Date: 20030626
Docket: IMM-4535-02
Citation: 2003 FCT 803
Quebec, Quebec, June 26, 2003
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
MOSEYAB NAZARI NOKHODCHARI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration Appeal Division [the IAD] of the Immigration and Refugee Board [the Board], dated August 14, 2002, wherein it was decided that Moseyab Nazari Nokhodchari [the Applicant] is a person within sections 64(1) and 196 of the Immigration and Refugee Protection Act [the IRPA] who had not been granted a stay of his deportation order under the Immigration Act [the former Act] by June 28, 2002, and had therefore lost his appeal to the IAD by operation of law.
FACTS
[2] The Applicant is an Iranian citizen who was born in Tehran on May 23, 1955.
[3] On November 4, 1993, the Applicant arrived at Toronto's Pearson International Airport. Thereupon, he claimed refugee status on the grounds of "a well-founded fear of persecution in Iran, for reasons of his actual political opinion, as manifested in his activities with the People's Mujaheddin Organization of Iran, including its national liberation army, which opinion clashes with that of the fundamentalist Islamic government of Iran". The Applicant feared "agents of persecution directly employed by the Iranian government", and was therefore unwilling to avail himself of the protection of his country of nationality. The Applicant submitted that the form of persecution that awaited him upon his return to Iran was execution. (Applicant's Record, tab 3, page 69)
[4] On April 29, 1994, the Applicant was granted Convention refugee status. On May 27, 1994, the Applicant applied for permanent resident status.
[5] On September 6, 2000, a Report pursuant to section 27 of the former Act was written alleging that the Applicant is a member of an inadmissible class. A Direction for Inquiry was issued on September 8, 2000. The Inquiry was postponed while the Applicant sought the opinion of the Minister of Citizenship and Immigration [the Minister] that his admission to Canada would not be detrimental to the national interest. The Minister issued an opinion on July 12, 2001 that she was not satisfied that the Applicant's admission to Canada would not be detrimental to the national interest.
[6] On June 26, 2002, the Board, under the pen of Adjudicator Marc Tessler, found the Applicant to be inadmissible under paragraph 19(1)(f)(iii)(b) of the former Act, as a person who there are reasonable grounds to believe is or was engaged in terrorism, for the following reasons:
- In the fall of 1980, the Applicant became a supporter of the People's Mujaheddin Organization of Iran [the Mujaheddin];
- The Applicant participated in meetings and demonstrations, and collected donations for the organization;
- He suspended his activities with the Mujaheddin in 1981;
- Because of his personal sufferings and those of the people around him, the Applicant affiliated himself with the Mujaheddin's national liberation army which was forming in Iraq: in around June 1986, he spoke under his real name on Mujaheddin "voice" radio and television broadcasts which were heard and seen in Iran; he was involved in armed combat against the Iranian army, in both offensive and defensive operations;
- In January 1991, while in Iraq, he informed the Mujaheddin that he was leaving the organization, which he did on good terms;
- The Applicant was found to be a member of the Mujaheddin during one of its most active period of terrorist activity, although there is no information to suggest that he was personally involved in any acts of violence in this period;
- The Board found that actual participation in terrorist acts is an unnecessary element, since in paragraph 19(1)(f)(iii)(b) of the former Act, mere membership is the central requirement.
On that same day, a deportation order was issued by Mr. Tessler.
[7] On June 27, 2002, the Applicant filed an appeal to the IAD. On June 28, 2002, the IRPA came into force.
[8] On August 14, 2002, Case Management Officer M.J. Mbaruk of the IAD informed the Applicant that as a result of the changes in the legislation, his appeal was discontinued under section 196 of the IRPA and his file was therefore closed. The latter decision is the object of the present application for judicial review.
ISSUES
[9] 1. Did the IAD err in law in concluding that section 196 of the IRPA had the effect of extinguishing the Applicant's appeal rights under section 192 of the IRPA?
2. Is section 7 of the Charter engaged on the facts of this case and, if so, did the dismissal of the Applicant's appeal result in a breach of the principles of fundamental justice provided therein?
ANALYSIS
[10] Both parties referred to Snider J.'s recent decision of Olga Medovarski v. MCI, 2003 FCT 634 [Medovarski]. I have carefully reviewed both that decision and the material provided by the parties.
[11] While some elements of the case at bar are similar to those of Medovarski, supra, substantial differences remain. Snider J. held:
[para. 29] I do not disagree with the analysis of the Respondent as to the intent of the legislative scheme as a whole; there is a clear intent to limit the rights of convicted criminals. Paragraph 3(1)(I) could not be clearer when it states that an objective of the IRPA is to deny "access to Canadian territory to persons who are criminals". However, what this analysis avoids is any discussion of three important factors that I view as significant in the determination of this issue:
1. the provision in question is part of the transitional provisions of the IRPA;
2. the parties' behaviour, prior to the coming into force of the IRPA was not consistent with the Respondent's interpretation; and
3. the Applicant held special or "vested" rights.
[12] In fact, Snider J. clearly mentioned at the beginning of her decision that she does not disagree with the analysis of the Respondent as to the intent of the legislative scheme as a whole, which is "a clear intent to limit the rights of convicted criminals". [emphasis added]
[13] Later, in the same paragraph, she seems to explain that this clear intent described in paragraph 3(1)(I) of the IRPA should be assessed in light of three important factors, listed at the end of the above paragraph.
[14] The first factor, on which I have no particular comment, is that the provision in question is part of the transitional provisions of the IRPA.
[15] The third factor mentioned is that "the Applicant held special or "vested" rights ". The Respondent suggests that there is no such vested right of appeal in the law and relies on the decision of Athwal v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 489, [1997] F.C.J. No. 1183 [Athwal], wherein Robertson J.A. held:
[para. 12] The transitional provision anticipates situations in which an adjudicator had made a deportation order pursuant to sections 27 and 32 of the Act and an appeal was then filed with the IAD prior to paragraph 70(5)( c) coming into effect on July 10, 1995. [I note that the Motions Judge stated in error that the relevant date is July 10, 1996.] In such circumstances, a person does not have a vested right of appeal unless the hearing of their appeal has commenced on or before that date.
[16] From my understanding of the Federal Court of Appeal's decision, to arrive at the conclusion that the Applicant's right of appeal is vested, this Court must be convinced that the hearing of his appeal had commenced on or before June 28, 2002; such is not the evidence before the Court.
[17] The second factor referred to by Snider J. is the parties' behaviour. She held that even though the IRPA came into effect on June 28, 2002, it received Royal Assent on November 1, 2001. Snider J. further held that both parties were aware of its provisions for a significant period of time prior to its coming into force.
[18] In Medovarski, supra, the appeal was made in November 2001, after the IRPA receiving Royal Assent and on April 24, 2002, the Applicant received a Notice to Appear stating that her appeal would be heard on September 26, 2002. Snider J. concluded that a reasonable explanation for the parties' behaviour was that the Respondent was interpreting section 196 of the IRPA as not applicable to the Applicant.
[19] Now, if we turn to our case, the hearing was held on June 18, 2002, which is ten days before the coming into force of the IRPA. Counsel for the Applicant submitted:
COUNSEL: So those are my submissions. I would ask that - I understand that you have a lot of evidence before you. However, we have a new Act coming in June 28th. If a negative decision is rendered and Mr. Nazari does not file his appeal - Notice of Appeal before that time, he will be precluded under the IRPA from appealing whatsoever, based on this section.
ADJUDICATOR: Are there not transitional provisions?
COUNSEL: The transitional provisions essentially state that you're okay if you filed a Notice of Appeal before June 28th. If you don't, where there's allegations of terrorism, you're out of luck. So under the circumstances, we'd ask that you keep that in mind with respect to the timing of any decision that you make.
ADJUDICATOR: Okay. Well, then - okay. Anything further? Mr. Tucci, did you wish to reply?
[20] Later in the transcript, at page 29, the Adjudicator held:
Oh, okay. I'm going to adjourn the matter for a decision. I understand the concern about the new legislation. I'm not sure that I can provide you with reasons before the 28th; however, I may be able to provide you with a decision, and if the decision is not in your client's favour, then I can issue the removal order and you can file the appeal, but you may have to wait for the reasons.
[21] In his decision dated June 26, 2002, the Board ordered the deportation from Canada of the Applicant. The last paragraph of that decision reads:
As a person determined to be a Convention Refugee in Canada Mr. Nazari Nokhodchari may have a right of appeal to the Immigration Appeal Division. A Notice of Appeal form has been included with this decision which should be returned to the Immigration and Refugee Board as soon as possible.
[emphasis added]
[22] The day after, on June 27, the Applicant filed an appeal and the IRPA came into force on June 28, 2002. Even though the clock was ticking in both cases, I find that there is a difference in the parties' behaviour. In the case at bar, the period was very limited. It seems that the Board rendered a decision two days before the coming into force date (June 28, 2002), stating that a right of appeal may exist. In itself, such is not enough to confer a right of appeal.
[23] In this case, no date had yet been fixed for the hearing nor was there a time-frame within which the parties were inactive, particularly the Respondent, as was the case in Medovarski, supra.
[24] Given that only the appeal had been filed, and if we rely on the criteria established in Athwal, supra, it is difficult for me to conclude that the hearing of the Applicant's appeal had commenced. As mentioned in Medovarski, supra:
[para. 34] It should be pointed out that this does not, in any way, affect the operation of the non-transitional provisions or the objectives of the IRPA as a whole. Nor does it mean that Parliament could not have removed the right of appeal to the IAD: however, if Parliament wishes to remove that right, it must do so in the clearest of terms.
[25] I totally agree with that statement. Indeed, Parliament is entitled to remove the right of appeal to the IAD. Section 192 provides as follows:
| 192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
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[26] Section 196 of the IRPA provides an exception to section 192. It reads:
| 196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act. |
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196. Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi. |
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[27] Section 64 of the IRPA refers to situation where no appeal can be made:
| 64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. |
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64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant. |
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[28] Those three sections have to be read in conjunction. Section 192 provides for the right of appeal to continue under the former Act, but section 196 clearly provides that, "despite section 192" an appeal shall be discontinued if the appellant has not been granted a stay because of section 64, which prohibits a stay in the Applicant's case. [emphasis added] These provisions are very clear.
[29] One can agree or disagree with Parliament's intention of including such provisions which could be seen as depriving someone of a right. Nevertheless, I am convinced that the Federal Court of Appeal has resolved this question in Athwal, supra. In Medovarski, supra, it was held:
[para. 48] Accordingly, I conclude that the word "stay" in section 196 of the IRPA contemplates a stay that came into effect as a result of the operation of paragraph 49(1)(b) of the former Act. My decision in this case does not establish whether Parliament could, through legislative amendments, remove the right of appeal from the Applicant and others in her position; it only determines that Parliament did not do so for this Applicant.
[30] From my understanding of the above comment, Snider J. did not determine that section 196 of the IRPA has no application and that Parliament can never remove a right of appeal. Indeed, it seems to me that she recognized that her interpretation of section 196 did not remove the right of appeal in the case before her, but that her conclusion could vary under different circumstances. In my view, the matter before me is one such case where Parliament clearly removed the Applicant's right of appeal.
[31] The Applicant raised a Charter argument, alleging that section 7 is engaged when a statutory appeal is removed. Section 7 of the Charter provides as follows:
| Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
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Chacun a droit à la vie, à la liberté, à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale. |
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[32] In a nutshell, the Applicant suggests that having been "stripped of his two appeals", he has grounds to raise a section 7 Charter issue. The Applicant submits that "section 7 rights are engaged in Appeal proceedings in which a deportation order against him [the Applicant] is in issue where the risk exists he can be deported back to his country of persecution".
[33] As was suggested by both parties, a section 7 analysis is a two-step process. Before considering whether the Applicant's section 7 rights have been infringed not in accordance with the principles of fundamental justice, it should first be established that the statutory removal of his appeal falls within the ambit of section 7 of the Charter. Accordingly, before considering section 7, we should first find that the right to life, liberty or security of a person has been deprived. If that is not the case, it is not necessary to go on with the assessment.
[34] In R. v. Beare, [1988] 2 S.C.R. 387, at page 401, La Forest J. held:
Section 7 of the Charter
The analysis of s. 7 of the Charter involves two steps. To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that that deprivation is contrary to the principles of fundamental justice. Like other provisions of the Charter, s. 7 must be construed in light of the interests it was meant to protect. It should be given a generous interpretation, but it is important not to overshoot the actual purpose of the right in question; see R. V. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.
[35] In the case at bar, I agree with the Respondent that the issue is not whether deportation engages section 7 of the Charter, but rather whether the statutory removal of an appeal to the IAD engages section 7. In Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.) at page 665, the Federal Court of Appeal held:
Firstly, for the reasons set out above I am not prepared to assume that an opinion given under subsection 70(5) should be seen as the equivalent of a deportation order. At worst it replaces an appeal on law and facts with judicial review, substitutes the Minister's humanitarian discretion for that of the Appeal Division, and substitutes the possibility of a judicial stay of deportation for the certainty of a statutory stay.
Secondly, even accepting the Motions Judge's premise that it is the Minister's opinion which causes the removal of Williams, I am not persuaded that this engages a "liberty" or "security of the person" interest under section 7 of the Charter.
It is necessary to distinguish this case from those such as Singh et al. v. Minister of Employment and Immigration in which three of the six judges held section 7 to be engaged in the disposition of a refugee claim. Fundamental to that opinion was the consideration that refugee claimants potentially face removal to countries where, they allege, they would be in danger of death or imprisonment. In the present case, there is no suggestion that Williams cannot return safely to Jamaica even though he would prefer not to.
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Without purporting to decide the question in respect to refugees, I have difficulty understanding how the refusal of a discretionary exemption from a lawful deportation order, as applied to a non-refugee who has no legal right to be in the country, must be seen as involving a deprivation of liberty. Unless "liberty" is taken to include the freedom to be anywhere one wishes, regardless of the law, how can it be "deprived" by the lawful execution of a removal order?
[36] As it was mentioned at the hearing, the Respondent accepts that section 7 interests may be engaged at the time of removal in certain factual circumstances, such as the removal of a person to a country where that person has established a prima facie case that he or she will be subject to persecution or torture. In this case, as it was determined that he is a refugee, the Applicant would not be removed following this Court's decision. Indeed, before removal, he will have to face another step which is the Pre-Removal Risk Assessment. Accordingly, it would seem that the Applicant has not exhausted all avenues provided.
[37] I find that there has been no violation of the principles of fundamental justice, and that the Applicant's right of appeal was not in any way constitutionally guaranteed. The jurisprudence is consistent on that point. In Casiano v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1199 (T.D.), Dubé J. held:
[para. 7] ... the Minister's decision of removing retroactively the applicant's appeal rights to the Immigration Appeal Division does not violate the applicant's rights under the Charter. It has been held on several occasions that there is no constitutionally guaranteed right of appeal. The matter was properly crystallized by La Forest, J. of the Supreme Court of Canada in Kourtessis v. M.N.R. [1993] 2 S.C.R., 53 at page 70 when he concluded as follows:
But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature.
(Also see Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711.)
[38] In reviewing the applicable jurisprudence, I do not see any circumstances that could provide valid reasons to depart from the consistent authority.
Accordingly, I conclude that the rights protected by section 7 of the Charter are not engaged in this case.
CONCLUSION
[39] In light of the foregoing, I find that this application for judicial review should not succeed. Both parties have agreed to submit two questions for certification:
1. Does the word "stay" in section 196 of the IRPA contemplate a stay that came into effect under the Immigration Act, R.S.C. 1985, c. I-2 as a result of the operation of paragraph 49(1)(b)?
2. Is section 7 of the Charter engaged on the facts of this case and, if so, did the dismissal of the Applicant's appeal result in a breach of the principles of fundamental justice?
[40] I have reviewed the two questions as well as the material provided by the parties, including the decision of Medovarski, supra. With respect to the second question, I have no hesitation in concluding that, with all due respect, this question is not of general importance and will not be certified.
[41] I have considered the first question in light of the decision of Medovarski, supra. In that decision, Snider J. stated:
[para. 48] Accordingly, I conclude that the word "stay" in section 196 of the IRPA contemplates a stay that came into effect as a result of the operation of paragraph 49(1)(b) of the former Act. My decision in this case does not establish whether Parliament could, through legislative amendments, remove the right of appeal from the Applicant and others in her position; it only determines that Parliament did not do so for this Applicant.
[emphasis added]
[42] Given that the interpretation of section 196 in Medovarski, supra, is different than the one which concerns us in this matter, I am of the opinion that in this case, Parliament was not deprived of removing the right of appeal of the Applicant.
[43] Therefore, the first question does not raise a question of general importance.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed.
2. No question for certification.
"Pierre Blais"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4535-02
STYLE OF CAUSE: Moseyab Nazari Nokhodchari v MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 5th, 2003
REASONS FOR ORDER
APPEARANCES:
Robert J. Kincaid
FOR PLAINTIFF / APPLICANT
Sandra Weafer
FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Robert J. Kincaid Law Corporation
Vancouver, B.C. FOR PLAINTIFF/APPLICANT
Department of Justice
Vancouver, B.C. FOR DEFENDANT/ RESPONDENT