a constitutional exemption is
granted i.e. where a situation is manifestly unfair, on the basis
that there had not been a violation of the applicant's rights
under Charter, section 7.
The applicant argued that the Adjudicator had erred in refus
ing to reopen the inquiry on the basis that Charter, section 7
had been violated. It was further argued that it is constitution
ally necessary, in appropriate circumstances, to permit the
reopening of a hearing to claim refugee status. The issues were
whether the applicant's Charter, section 7 right had been vio
lated (whether there had been a violation of the principles of
fundamental justice) and whether the Adjudicator had failed to
exercise her jurisdiction by failing to consider the constitu
tional arguments.
Held, the application should be dismissed.
It has been held that an inquiry may be reopened where not
to do so would amount to a denial of fundamental justice. Sec
tion 7 requires that a refugee claimant be given ample opportu
nity to have new evidence of potential persecution in his home
country heard and fully considered by an authoritative body.
This requirement was met. The applicant was afforded ample
opportunity to present his new facts in one form or another to
several authoritative bodies. While the new facts may not have
been examined exactly as he would have liked, fundamental
justice does not prescribe a particular method of dealing with
legal or factual issues. Nor, was there any circumstance at the
time of the original hearing which denied the applicant funda
mental justice.
The Adjudicator had jurisdiction to consider constitutional
arguments and did exercise it when she distinguished this case
from Kaur. Although her analysis of the constitutional ques
tion was not elaborate, she did not refuse to consider the con
stitutional question.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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], s. 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. I-2, ss. 35(1), 43 (as am.
by R.S.C., 1985 (4th Supp.), c. 28, s. 14), .114(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Beare, [1988] 2 S.C.R. 387; (1988), 55 D.L.R. (4th)
481; [1989] 1 W.W.R. 97; 71 Sask. R. 1; 45 C.C.C. (3d)
57; 66 C.R. (3d) 97; 36 C.R.R. 90; 88 N.R. 205.
DISTINGUISHED:
Kaur v. Canada (Minister of Employment and Immigra
tion), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317; 104
N.R. 50 (C.A.); Mattia v. Canada (Minister of Employ
ment and Immigration), [1987] 3 F.C. 492; (1987), 10
F.T.R. 170 (T.D.).
CONSIDERED:
Chiarelli v. Canada (Minister of Employment and Immi
gration), [1990] 2 F.C. 299; (1990), 67 D.L.R. (4th) 697;
42 Admin. L.R. 189; 10 Imm. L.R. (2d) 137; 107 N.R.
107 (C.A.).
REFERRED TO:
Gray v. Fortier, [1985] 2 F.C. 525; (1985), 21 D.L.R.
(4th) 14; 61 N.R. 197 (C.A.); Chandra v. Canada (Minis-
ter of Employment and Immigration), A-753-86, Thurlow
C.J., judgment dated 22/5/87, F.C.A., not reported;
Ramnarian v. Minister of Employment and Immigration
(1981), 55 N.R. 67 (F.C.A.); Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177;
(1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14
C.R.R. 13; 58 N.R. 1; Re Seaboyer and The Queen
(1987), 61 O.R. (2d) 290; 37 C.C.C. (3d) 53 (CA.); affd
sub nom. R. v. Seaboyer, R. v. Gayme [1991] 2 S.C.R.
577; Longia v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 288; (1990), 44 Admin. L.R.
264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.); Bains
v. Canada (Minister of Employment and Immigration),
[1989] 3 F.C. 487; (1989), 61 D.L.R. (4th) 573; 47 C.R.R.
361; 8 Imm. L.R. (2d) 165 (C.A.); Gayme v. The Queen et
al., [1991] 2 S.C.R. 577; Armadale Communications Ltd
v. Adjudicator (Immigration Act), [1991] 3 F.C. 242;
(1991), 127 N.R. 342 (C.A.); Tétreault-Gadoury v.
Canada (Employment and Immigration Commission)
[1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 91
CLLC 14,023; 126 N.R. 1; Cuddy Chicks Ltd. v. Ontario
Labour Relations Board [1991] 2 S.C.R. 5; (1991), 81
D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991]
OLRB Rep. 790; Douglas/Kwantlen Faculty Assn. v.
Douglas College, [1990] 3 S.C.R. 570; (1990), 91 CLLC
17,002.
COUNSEL:
Barbara Jackman for applicant.
Jaqueline L. Ott for respondent.
SOLICITORS:
Jackman, Joseph & Associates, Toronto, for
applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
LINDEN J.A.: Gur Raj Singh Grewal came to
Canada from India in 1980. In the fall of 1982,
Grewal, then 19 years of age, attended a public dem
onstration in downtown Toronto to protest against the
government of India. At this demonstration were two
rival groups of Sikhs with divergent views, both
religious and political. Tempers flared, violence
erupted, guns were fired and people were injured.
During the mêlée, the applicant, Grewal, fired a gun
he had been carrying at Police Constable Christopher
Fernandez, while he was trying to arrest another
demonstrator who had also fired his revolver. "The
bullet grazed the back of [the officer's] skull, leaving
a five inch furrow that took twenty-five stitches to
close".' As a result of this event, Grewal was charged
with attempted murder, was convicted on March 19,
1983, and was sentenced to 14 years in prison (later
reduced on appeal to 9 years.)
Late in 1985, during Grewal's incarceration at the
Joyceville Penitentiary, an immigration inquiry was
held and Grewal, who had been granted landed immi
grant status, was ordered deported. An appeal was
launched to the Immigration Appeal Board, which
included a submission on Grewal's behalf that "hav-
ing regard to all the circumstances of the case," he
should not be deported on the basis that he "might
suffer" if he were returned to India because of the
I See Soft Target (1989), a book which was attached as an
exhibit to an affidavit filed in Court.
publicity surrounding his crime and conviction. By
the time the appeal was argued, a book entitled Soft
Target had been published describing the events at
the demonstration and the aftermath. Additional
information concerning alleged human rights abuses
in India had also come to light. On November 17,
1989, however, the appeal was dismissed, the Immi
gration Board describing as "mere speculation"
Grewal's fear that he faced risk of persecution if he
were returned to India. Leave to appeal to this Court
was sought, but denied.
Early in February 1990, reports about Grewal's lost
appeal and his imminent deportation appeared in arti
cles in the Punjabi press. It is alleged by the applicant
that these articles sparked police searches of his
home village in the Punjab, and threats by the police
to the villagers not to harbour him should he return
there. Grewal claims he was subsequently warned by
various individuals in India not to return home
because they feared possible violence against him
and possibly his death.
After the leave to appeal was refused by this Court,
Grewal's next legal action was to apply to the Minis
ter for relief on humanitarian and compassionate
grounds, pursuant to subsection 114(2) of the Act
[Immigration Act, R.S.C., 1985, c. I-2], alleging that
he would be at risk if he returned to India. It was sug
gested in the application that he be allowed to do the
"Buffalo shuffle", that is, to be removed from Canada
to the United States and then be allowed to enter
Canada again immediately on a ministerial permit
which would allow him to demonstrate to the authori
ties his successful rehabilitation. On April 19, 1990,
the Minister advised that she would not intervene in
Grewal's case on humanitarian and compassionate
grounds.
Application was then made on behalf of Grewal to
the Immigration Board (Appeal Division) to reopen
the appeal from the deportation order which it had
dismissed on November 17, 1989. The application
was based on the new information as to the risk
Grewal could face as a result of the Punjabi newspa
per stories, the searches for him and the warnings.
On May 16, 1990, the application to reopen the appeal
was heard by the Board, which then dismissed the
application.
The next day, May 17, 1990, the applicant's coun
sel wrote to G. R. McBrien, the Adjudicator who pre
sided at the applicant's immigration inquiry which
had taken place at the Joyceville Penitentiary. It was
urged that he reopen the inquiry at which the appli
cant was originally ordered deported in order to per
mit him to register a refugee claim, something he had
not done at the original inquiry since at that time he
had no reason to fear his return to India. This was
done pursuant to subsection 35(1) of the Immigration
Act which reads as follows:
35. (1) Subject to the regulations, an inquiry by an adjudica
tor may be reopened at any time by that adjudicator or by any
other adjudicator for the hearing and receiving of any addi
tional evidence or testimony and the adjudicator who hears and
receives such evidence or testimony may confirm, amend or
reverse any decision previously given by an adjudicator.
According to another section of the Act, a claim for
Convention refugee status is to be made at an inquiry,
and should no claim be made at that time, no such
claim by that person shall be considered thereafter.
Subsections 43(1) and (2) [as am. by R.S.C., 1985
(4th Supp.), c. 28, s. 14] read:
43. (1) Before any substantive evidence is given at an
inquiry, the adjudicator shall give the person who is the subject
of the inquiry an opportunity to indicate whether or not the
person claims to be a Convention refugee.
(2) Where, on being given an opportunity pursuant to sub
section (1), the person who is the subject of the inquiry does
not claim to be a Convention refugee, the inquiry shall be con
tinued and no such claim by that person shall thereafter be
received or considered at that inquiry or any application,
appeal or other proceeding arising therefrom.
On May 25, 1990, Ms. J. Algar, the Adjudicator
assigned to handle the matter in place of Mr.
McBrien, refused to reopen the inquiry on the basis
that section 35 of the Immigration Act allowed
reopening for the "sole purpose of receiving new evi
dence which may lead to a change in a decision pre
viously given by an adjudicator." She explained fur
ther that the section did not allow an adjudicator "to
reopen an inquiry for the purpose of permitting a per
son to claim Convention Refugee Status." In doing
so, the Adjudicator relied on the earlier decisions of
this Court which had construed strictly section 35.
(Gray v. Fortier, [1985] 2 F.C. 525 (C.A.); Chandra
v. Canada (Minister of Employment and Immigra
tion), A-753-86, F.C.A. May 22, 1987; Ramnarian v.
Minister of Employment and Immigration (1981), 55
N.R. 67 (F.C.A.). The Adjudicator distinguished
Kaur v. Canada (Minister of Employment and Immi
gration), [1990] 2 F.C. 209 (C.A.) on the basis that
there was "no violation of (the applicant's) rights
under Section 7 of the Charter at his inquiry." Leave
to commence a section 28 application to this Court
was sought and was granted by Mr. Justice Heald
J.A. on August 2, 1990.
At the time the matter was heard by this Court,
counsel for the applicant was unable to say with cer
tainty where Grewal was, although she indicated that
his solicitor had been in communication with him.
She stated that he was no longer in Canada, having
been deported to India in May of 1990. No evidence
was brought before this Court of any serious
problems encountered by Grewal since his return to
India.
In a thorough and powerful argument, counsel for
the applicant contended that the Adjudicator erred in
refusing to reopen the 1985 inquiry on the basis that
section 7 of the Charter was violated. It is plain that
the jurisprudence of this Court does not normally per
mit a reopening of an inquiry in order to make a refu
gee claim. (Gray v. Fortier, Chandra, Ramnarian,
supra.) 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.) [R.S.C., 1985, Appendix II, No. 44]], how
ever, is relied on by counsel in arguing that it is now
constitutionally necessary, in appropriate circum
stances, to permit the reopening of a hearing for this
purpose. Section 7 reads:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accor
dance with the principles of fundamental justice.
It has already been determined that the deportation of
refugees infringes their right to security of the per
son. (Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177. This, of course,
does not mean that people cannot be deported for
good reason, that is, as long as there is no violation of
the principles of fundamental justice. Thus, for exam
ple, a person may be deported if he commits a serious
crime. Mr. Justice Pratte of this Court has declared in
Chiarelli v. Canada (Minister of Employment and
Immigration), [ 1990] 2 F.C. 299 (C.A.) [at page 310]:
There is no injustice in requiring the deportation of a person
who has lost the right to remain in the country; there is no
injustice, either, in prescribing that a foreigner who has been
admitted here as a permanent resident will lose the right to
remain in the country if he is found guilty of an offence which,
in itself, Parliament considers to be serious.
Hence, it is permissible to deport a permanent resi
dent for the commission of a serious offence without
violating the Charter, as long as fundamental justice
has been accorded to that person before doing so.
The question, therefore, is whether there has been a
violation of the principles of fundamental justice in
this case. The legislation and the earlier jurisprudence
of this Court must yield to the dictates of section 7.
In Kaur v. M.E.I., supra, it was held that a consti
tutional exemption may be granted in appropriate cir
cumstances, pursuant to which an inquiry may be
reopened. This will be done if the situation is "mani-
festly unfair", to use Mr. Justice Heald's words, or
"remarkable", to use the language of Madam Justice
Desjardins in Kaur, supra, at pages 324 and 334, fol
lowing Grange J.A. in Re Seaboyer and The Queen
(1987), 61 O.R. (2d) 290, (C.A.) (affirmed on other
grounds by S.C.C. Aug. 22, 1991, [1991] 2 S.C.R.
577.) This Court has held in the past, pursuant to the
Charter, that inquiries may be reopened where it
would be a denial of fundamental justice not to do so.
Thus, it has been held that where a person failed to
make a refugee claim at the time of the inquiry
because of duress (Kaur v. M.E.I., supra) or because
of mental disability (Mattis v. Canada (Minister of
Employment and Immigration), [ 1987] 3 F.C. 492
(T.D.)), an inquiry may be reopened. If there is a
denial of natural justice during the original inquiry,
the Board could treat its earlier decision as a nullity
and reopen it in order to avoid the denial of funda
mental justice. (Longia v. Canada (Minister of
Employment and Immigration), [ 1990] 3 F.C. 288
(C.A.)). Moreover, an extension of time to apply for
a redetermination beyond the rigid limits prescribed
by the Immigration Act may also be required by sec
tion 7 (Bains v. Canada (Minister of Employment and
Immigration), [ 1989] 3 F.C. 487 (C.A.)).
In the circumstances of this case, therefore, have
the section 7 rights of the applicant been violated?
Unlike the applicants before the Court in Mattia and
Kaur, the applicant does not point to the original
hearing itself to demonstrate the unfairness of his sit
uation. There were no circumstances at the time of
the original hearing which denied him fundamental
justice. What the applicant points to are circum
stances which arose after the time of the original
hearing which he argues he should be allowed to
place before a reopened inquiry in order to have his
section 7 rights respected.
In my view, the Canadian justice system has not
unfairly closed its doors on this applicant. Rather, he
has already had the opportunity to present his new
facts, in one form or another, to several authoritative
bodies, without success. These new facts may not
have been examined in the particular way he would
have liked them to be, but fundamental justice does
not mandate a particular method of dealing with legal
or factual issues. Although a particular method of
dealing with legal or factual issues is not demanded,
what is required by the terms of section 7, in cases
such as the instant case, is that the refugee claimant
be given an ample opportunity to have new evidence
of potential persecution in his home country heard
and fully considered by an authoritative body.
Clearly, such a requirement has been met in this case
through the applicant's submission in the proceedings
subsequent to his original hearing. When the appli
cant appealed the 1985 decision deporting him, he
argued his new facts, for the first time, before a
Board, stating that he was at risk if he were returned
to India. The Board heard that argument, assessed
that evidence and rejected it as "mere speculation."
Further, when the applicant appealed to the Minister
on compassionate and humanitarian grounds, he
relied, for a second time, on the new facts about the
danger he would face if he returned to India. The
Minister, in rejecting his claim, presumably consid
ered this new evidence and was not persuaded. Later,
when he sought to reopen the 1989 decision of the
Appeal Division, he argued, for the third time, his
new facts that he was at risk and again he was unsuc
cessful. In launching his last application to reopen the
1985 inquiry, which is under attack here, the applicant
sought to rely, for a fourth time, on the new facts of
the danger he would now face if he were to be
returned to India, and again he was not successful in
convincing the Adjudicator to reopen the inquiry. He,
nevertheless, comes to this Court and urges that his
section 7 rights were violated by the Adjudicator. I
am not persuaded. The applicant has had ample
opportunity to convince various tribunals of the
importance of his new facts, and each time he has
failed. That is not a denial of fundamental justice. As
Mr. Justice La Forest stated in another context in R.
v. Beare, [1988] 2 S.C.R. 387 [at page 412]:
s. 7 of the Charter guarantees fair procedures but it does
not guarantee the most favourable procedures that can possibly
be imagined.
The Court received submissions from counsel in
respect of the the desirability of striking down the
legislation, or part thereof, and the possibility of
granting a constitutional exemption to the applicant.
Since the oral hearing of this section 28 [Federal
Court Act, R.S.C., 1985, c. F-7] application, the
Supreme Court of Canada's decisions in R. v.
Seaboyer, and in R. v. Gayme, [1991] 2 S.C.R. 577,
have been pronounced (August 22, 1991). Madam
Justice McLachlin's analysis at pages 41 to 44 of her
reasons for judgment canvasses the issue of constitu
tional exemptions. However, since, in the case at bar,
the Court has found that the applicant's section 7
rights have not been violated, it becomes unnecessary
to determine whether the legislation (or part thereof)
should be declared of no force and effect or whether
a constitutional exemption would have been a valid
option in the instant case.
It was argued, both orally and in written briefs fol
lowing the oral hearing, that the adjudicator refused
to exercise her jurisdiction in failing to consider the
constitutional arguments raised in this case. Follow
ing the oral argument in this appeal, another panel of
this Court decided that adjudicators possess the juris
diction to consider constitutional arguments because
they are "vested with the `practical capability' to
decide questions of law including questions touching
the application and supremacy of the Charter" and
may "find a legislative provision inconsistent with
the Charter" (see Hugessen J.A. at page 247 and page
249 in Armadale Communications Ltd. v. Adjudicator
(Immigration Act), [1991] 3 F.C. 242 (C.A.), follow
ing Tétreault-Gadoury v. Canada (Employment and
Immigration Commission), [19911 2 S.C.R. 22. See
also Cuddy Chicks Ltd. v. Ontario (Labour Relations
Board) [1991] 2 S.C.R. 5; Douglas/Kwantlen Faculty
Assn. v. Douglas College, [1990] 3 S.C.R. 570).
Hence this Adjudicator had that power and did exer
cise it in this case (even though we are told the con
stitutional arguments were not raised before her)
when she wrote:
... this case is distinguished from Kaur in that there had been
no violations of (the Applicant's) rights under Section 7 of the
Charter at his inquiry.
It may be that her analysis of the constitutional issue
was not all that it might have been, but she did not
refuse to consider the constitutional question. Hence,
she did not fail to exercise her jurisdiction so as to
render her decision faulty.
Because of the conclusion I have reached that the
Adjudicator did not err in the result, there is no need,
in this case, to consider the detailed arguments about
the remedial powers that may be exercised by Adju
dicators, which were so fully argued in the written
briefs.
This section 28 application, therefore, will be dis
missed.
HEALD J.A.: I agree.
MACGLIIGAN J.A.: I agree.
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.