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Immigration - Admissibility Hearing [IRPA s.44]. Obazughanmwen v. Canada (Public Safety and Emergency Preparedness)
In Obazughanmwen v. Canada (Public Safety and Emergency Preparedness) (Fed CA, 2023) the Federal Court of Appeal considers an appeal of a JR against an IRPA s.44(2) ['Referral or removal order'] referral for an admissibility hearing (made by a 'Minister's delegate') on grounds of IRPA s.36(1)(a) (serious criminality) and s.37(1)(a) (organized criminality).
The primary issues were - given that this s.44(2) 'referral' process was largely one of 'screening' - whether a JR (which is discretionary) is premature in light of other remedies that the appellant/applicant had:[14] Before the Federal Court, the appellant argued that the two referrals should be set aside and remanded for reconsideration with a more robust consideration of H&C and BIOC factors in deciding if the reports should be referred to the ID for an admissibility hearing. The appellant emphasized that there is no other forum or procedural step at which these considerations can be studied when a finding of inadmissibility is made under section 37. Indeed, no appeal lies to the Immigration Appeal Division (IAD), and since the passage of the Faster Removal of Foreign Criminals Act, a finding of inadmissibility pursuant to section 37 precludes the filing of an application for permanent residence on humanitarian and compassionate grounds. The appellant further contended that the H&C bar infringes his rights under sections 7 and 12 of the Charter. The present court summarized the Federal Court (below) position on the JR:[18] As for the potential violation of sections 7 and 12 of the Charter, the Court agreed that a section 37 finding of inadmissibility has serious consequences since the appellant would have no access to H&C relief. His only available statutory relief would be a restricted Pre-Removal Risk Assessment (PRRA) pursuant to subsections 112(3) and 113(d) of the IRPA or a ministerial relief application under section 42.1, neither of which would allow a consideration of H&C circumstances or BIOC factors. This, however, was a policy decision by Parliament. As for the fact that a section 37 finding of inadmissibility would bar an appeal to the IAD by operation of section 64 of the IRPA, the Court observed that the appellant would have no appeal to the IAD under a section 36 referral in any event, since subsections 64(1) and (2) of the IRPA take away that right from those sentenced to more than six months, as was the case for the appellant.
[19] The Federal Court also gave additional reasons why it should decline to intervene at this stage. First, it noted that the ID is able to address the appellant’s arguments that a paragraph 37(1)(a) inadmissibility finding is contrary to the Charter to the extent that it precludes H&C and BIOC relief. In support of that proposition, the Court cited jurisprudence that the ID is authorized to grant Charter relief (Torres Victoria v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1392 (Torres)). Such a decision by the ID would itself be subject to judicial review.
[20] If the appellant is ordered removed under paragraph 37(1)(a), he will also have other avenues of potential mitigation, such as a restricted PRRA, a request to defer which might result in a short-term stay of removal, an Exceptional Temporary Resident Permit under section 24, and ministerial relief under section 42.1 of the IRPA. The Federal Court of Appeal stated it's conclusion on the screening role at s.44(2) and the related JR prematurity:[29] I agree with the respondent that the certified question has been addressed in a number of cases both prior to and after 2013 and has been put to rest. In cases such as Correia v. Canada (Minister of Citizenship and Immigration), 2004 FC 782, Hernandez v. Canada (Minister of Citizenship and Immigration), 2005 FC 429, Canada (Minister of Public Safety and Emergency Preparedness) v. Cha, 2006 FCA 126 (Cha), Awed v. Canada (Citizenship and Immigration), 2006 FC 469 and Faci v. Canada (Pubic Safety and Emergency Preparedness), 2011 FC 693, all referred to by the appellant, the “overall consensus seems to coalesce” (to use the words of counsel for the respondent) around the principles that CBSA officers and MDs had very limited discretion, and that there was no general obligation to consider H&C factors nor to explain why they were not considered sufficient to offset other factors supporting a decision to refer a case for an admissibility hearing.
[30] When reviewed carefully, this case law demonstrates that CBSA officers and MDs have limited discretion because of the restricted nature of the inquiry they are tasked to perform, and that they are performing a purely administrative and screening function. I accept, as suggested by the appellant, that this jurisprudence sometimes refers to the fact that there are other opportunities to raise H&C considerations at later stages of the process; but when this was suggested in the jurisprudence, it was mostly as a contextual factor to assess the appropriate level of procedural fairness required.
[31] The decision of this Court in Cha is illustrative of the rationale in support of a limited discretion conferred on officers and MDs by subsection 44(1) and (2):[35] I conclude that the wording of sections 36 and 44 of the Act and of the applicable sections of the Regulations does not allow immigration officers and Minister’s delegates, in making findings of inadmissibility under subsections 44(1) and (2) of the Act in respect of persons convicted of serious or simple offences in Canada, any room to manoeuvre apart from that expressly carved out in the Act and the Regulations. Immigration officers and Minister’s delegates are simply on a fact-finding mission, no more, no less. Particular circumstances of the person, the offence, the conviction and the sentence are beyond their reach. It is their respective responsibility, when they find a person to be inadmissible on grounds of serious or simple criminality, to prepare a report and to act on it.
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[37] It cannot be, in my view, that Parliament would have in sections 36 and 44 of the Act spent so much effort defining objective circumstances in which persons who commit certain well defined offences in Canada are to be removed, to then grant the immigration officer or the Minister’s delegate the option to keep these persons in Canada for reasons other than those contemplated by the Act and the Regulations. It is not the function of the immigration officer, when deciding whether or not to prepare a report on inadmissibility based on paragraph 36(2)(a) grounds, or the function of the Minister’s delegate when he acts on a report, to deal with matters described in sections 25 (H&C considerations) and 112 (Pre-Removal Assessment Risk) of the Act (see Correia at paragraphs 20 and 21; Leong at paragraph 21; Kim at paragraph 65; Lasin v. Canada (Minister of Citizenship and Immigration), [2005] FC 1356 at paragraph 18). [32] These principles, emanating from the pre-2013 jurisprudence, have not been displaced by the 2013 legislative scheme. In 2016, for example, this Court reiterated the limited discretion of CBSA officers and MDs in Sharma, and stated that “officers and the Minister or his delegate must always be mindful of Parliament’s intention to make security a top priority (see paragraphs 3(1)(h) and (i) of IRPA)” (Sharma at para. 23). The Court went on to add that the rationale offered in Cha at paragraph 37 with respect to foreign nationals applies with equal force to permanent residents.
[33] Then, in 2018, Chief Justice Crampton of the Federal Court similarly found that it was not unreasonable for a CBSA officer and for a Minister Delegate to refer a permanent resident to an admissibility hearing for serious criminality without considering the H&C factors to which the applicant referred in his submissions. After a careful review of the relevant jurisprudence, Chief Justice Crampton noted that there was a conflict as to whether CBSA officers and MDs have any discretion when acting pursuant to subsections 44(1) and (2), and expressed the view that in any event, any discretion to consider H&C factors under these subsections with respect to criminality or serious criminality is “very limited, if it exists at all”, and that there is no general obligation to do so (McAlpin v. Canada (Public Safety and Emergency Preparedness), 2018 FC 422 at para. 70). Those principles were later reiterated by the Federal Court in Melendez v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1131 (at paras. 31-34) and in Surgeon (at paras. 4, 10).
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[37] The case law, going back to Cha, is replete with statements emphasizing that the referral process at section 44 of the IRPA is only meant to look into readily and objectively ascertainable facts concerning admissibility, and not to adjudicate controversial and complex issues of law and evidence. As courts often repeated, it is a screening exercise and not an adjudicative process of the kind performed by the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board. This point was most recently reiterated by Justice Barnes in Lin FC at para. 16:Neither the Officer nor the Delegate is authorized or required to make findings of fact or law. They conduct a summary review of the record before them on the strength of which they express non-binding opinions about potential inadmissibility. This is no more than a screening exercise that triggers an adjudication. It is at the adjudicative stage where controversial issues of law and evidence can be assessed and resolved. As the Federal Court of Appeal held in Canada (Minister of Public Safety and Emergency Preparedness) v Cha, 2006 FCA 126 at paras 47 and 48, [2007] 1 FCR 409, the referral process is intended only to assess readily and objectively ascertainable facts concerning admissibility. It does not call for a long and detailed assessment of issues that can be properly assessed and fully resolved in later proceedings. To the extent that there is any discretion not to make a referral to the ID, it is up to the Officer and the Delegate to determine how that will be exercised and what evidence will be applied to the task.
(emphasis in original) [38] This Court confirmed that decision (Lin FCA), and emphasized in brief reasons that “[t[he process [under section 44] is akin to a screening exercise in that there is no finding of inadmissibility, nor alteration of status” (at para. 4). As a result, both Courts stated that it is for the ID to make an admissibility determination, followed in some cases (which do not include serious criminality or organized criminality) by a de novo appeal to the IAD where a full H&C review may be entertained.
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[46] I also find that the appellant is not entirely deprived of other recourses before being removed if he is found inadmissible. As noted by the Federal Court, a removal order cannot be enforced until after the person concerned has had an opportunity to apply to remain in Canada through a PRRA under sections 112 and 113 of the IRPA. As part of that assessment, an officer will consider risk in the country of return, including whether the applicant’s removal to their country of nationality would subject them to a risk of torture, risk to their life, or risk of cruel and unusual treatment or punishment.
[47] Pursuant to section 48 of the IRPA, an enforceable removal order must be effected “as soon as possible”. Nevertheless, the person concerned may request that removal be deferred and the CBSA retains a limited discretion to defer removal. Depending on the circumstances, the CBSA may consider illness or other impediments to removal, the short-term best interests of children, or the existence of pending immigration applications that were made on a timely basis: Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81 at paras. 49-51; Lewis at paras. 55, 58. Finally, the appellant could seek an Exceptional Temporary Resident Permit under section 24, and ministerial relief under section 42.1 of the IRPA. And of course, all of these decisions would be subject to judicial review in the Federal Court.
[48] If the appellant is of the view, as he seems to be, that preventing him from raising issues of H&C and BIOC before the ID or in a separate H&C application is in breach of his sections 7 and 12 Charter rights, the proper way to challenge the impugned provisions of the Faster Removal of Foreign Criminals Act is not to raise those issues for the first time before the Federal Court. Rather, they should be put first to the ID at the time of an admissibility hearing for two related reasons.
[49] First, the Immigration Division is well equipped to handle complex issues. It provides for a full evidence-based hearing with representation by counsel in a quasi-judicial setting. It is well established that constitutional issues, and particularly Charter issues, should only be decided on the basis of a full evidentiary record, and with the benefit of an informed decision by the administrative tribunal endowed with the jurisdiction to make findings of fact and law. Administrative tribunals are in the best position to hear and decide the constitutionality of the statutory provisions they are tasked to apply. As Justice La Forest stated on behalf of the majority in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5 (at para. 16):It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical (…) The informed view of the Board, as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance.
Quoted with approval by Mr. Justice Gonthier, for a unanimous Court, in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at para. 30, [2003] 2 SCR 504. [50] This reasoning is all the more compelling in the context of an application for judicial review, where the role of a reviewing court is to assess the reasonableness (and in some cases, the correctness) of the Immigration Division’s decision. Courts benefit immensely from the expertise of administrative decision-makers, and from a full evidentiary and factual record that will inform their decisions. Decisions of a constitutional nature, because of their nature and precedential value, should not be taken in a vacuum.
[51] Closely related to this first rationale supporting an initial decision by the ID is the notion that judicial review is a last resort remedy, which should only be brought once all available and adequate administrative remedies have been exhausted. This principle has been most forcefully and eloquently set out by this Court in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61(C.B. Powell) and, in the immigration context, in Sidhu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 260, cited with approval by this Court in Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288. It has most recently been reiterated in Lin FCA at para. 5. This principle also finds its expression in subsection 72(2) of the IRPA, which states that an application for judicial review may not be made to the Federal Court “until any right of appeal that may be provided by this Act is exhausted”.
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