r v. Canada, 2012 FC 1411

[2013] 4 F.C.R. 455 IMM-6450-11 2012 FC 1411 Panchalingam Nagalingam (Applicant) v. The Minister of Public Safety and Emergency Preparedness (Respondent) Indexed as: Nagalingam v. Canada (Public Safety and Emergency Preparedness) Federal Court, Boivin J.—Toronto, October 2; Ottawa, December 3, 2012.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Judicial review of immigration officer’s decision toissue Immigration and Refugee Protection Act, s. 44(1) report stating applicant inadmissible on grounds of criminality under Act, s.36(2)(a) — Applicant Convention refugee, permanent resident convicted of various criminal offences — Ordered deported followingissuance of s. 44 report — Whether officer erring in law, breaching duty of procedural fairness by failing to take into accounthumanitarian and compassionate (H&

C) considerations, to give applicant opportunity to make submissions prior to issuing report —More restrictive approach to officer, Minister’s delegate’s discretion in considering mitigating or H&C factors at Act, s. 44 level is to befavoured — Officer’s decision herein consistent with case law on the matter — Procedural fairness not breached — Applicationdismissed. This was an application for judicial review of an immigration officer’s decision to issue a report, pursuant to subsection 44(1) of theImmigration and Refugee Protection Act, stating that there were reasonable grounds to believe that the applicant was inadmissible ongrounds of criminality under paragraph 36(2)(

a) of the Act. The applicant, Sri Lankan, was found to be a Convention refugee and later became a permanent resident. He was subsequently convictedof various criminal offences. The officer issued the above-mentioned report and, following a proceeding under subsection 44(2) of theAct, the applicant was ordered deported. At issue was whether the officer erred in law and breached the duty of procedural fairness by failing to take into account humanitarianand compassionate (H&

C) considerations and/or by failing to give the applicant an opportunity to make submissions prior to issuing thereport and directing the applicant to inquiry. Held, the application should be dismissed. Most of the case law examined favours the position that very little discretion is awarded to officers or the Minister’s delegates toconsider factors other than the factual basis of the inadmissibility finding. Indeed, a more restrictive approach to the discretion that anofficer or a Minister’s delegate has in considering mitigating or H&C factors at the

section 44 level is to be favoured. The fact that theMinister’s delegate would not consider H&C factors during this interview is consistent with the majority of the case law on this issue,including the Federal Court of Appeal’s decisions. Therefore, there was no breach in procedural fairness warranting intervention herein. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36, 37(1)(a), 44, 64(1), 72, 115(2)(b). Immigration and Refugee Protection Regulations, SOR/2002-227, s. 228. CASES CITED applied: Cha v.

Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409; Awed v. Canada (Minister of Citizenshipand Immigration), 2006 FC 469, 46 Admin. L.R. (4th) 233; Correia v. Canada (Minister of Citizenship and Immigration), 2004 FC 782,253 F.T.R. 153; Richter v. Canada (Minister of Citizenship and Immigration), 2008 FC 806, [2009] 1 F.C.R. 675, affd 2009 FCA 73;Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.). considered: Nagalingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1397; Nagalingam v.

Canada (Minister of Citizenship andImmigration), 2008 FCA 153, [2009] 2 F.C.R. 52; Nagalingam v. Canada (Citizenship and Immigration), 2012 FC 176, 253 C.R.R. (2d)310; Nagalingam v. Canada (Public Safety and Emergency Preparedness), 2012 FC 362, [2013] 4 F.C.R. 415; Nagalingam v. Canada(Public Safety and Emergency Preparedness), (I.R.B.); Monge Monge v. Canada (Minister of Public Safety andEmergency Preparedness), 2009 FC 809, [2010] 3 F.C.R. 291; Hernandez v. Canada (Minister of Citizenship and Immigration), 2005FC 429, [2006] 1 F.C.R. 3. referred to: Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Wajaras v. Canada (Citizenship and Immigration), 2009 FC 200; Bakerv. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193. APPLICATION for judicial review of an immigration officer’s decision to issue a report, pursuant to subsection 44(1) of the

Immigration and Refugee Protection Act , stating that there were reasonable grounds to believe that the applicant was inadmissible on grounds of criminality under paragraph 36(2) (

a) of the Act. Application dismissed. APPEARANCES Andrew J. Brouwer for applicant. Michael Butterfield and Nadine S. Silverman for respondent. SOLICITORS OF RECORD Refugee Law Office , Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by [ 1 ] Boivin J.: This is an application for judicial review pursuant to

section 72 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the Act) of a decision by the immigration officer (the officer), pursuant to subsection 44(1) of the Act, that determined that there were reasonable grounds to believe that Mr. Panchalingam Nagalingam (the applicant) is inadmissible under paragraph 36(2) (

a) of the Act. Factual Background [ 2 ] The applicant is a citizen of Sri Lanka and a Tamil. He arrived in Canada in August 1994. On March 2, 1995, he was found to be a Convention refugee and he became a permanent resident on March 13, 1997. [ 3 ] Between 1999 and 2001, the applicant was convicted of assault, failure to comply with a recognizance and mischief. Subsequently, the applicant was found to be inadmissible on grounds of organized criminality under paragraph 37(1) (

a) of the Act because of his membership in the AK Kannan Tamil gang. A deportation order was issued against him on May 28, 2003, by virtue of which he also lost his permanent resident status. The Federal Court dismissed his application for judicial review of the decision on his inadmissibility ( Nagalingam v. Canada (Minister of Citizenship and Immigration) , 2004 FC 1397 ). [ 4 ] Because the applicant had been found to be a Convention refugee, the Minister issued a danger opinion under paragraph 115(2) (

b) of the Act on October 4, 2005 and it was determined that the applicant should not be allowed to remain in Canada based on the nature and severity of the acts he committed. The applicant sought judicial review and applied for a stay to this Court, but the stay was dismissed. The applicant then sought an injunction from the Ontario Superior Court Justice which dismissed his application, relying partly on the assurance of the Minister that he would be allowed to return should his judicial review of the danger opinion be allowed. [ 5 ] The applicant was removed from Canada on December 5, 2005.

On April 24, 2008, the Federal Court of Appeal allowed the judicial review of the danger opinion and it was remitted back for redetermination ( Nagalingam v. Canada (Minister of Citizenship and Immigration) , 2008 FCA 153 , [2009] 2 F.C.R. 52). The applicant made a request to the Minister to allow him to return to Canada. While awaiting return to Canada, the applicant was allegedly kidnapped from his home in Colombo and tortured for more than two days. [ 6 ] The applicant returned to Canada on February 24, 2009 on a temporary resident permit.

Upon his return, he was initially detained but eventually released on strict terms and conditions. [ 7 ] The Minister had initiated a reconsideration of the paragraph 115(2) (

b) danger opinion prior to the applicant’s return to the country. When another danger opinion was issued on February 23, 2011, concluding that the applicant should not be allowed to remain in Canada based on the nature and severity of his acts and was to be removed between March 23 and March 26, 2011, the applicant filed two applications for leave and judicial review: one challenging the 2011 danger opinion, and the second seeking a declaration that the 2003 removal order was spent and of no remaining legal force.

In the meantime, the applicant filed motions to stay his removal and initiated a petition with the United Nations Committee Against Torture (UNCAT), which granted the interim measures and requested that the removal be deferred.

These interim measures were lifted when the Government of Canada successfully argued that the applicant’s petition was inadmissible because domestic remedies had not been exhausted—namely, the two judicial review applications. [ 8 ] Justice Russell of the Federal Court heard both applications in October 2011 and allowed the judicial review of the danger opinion for a breach in procedural fairness because the applicant was not allowed to cross-examine a detective who provided evidence ( Nagalingam v. Canada (Citizenship and Immigration) , 2012 FC 176 , 253 C.R.R. (2d) 310).

Justice Russell also allowed, in part, the judicial review of the 2003 removal order ( Nagalingam v. Canada (Public Safety and Emergency Preparedness) , 2012 FC 362 , [2013] 4 F.C.R. 415). Justice Russell held that “the 2003 [deportation] order … although valid when made, has now been executed and its force is spent.

Hence, it cannot now be used as the basis of any future deportation of the applicant and the Court prohibits the respondent from using the 2003 order to remove the applicant from Canada.” [ 9 ] On September 9, 2011, the officer issued a subsection 44(1) report stating that the applicant is inadmissible under paragraph 36(2) (

a) of the Act for reasons of criminality, on the basis of the failure to comply with a recognizance and mischief under $5 000 convictions in September 2000 and January 2001. The applicant was served with the report on September 9, 2011, along with a notice to appear for a subsection 44(2) proceeding. The applicant was not interviewed prior to the issuance of the report and direction to inquiry, and was not permitted to make submissions.

The interview was initially scheduled for September 13, 2011, but was postponed until September 16, 2011 at the applicant’s request. [ 10 ] The applicant was interviewed by a Minister’s delegate and a new deportation order was issued against him on September 16, 2011 under subsection 44(2) of the Act . His deportation was initially scheduled for September 29‒30, 2011. By letter dated September 23, 2011, the UNCAT informed the applicant’s counsel that it had reinstated the interim measures request.

[11] The applicant claims he would have raised several considerations if given the opportunity, namely: his rehabilitation over thepast decade; the time elapsed since the last offence and clear criminal record since (over 11 years); his compliance with house arrest; hisongoing efforts to obtain a pardon; his marriage to Nira Rajanayagam and their daughter Alena; the fact that he cares for his elderlyparents; his relationship to his family in Canada; the danger he faces in Sri Lanka and his Convention refugee status. [12] In a decision dated February 21, 2012 [Nagalingam v.

Canada (Public Safety and Emergency Preparedness), ], the IAD [Immigration Appeal Division] determined that it did not have jurisdiction under subsection 64(1) of the Act to hear theapplicant’s appeal of the deportation order because he has been found inadmissible on grounds of organized criminality. The IAD’sdecision is under review in a separate application before this Court (IMM-2411-12). The Impugned Decision [13] The applicant takes issue with the officer’s decision to issue the subsection 44(1) report.

The report, dated September 9, 2011,indicates that the applicant is a person who is a foreign national who has been authorized to enter Canada and who, in the officer’sopinion, is inadmissible pursuant to paragraph 36(2)(

a) of the Act for having been convicted in Canada of an offence under

an Act ofParliament punishable by way of indictment. The report states the following: Mr. Panchalingam Nagalingam was convicted on 25 September 2000 at Toronto of fail to comply contrary to subsection 145(3) of theCriminal Code of Canada and which is punishable by imprisonment for a term not exceeding two years. He was sentenced to 5 days jailand 3 days pre-sentence custody. In addition, Mr.

Panchalingam Nagalingam was convicted on 25 January 2001 at Toronto of two counts mischief under $5000 contraryto subsection 430(4) of the Criminal Code of Canada and which is punishable by imprisonment for a term not exceeding two years. Hewas sentenced to 45 days jail intermittent, 2 years probation, and 16 days pre-sentence custody.

Issue [14] The applicant submits the following issue: Did the officer err in law and breach the duty of procedural fairness by failing to takeinto account humanitarian and compassionate considerations and/or by failing to give the applicant an opportunity to make submissionson the issue prior to issuing the report and directing the applicant to inquiry? Legislative provisions [15] The following provisions of the Immigration and Refugee Protection Act are relevant to the present case:

Part 1 Immigration to Canada … Division 4 Inadmissibility … Seriouscriminality36.

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … Criminality(2) A foreign national is inadmissible on grounds of criminality for (

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by way of indictment, or of twooffences under any Act of Parliament not arising out of a single occurrence; … Application(3) The following provisions govern subsections (1) and (2): (

a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, evenif it has been prosecuted summarily; (

b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspensionhas been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of whichthere has been a final determination of an acquittal; … Division 5 Loss of Status and Removal Report on Inadmissibility

Preparation of report 44.

(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. Referral or removal order

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under

section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. Conditions

(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order. [ 16 ] Furthermore, the following provision from the Immigration and Refugee Protection Regulations , SOR/2002-227 is also relevant since it establishes that, in the applicant’s case, the Minister’s delegate does not refer the report to the Immigration Division but instead produces the removal order, in this case a deportation order, him or herself: Division 2 Specified Removal Order Subsection 44(2) of the Act — foreign nationals 228.

(1) For the purposes of subsection 44(2) of the Act , and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be (

a) if the foreign national is inadmissible under paragraph 36(1) (

a) or (2) (

a) of the Act on grounds of serious criminality or criminality, a deportation order; Standard of review [ 17 ] The issue submitted before this Court concerns a potential breach of procedural fairness. It is therefore reviewable on a standard of correctness ( Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190; Cha v. Canada (Minister of Citizenship and Immigration) , 2006 FCA 126 , [2007] 1 F.C.R. 409 ( Cha ), at paragraph 16 ).

Arguments Applicant’s Position [ 18 ] The applicant argues that the officer erred in law by not considering all relevant circumstances and failing to give him the opportunity to provide submissions on why a subsection 44(1) report should not be written and referred to a Minister’s delegate for decision. [ 19 ] The applicant relies heavily on Justice Harrington’s

summary and analysis of relevant case law and factors as set out in Monge Monge v. Canada (Minister of Public Safety and Emergency Preparedness) , 2009 FC 809 , [2010] 3 F.C.R. 291 ( AMM ), at paragraphs 18‒31 .

AMM discusses the matters of the discretion available to enforcement officers whether to issue (or not) a subsection 44(1) report, the level of procedural fairness required with regards to such reports and what factors need to be considered by enforcement officers when authoring such reports. [ 20 ] The applicant submits that in AMM , as well as in many of the cases reviewed in AMM , a narrative report had been produced by the officer setting out the circumstances of the case and factors taken into consideration.

The applicant concedes that, when such narrative reports were argued to be inadequate in other cases, the Court generally refused to intervene. However, he argues that his case is different because: (

i) he was not interviewed in connection with the preparation of the report; (ii) no narrative report was produced; (iii) he is a Convention refugee; (iv) when drafting the report, the Minister believed he was in a position to effect removal immediately because there was no stay in place yet; (

v) the Minister was of the opinion that the Immigration Appeal Division (the IAD) had no jurisdiction to hear an appeal where humanitarian and compassionate (H&

C) grounds could be raised; (vi) there are numerous relevant consideration in the applicant’s case that should have been taken into consideration. [ 21 ] The applicant further submits that refugees are entitled to a higher level of procedural fairness than visitors (citing Justice Décary in Cha , above). He argues that, when Justice Mosley held in Awed v. Canada (Minister of Citizenship and Immigration) , 2006 FC 469 , 46 Admin L.R. (4th) 233 ( Awed ) that this does not mean that refugees are entitled to expect more participation or discretion in the

section 44 context than other foreign nationals, he was relying on the fact that refugees can appeal to the IAD where they can raise H&C considerations, a right the applicant may not have in this case. [ 22 ] The applicant submits that the Federal Court jurisprudence on the topic is divergent, and the Federal Court of Appeal’s decision in Cha , above, is ambiguous with regards to the existence of discretion. Respondent’s Position [ 23 ] The respondent submits that the officer’s discretion not to issue a subsection 44(1) report when the individual has breached the relevant sections of the Act is limited.

He cites Correia v. Canada (Minister of Citizenship and Immigration) , 2004 FC 782 , 253 F.T.R. 153 ( Correia ) in support of the idea that the decision to make such reports must be considered in the context of Division 5 of the Act, which has as its purpose the removal of certain persons from Canada. He submits that the officer’s inquiry is restricted to relevant facts, and not H&C matters nor the applicant’s rehabilitation. The respondent also refers to Richter v.

Canada (Minister of Citizenship and Immigration) , 2008 FC 806 , [2009] 1 F.C.R. 675 ( Richter ), affd 2009 FCA 73 to indicate that the discretion not to report is extremely limited and that the purpose of the interview under subsection 44(1) is merely to confirm the factual information that supports the

opinion of the officer. [24] The respondent also relies on Cha, above, at paragraphs 33, 35 and 37, where the Federal Court of Appeal held that an officer isexpected to prepare a report under subsection 44(1) unless a pardon has been granted or the convictions reversed.

Furthermore, it isargued that Cha stands for the notion that a reading of sections 36 and 44 of the Act indicates that officers and the Minister’s delegatesare only on a fact-finding mission and are not to consider particular circumstances—it is not the officer’s function to deal with H&Cmatters or other matters relevant to a pre-removal risk assessment. [25] The respondent submits that in the case of AMM, above, the Court did not answer whether there was a discretion or not on thepart of the officer to issue the report.

The respondent further submits that even when there was no detailed assessment, the Court did notintervene. [26] Finally, the respondent also submits that the applicant can present mitigating factors at the subsection 44(2) stage before theMinister’s delegate (citing Wajaras v. Canada (Citizenship and Immigration), 2009 FC 200).

Analysis [27] At the outset, the Court recalls the wording of subsection 44(1) of the Act: “An officer who is of the opinion that a permanentresident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall betransmitted to the Minister” (emphasis added). [28] The wording indicates that a certain discretion is awarded to the officer.

Justice Décary’s words in Cha, above, at paragraph 19,indicated that the level of discretion an officer has will depend on whether the case deals with foreign nationals or permanent residents,the various possible grounds for inadmissibility (and the varying level of complexity of the underlying facts, depending on the grounds),and whether the Minister’s delegate issues the deportation order him or herself or refers it to the Immigration Division instead (Cha,above, at paragraph 22). [29] At the hearing before this Court, the applicant relied heavily on Hernandez v.

Canada (Minister of Citizenship and Immigration),2005 FC 429, [2006] 1 F.C.R. 3 (Hernandez), at paragraph 31, which lends support to the applicant’s contention that certain factorsshould have been considered for the subsection 44(1) report. [30] In Hernandez, above, Justice Snider interpreted the judgment in Correia, above, not to mean that immigration officers wereprecluded from considering anything beyond the conviction itself, but rather that the facts considered must relate to the criminalconviction. Justice Snider concluded by analysing the factors set out in Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, and held that the duty of fairness in such cases was more relaxed, being administrative innature, and did not always require an oral interview, but that at the very least, the applicant should be given the opportunity to makesubmissions and know the case against him. [31] However, the Court notes that the remainder of the jurisprudence that was examined in AMM, above, generally favours therespondent’s point of view that very little discretion is awarded to officers or the Minister’s delegates to consider factors other than thefactual basis of the inadmissibility finding.

In support for this proposition, the Court recalls the following excerpt from Cha, above, atparagraph 37, where Justice Décary of the Federal Court of Appeal stated that the intent of Parliament is clear and observed thefollowing: It cannot be, in my view, that Parliament would have in sections 36 and 44 of the Act spent so much effort defining objectivecircumstances in which persons who commit certain well-defined offences in Canada are to be removed, to then grant the immigrationofficer or the Minister’s delegate the option to keep these persons in Canada for reasons other than those contemplated by the Act andthe Regulations.

It is not the function of the immigration officer, when deciding whether or not to prepare a report on inadmissibilitybased on paragraph 36(2)(

a) grounds, or the function of the Minister’s delegate when he acts on a report, to deal with matters describedin sections 25 (H&C considerations) and 112 (pre-removal risk assessment) of the Act. [Citations omitted.] [32] In the case of Awed, above, which concerned a foreign national who was also a Convention refugee, Justice Mosley held thefollowing at paragraph 17 when applying the Federal Court of Appeal’s judgment in Cha: I find no support in Cha for the applicant’s contention that foreign nationals who are also protected persons and who have beenconvicted of the predicate crimes described in

section 36 of the Act, are entitled to a higher degree of procedural fairness or participatoryrights with respect to the operation of subsection 44(1) than other foreign nationals or permanent residents. [33] Hence, Justice Mosley viewed the interview under subsection 44(1) simply as a means to confirm the facts underlying thefinding of inadmissibility with a minimal content of duty of fairness. Two years later, in Richter v.

Canada (Minister of Citizenship andImmigration), 2008 FC 806, [2009] 1 F.C.R. 675 [cited above], Justice Mosley reiterated his conclusions expressed in Awed, above.Justice Mosley’s decision in Richter was appealed and the Federal Court of Appeal confirmed the decision and substantially adopted hisreasoning and mentioned that the scope and content of the duty will vary depending on the circumstances of each case (Richter v.Canada (Minister of Citizenship and Immigration), 2009 FCA 73 [cited above], at paragraph 10). [34] The Court is therefore of the view that the jurisprudence favours a more restrictive approach to the discretion that an officer or aMinister’s delegate has in considering mitigating or H&C factors at the

section 44 level (Cha, above; Awed, above; Richter, above;Correia, above). [35] Based on the jurisprudence noted above and the circumstances of this case, the Court cannot conclude that the duty of fairness ina case like this one requires the officer to allow for submissions prior to the issuance of a subsection 44(1) report, or that the officershould, or even could, consider humanitarian and compassionate grounds.

The fact that the Minister’s delegate would not consider H&Cfactors during this interview is consistent with the majority of the jurisprudence on this issue, and consistent with the Federal Court ofAppeal’s decisions. Therefore, the Court finds no breach in procedural fairness that warrants its intervention.

[ 36 ] The application for judicial review will therefore be dismissed. [ 37 ] The applicant proposed the following three alternative ways of formulating a question to be certified: (

i) In the preparation of a report under subsection 44(1) of the Act in respect of a protected person, does the duty of procedural fairness require that the officer provide an opportunity for the person concerned to make submissions and/or provide evidence? or, (ii) What is the scope of discretion available to an enforcement officer in deciding whether to prepare, and in preparing, a subsection 44(1) report regarding a protected person? or, (iii) What is the duty of fairness owed to a protected person by an enforcement officer in deciding whether to prepare, and in preparing, a subsection 44(1) report? [ 38 ] The Federal Court of Appeal stated the necessary criteria for certifying a question of general importance in Liyanagamage v.

Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 . The proposed questions must transcend the interests of the immediate parties to the litigation, contemplate issues of broad significance or general application and be determinative of the appeal. [ 39 ] In the Court’s view, the questions formulated by the applicant do not satisfy these criteria: the proposed questions for certification have been considered or settled by the Federal Court of Appeal. JUDGMENT THIS COURT’S JUDGMENT is that: 1. The application for judicial review is dismissed; 2. No questions for certification; 3.

A copy of the reasons for judgment and judgment is to be placed in file IMM-2411-12.