Olvera Romero v. Canada (Minister of Citizenship and Immigration), (2014) 458 F.T.R. 239 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: April 28, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 458 F.T.R. 239 (FC);2014 FC 671

Olvera Romero v. Can. (M.C.I.) (2014), 458 F.T.R. 239 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JL.032

Silvia Olvera Romero (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6485-13; 2014 FC 671; 2014 CF 671)

Indexed As: Olvera Romero v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

July 9, 2014.

Summary:

The applicant was a citizen of Mexico. She and her husband came to Canada in 1997. In 1999, the Refugee Protection Division of the Immigration and Refugee Board determined that she and her husband were Convention refugees because they had a well-founded fear of persecution by individuals associated with the then ruling political party in Mexico. Their daughter was born in Canada in 1999. The applicant separated from her husband and, in July 2010, she became a permanent resident of Canada. On August 6, 2013, the applicant was returning from Mexico, accompanied by her daughter, when she was questioned by a Canada Border Services Agency (CBSA) officer concerning that trip and her prior trips to Mexico. On September 19, 2013, the CBSA hearings officer applied under s. 108 of the Immigration and Refugee Protection Act (IRPA) for the cessation of refugee protection for the applicant. The applicant applied for judicial review of the hearings officer's decision. The following issues were raised: (1) whether the applicant was denied procedural fairness; (2) whether the hearings officer had the discretion to consider humanitarian and compassionate factors prior to submitting a cessation application; (3) whether the applicant's Notice of Constitutional Question should be set aside; and (4) if the hearings officer was unable to consider humanitarian and compassionate factors on a cessation application, whether s. 7 of the Charter was violated.

The Federal Court determined each issue in the negative and dismissed the application. The court certified the following question: "In connection with s. 108(2) of the IRPA and in light of the amendments to s. 46(1) and 40.1(1)(c.1): (a) is a CBSA officer who intends to interview a permanent resident and protected person obliged to inform that person of the purpose of the interview, being a potential cessation application; (b) is the CBSA officer or a hearings officer, the [Citizenship and Immigration] Minister's delegate, obliged to provide that person with an opportunity to make submissions prior to the making of a cessation application; (c) does the CBSA hearings officer, or the hearings officer as the Minister's delegate, have the discretion to consider factors other than those set out in s. 108(1), including [Humanitarian and Compassionate] considerations and the best interests of a child, when deciding whether to make a cessation application pursuant to s. 108(2)?"

Administrative Law - Topic 222

The hearing and decision - Right to be heard - When available - In 1999, the applicant, a citizen of Mexico, was determined to be a Convention refugee based on a well-founded fear of persecution - In July 2010, she became a permanent resident of Canada - On August 6, 2013, she was returning from Mexico, accompanied by her Canadian born daughter, when she was questioned by a Canada Border Services Agency (CBSA) officer concerning that trip and her prior trips to Mexico - On September 19, 2013, the CBSA hearings officer applied under s. 108 of the Immigration and Refugee Protection Act for the cessation of refugee protection for the applicant - The applicant applied for judicial review of the hearings officer's decision, asserting that the failure to give her notice and an opportunity to make submissions constituted a denial of procedural fairness - The Federal Court stated that, while the hearings officer's decision to file the cessation application was preliminary in the sense that it was the Refugee Protection Division (RPD) that would make the final determination, it was nevertheless an administrative decision that could have a significant potential impact on the applicant - Accordingly, it attracted a duty of fairness - However, the level of procedural fairness required was on the lower end of the spectrum - Neither notice nor an opportunity to make submissions were required - There was no breach of procedural fairness - The court noted it would be prudent for CBSA officers to advise individuals that the purpose of their questions was to inform a potential cessation application - See paragraphs 22 to 79.

Administrative Law - Topic 2405

Natural justice - Procedure - Notice of subject matter to be considered - [See Administrative Law - Topic 222 ].

Administrative Law - Topic 2442

Natural justice - Procedure - Notice - When required - [See Administrative Law - Topic 222 ].

Aliens - Topic 4

Definitions and general principles - Children - In 1999, the applicant, a citizen of Mexico, was determined to be a Convention refugee based on a well-founded fear of persecution - In July 2010, she became a permanent resident of Canada - On August 6, 2013, she was returning from Mexico, accompanied by her Canadian born daughter, when she was questioned by a Canada Border Services Agency (CBSA) officer concerning that trip and her prior trips to Mexico - On September 19, 2013, the CBSA hearings officer applied under s. 108 of the Immigration and Refugee Protection Act for the cessation of refugee protection for the applicant - A successful cessation application would result in the applicant's loss of residency - The applicant applied for judicial review of the hearings officer's decision, asserting that the hearings officer's lack of ability to consider humanitarian and compassionate considerations, including any impact on the best interests of her daughter, contravened s. 7 of the Charter - The Federal Court rejected the assertion - The hearings officer's cessation application had no impact on the daughter - It was only if the Refugee Protection Division decided that any of the s. 108(1)(a) to s. 108(1)(d) criteria were met did that possibility arise - Where the statutory scheme provided an effective opportunity for considering the interests of any affected children, including those born in Canada, those interests did not have to be considered before the making of every decision which might adversely affect them - See paragraphs 137 and 138.

Aliens - Topic 1313.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee protection - Rejection of claims where refugee protection ceased (IRPA, s. 108) - [See Administrative Law - Topic 222 and Aliens - Topic 4 ].

Aliens - Topic 1313.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee protection - Rejection of claims where refugee protection ceased (IRPA, s. 108) - In 1999, the applicant, a citizen of Mexico, was determined to be a Convention refugee based on a well-founded fear of persecution - In July 2010, she became a permanent resident of Canada - On August 6, 2013, she was returning from Mexico, accompanied by her Canadian born daughter, when she was questioned by a Canada Border Services Agency (CBSA) officer concerning that trip and her prior trips to Mexico - On September 19, 2013, the CBSA hearings officer applied under s. 108 of the Immigration and Refugee Protection Act for the cessation of refugee protection for the applicant - The applicant applied for judicial review of the hearings officer's decision, asserting that the hearings officer should have considered humanitarian and compassionate (H&C) grounds prior to submitting the cessation application - She asserted that the Immigration Manual: Enforcement (ENF) - Chapter ENF 24 Ministerial Interventions (ENF-24) established the Minister of Citizenship and Immigration policy and demonstrated that an application for cessation should only be made after balancing considerations that were beyond the scope of s. 108(1) - The Federal Court rejected the assertion - Section 108(1) set out the circumstances which gave rise to cessation of refugee protections - Those were reflective of article 1C of the Refugee Convention and did not incorporate discretionary or H&C considerations - Once the hearings officer was satisfied that a prima facie case that a s. 108(1)(a) to s. 108(1)(d) criteria had been met on the basis of the information before her, she had no discretion not to make a cessation application - The factors listed in ENF-24 all pertained to information that would permit that assessment - See paragraphs 80 to 106.

Aliens - Topic 1313.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee protection - Rejection of claims where refugee protection ceased (IRPA, s. 108) - In 1999, the applicant, a citizen of Mexico, was determined to be a Convention refugee based on a well-founded fear of persecution - In July 2010, she became a permanent resident of Canada - On August 6, 2013, she was returning from Mexico, accompanied by her Canadian born daughter, when she was questioned by a Canada Border Services Agency (CBSA) officer concerning that trip and her prior trips to Mexico - On September 19, 2013, the CBSA hearings officer applied under s. 108 of the Immigration and Refugee Protection Act for the cessation of refugee protection for the applicant - The applicant applied for judicial review, asserting that the hearings officer's inability to consider humanitarian and compassionate grounds and the retrospective application of s. 46(1)(c.1) of the Act (which would result in the loss of her permanent residency), contravened her s. 7 Charter rights - The Federal Court rejected the argument - In circumstances involving a change of legislation and transitional provisions, s. 7 of the Charter was not engaged and, even if it were, the alleged unfairness did not constitute a breach of the principles of fundamental justice - Further, the deportation of a non-citizen in and of itself did not implicate the s. 7 liberty and security interests - Section 46(1)(c.1) was not retrospective - It provided that permanent residency would be lost on a final determination by the Refugee Protection Division (RPD) of the cessation application, a decision which had yet to be made - The fact that the applicant was granted refugee protection and permanent residency status at a time when the disputed provisions were not in effect did not mean that new legislation would not apply to her - Further, some of the facts that would underlie the RPD's determination arose after the amendments -Where, as here, the s. 7 security rights was being invoked on the basis of an impact on an individual's psychological security, there had to be "serious state-imposed psychological stress" - The applicant had not demonstrated that she was a victim, at this stage, of such an impact - See paragraphs 120 to 136.

Aliens - Topic 1326

Admission - Refugee protection, Convention refugees and persons in need of protection - Procedure - [See Administrative Law - Topic 222 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - [See third Aliens - Topic 1313.6 ].

Civil Rights - Topic 1206.5

Security of the person - Right to psychological integrity (incl. dignity, reputation etc.) - [See third Aliens - Topic 1313.6 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - [See third Aliens - Topic 1313.6 ].

Civil Rights - Topic 1327

Security of the person - Immigration - Permanent residence - [See Aliens - Topic 4 and third Aliens - Topic 1313.6 ].

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - A Canada Border Services Agency hearings officer applied under s. 108 of the Immigration and Refugee Protection Act for the cessation of refugee protection for the applicant - The applicant sought judicial review and filed a notice of constitutional question - The Minister of Citizenship and Immigration challenged the notice of constitutional question, asserting that it did not clearly set out why the impugned statutory provisions were inapplicable or inoperative and it did not seek specific relief - The Minister asserted that the applicant's constitutional arguments raised arguments about the interpretation of the provisions, not their constitutionality - Additionally, the Minister asserted that the constitutional arguments were not raised at the outset - Instead, the applicant improperly waited until after leave had been granted, affidavits filed, cross-examinations conducted and the Minister had filed its further memorandum - The Federal Court rejected the Minister's arguments - The applicant's notice plainly identified the statutory provisions alleged to be inapplicable or inoperative - It also set out the material facts that gave rise to the legal basis for the constitutional question - While it did not explicitly identify the remedy sought, rule 69 of the Federal Court Rules only required that the notice be in Form 69, which did not include a section identifying a remedy - In any event, the applicant asserted that the identified breaches of her s. 7 Charter rights applied to her and her daughter - It could be inferred that she sought either a constitutional exemption from the operation of those provisions or a declaration of invalidity - In that case, the lack of specificity as to remedy was not fatal to the notice - It was also of note that s. 57(2) of the Federal Courts Act only required that the notice be served at least 10 days before the day on which the constitutional questions were to be argued unless otherwise ordered - In many instances, such as this one, that would be subsequent to the completion of pre-hearing matters - That was not an extraordinary circumstance - The Minister had not sought an adjournment nor commenced a formal motion attacking any irregularity or non-compliance - See paragraphs 107 to 110.

Constitutional Law - Topic 9954

Practice - Notice to Crown and interested parties of constitutional question (incl. attack on validity or applicability of statute) - [See Civil Rights - Topic 8588 ].

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - [See third Aliens - Topic 1313.6 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 14].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 15].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 15].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 16].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 16].

Kandola v. Canada (Minister of Citizenship and Immigration) (2014), 456 N.R. 115; 2014 FCA 85, refd to. [para. 16].

Kinsel v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 116; 2014 FCA 126, refd to. [para. 16].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 18].

Hernandez v. Canada (Minister of Citizenship and Immigration) et al., [2006] 1 F.C.R. 3; 271 F.T.R. 257; 2005 FC 429, dist. [para. 24].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 27].

Guay v. Lafleur, [1965] S.C.R. 12, refd to. [para. 30].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 30].

Hyundai Motor Co. et al. v. Canada et al. (1987), 14 F.T.R. 316 (T.D.), refd to. [para. 30].

Kindler v. Minister of Employment and Immigration (1987), 80 N.R. 388; 41 D.L.R.(4th) 78 (F.C.A.), refd to. [para. 30].

Mohammad v. Minister of Employment and Immigration (1988), 91 N.R. 121; 55 D.L.R.(4th) 321 (F.C.A.), refd to. [para. 30].

Varga et al. v. Canada (Minister of Citizenship and Immigration) (2006), 357 N.R. 333; 2006 FCA 394, refd to. [para. 32].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 32].

Nagalingam v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 422 F.T.R. 135; 2012 FC 1411, refd to. [para. 33].

Cha v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 409; 349 N.R. 233; 2006 FCA 126, refd to. [para. 33].

Faci v. Canada (Minister of Public Safety and Emergency Preparedness), [2011] F.T.R. Uned. 413; 2011 FC 693, refd to. [para. 33].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 37].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 50].

Al Yamani v. Canada (Solicitor General) et al. (1995), 103 F.T.R. 105; 129 D.L.R.(4th) 226 (T.D.), refd to. [para. 51].

Smith v. Canada (Attorney General) et al., [2010] 1 F.C.R. 3; 348 F.T.R. 290; 2009 FC 228, refd to. [para. 55].

Nsende v. Canada (Minister of Citizenship and Immigration) (2008), 327 F.T.R. 315; 2008 FC 531, refd to. [para. 69].

Cadena et al. v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 408 F.T.R. 1; 2012 FC 67, refd to. [para. 69].

Monge Monge v. Canada (Minister of Public Safety and Emergency, [2010] 2 F.C.R. 291; 347 F.T.R. 122; 2009 FC 809, refd to. [para. 98].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 105].

R. v. D.I., [2012] 1 S.C.R. 149; 427 N.R. 4; 288 O.A.C. 1; 2012 SCC 5, refd to. [para. 105].

Kimoto et al. v. Canada (Attorney General) et al. (2011), 426 N.R. 69; 2011 FCA 291, refd to. [para. 108].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 111].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 112].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 113].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 116].

Nguyen v. Canada (Minister of Citizenship and Immigration) (1993), 151 N.R. 69; 18 Imm.L.R.(2d) 165 (F.C.A.), refd to. 116].

Barrera v. Minister of Employment and Immigration (1992), 151 N.R. 28; 99 D.L.R.(4th) 264 (F.C.A.), refd to. [para. 116].

Martin v. Canada (Minister of Citizenship and Immigration) (2005), 268 F.T.R. 74; 2005 FC 60, refd to. [para. 116].

De Guzman v. Canada (Minister of Citizenship and Immigration) (2005), 345 N.R. 73; 2005 FCA 436, refd to. [para. 117].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 118].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 121].

Soe v. Canada (Minister of Citizenship and Immigration) et al. (2007), 313 F.T.R. 265; 2007 FC 671, refd to. [para. 123].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 129].

Rudolph v. Minister of Employment and Immigration, [1992] 2 F.C. 653; 142 N.R. 62 (F.C.A.), refd to. [para. 131].

Lopes v. Canada (Minister of Citizenship and Immigration) (2010), 367 F.T.R. 41; 2010 FC 403, refd to. [para. 131].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 135].

Zhang v. Canada (Minister of Citizenship and Immigration) (2013), 446 N.R. 382; 2013 FCA 168, refd to. [para. 141].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 40.1(1) [para. 7]; sect. 46.(1)(c.1) [para. 6]; sect. 108 [para. 5].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (Looseleaf Update), pp. 7-47, 7-51, 7-52 [para. 51].

Counsel:

Peter Edelmann, for the applicant;

Banafsheh Sokhansanj and Mary E. Murray, for the respondents.

Solicitors of Record:

Edelmann & Co. Law Offices, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondents.

This application was heard on April 28, 2014, at Vancouver, B.C., before Strickland, J., of the Federal Court, who delivered the following judgment and reasons on July 9, 2014.