Chieu v. Can. (M.C.I.) (2002), 280 N.R. 268 (SCC)
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: [2002] N.R. TBEd. JA.012
Huor Chieu (appellant) v. The Minister of Citizenship and Immigration (respondent) and The Canadian Council of Churches and The Immigration and Refugee Board (interveners)
(27107; 2002 SCC 3)
Indexed As: Chieu v. Canada (Minister of Citizenship and Immigration)
Supreme Court of Canada
McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
January 11, 2002.
Summary:
Chieu, a native of Cambodia who had been given temporary residence status in Vietnam, was granted landing in Canada. An adjudicator subsequently ordered Chieu’s removal from Canada on the basis that he had been granted landing by reason of the misrepresentation of a material fact, contrary to s. 27(1)(e) of the Immigration Act. Chieu appealed the removal order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board pursuant to s. 70(1)(b) of the Act.
The IAD, in a decision reported at [1995] I.A.D.D. No. 1055, dismissed the appeal. Following Hoang v. Minister of Employment and Immigration (F.C.A.), the IAD stated that it was premature for the IAD to take into account the conditions of a person’s country of origin, as the determination of the country which the person would be deported to rested with the Minister of Citizenship and Immigration. Chieu applied for judicial review, arguing that the IAD erred in not fully considering the potential hardship he would face in Cambodia as that was the only country that was legally obliged to accept him upon removal from Canada. He also argued that the Hoang case involved the removal of a refugee and did not apply to the removal of permanent residents who were not Convention refugees.
The Federal Court of Canada, Trial Division, in a decision reported at 125 F.T.R. 76, dismissed the application. The court held that Hoang applied to appeals by non-refugee permanent residents pursuant to s. 70(1)(b) of the Act and that as no determination had yet been made under s. 52 of the Act regarding the country to which Chieu would be deported, an assessment of country conditions by the IAD would have been premature. The court certified the following question pursuant to s. 83(1) of the Act: “Can the Appeal Division of the IRB, in the exercise of its jurisdiction to have ‘regard to all the circumstances of the case’, under the Immigration Act’s s. 70(1)(b), consider the country (and its conditions) to which the non-refugee appellant would, on the balance of probabilities, be removed when assessing whether ‘the person should not be removed from Canada’; or not, in accordance with the decision of Mr. Justice MacGuigan in a refugee case, Hoang v. Minister of Employment and Immigration”. Chieu appealed.
The Federal Court of Appeal, in a decision reported at 234 N.R. 112, answered the certified question in the negative and dismissed the appeal. The court held that, in exercising its equitable jurisdiction pursuant s. 70(1)(b), the IAD could not consider country conditions in potential destinations of deportees. Chieu appealed.
The Supreme Court of Canada allowed the appeal. The court held that the IAD could consider potential foreign hardship under s. 70(1)(b) when the likely country of removal had been established by an individual facing removal. In this case, the likely country of removal had not been established before the IAD. The court remitted the case to the IAD for a rehearing. If Chieu established a likely country of removal then the IAD could consider the potential foreign hardship that he would face in that country in exercising its discretionary jurisdiction under s. 70(1)(b).
Administrative Law – Topic 3202
Judicial review – General – Scope or standard of review – At issue on an application for judicial review, and ultimately on an appeal to the Supreme Court of Canada, was whether the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, in the exercise of its jurisdiction under s. 70(1)(b) of the Immigration Act, could consider potential foreign hardship when deciding whether to uphold a removal order made against a permanent resident – A serious question of general importance had been certified pursuant to s. 83(1) of the Act with respect to the issue – The Supreme Court of Canada stated that while the review of an issue of “general importance” weighed in favour of a correctness standard of review, it was not determinative of the standard of review on its own and other factors relevant to the pragmatic and functional approach still had to be considered – See paragraph 23.
Administrative Law – Topic 3202
Judicial review – General – Scope or standard of review – At issue on an application for judicial review, and ultimately on an appeal to the Supreme Court of Canada, was whether the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, in the exercise of its jurisdiction under s. 70(1)(b) of the Immigration Act, could consider potential foreign hardship when deciding whether to uphold a removal order made against a permanent resident – The Supreme Court of Canada held that the standard of review was correctness – The court considered the nature of the question under review, that a serious question of general importance had been certified, that the IAD enjoyed no relative expertise in the matter of law under review, that Parliament had not enacted a strong privative clause for decisions of the IAD, and that appeals under s. 70(1)(b) required the resolution of an issue in which an individual’s rights were at stake – The court stated that it might well be that a more deferential standard would apply to decisions of the IAD in other contexts, particularly if the issue under review fell squarely within the board’s specialized expertise – See paragraphs 20 to 26.
Administrative Law – Topic 9102
Boards and tribunals – Judicial review – Standard of review – [See both
Administrative Law – Topic 3202
].
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – [See sixth
Aliens – Topic 1797.2
].
Aliens – Topic 1783
Exclusion and expulsion – Deportation of persons in Canada – Place of deportation – [See third and fourth
Aliens – Topic 1797.2
].
Aliens – Topic 1797.2
Exclusion and expulsion – Deportation of persons in Canada – Deportation or removal order – Appeals – Section 70(1)(b) of the Immigration Act provided that where a removal order was made against a permanent resident, that person could appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board on the ground that having regard to “all the circumstances of the case” the person should not be removed from Canada – The Supreme Court of Canada considered the meaning of the phrase “all the circumstances of the case” and concluded that the IAD was entitled to consider potential foreign hardship when exercising its discretionary jurisdiction under s. 70(1)(b), provided that the likely country of removal had been established by the individual being removed on a balance of probabilities – Such an interpretation was consistent with a grammatical and ordinary reading of the words of s. 70(1)(b) and was in harmony with the legislative intent and the scheme and object of the Act – See paragraphs 29 to 71.
Aliens – Topic 1797.2
Exclusion and expulsion – Deportation of persons in Canada – Deportation or removal order – Appeals – Section 70(1)(b) of the Immigration Act provided that a permanent resident could appeal a removal order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board on the ground that having regard to “all the circumstances of the case” the person should not be removed from Canada – The Supreme Court of Canada stated that an ordinary reading of “all the circumstances of the case” led to a broad interpretation of s. 70(1)(b) – The court considered that the words appeared in a provision establishing a discretionary or equitable jurisdiction and that the words did not provide detailed guidelines as to how the discretionary jurisdiction was to be exercised, but instead left the scope of the discretion open ended – The grammatical sense of the words also favoured a broad reading of s. 70(1)(b) – The court considered the definition of the word “all”, stating that in this context, it would mean considering the greatest possible number of factors relevant to the removal of a permanent resident – In addition, the inclusive nature of the word “all” suggested that realistic possibilities were just as relevant as certainties in making the discretionary decision – See paragraphs 29 to 33.
Aliens – Topic 1797.2
Exclusion and expulsion – Deportation of persons in Canada – Deportation or removal order – Appeals – At issue was whether the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, in the exercise of its jurisdiction under s. 70(1)(b) of the Immigration Act, could consider potential foreign hardship when deciding whether to uphold a removal order made against a permanent resident – The Minister of Citizenship and Immigration argued that the IAD could not consider potential foreign hardship under s. 70(1)(b) because the Minister had not yet made her decision as to the country of removal under s. 52 at the time of the s. 70(1)(b) hearing and to conclude otherwise would allow the IAD to interfere with the Minister’s jurisdiction to make that decision – The Supreme Court of Canada stated that if the Minister was concerned about maintaining the ability to exercise her jurisdiction to decide the country of removal, she was free to make the s. 52 decision prior to the IAD hearing – In any event, the Minister could make submissions to the IAD at the time of the appeal regarding the likely country of removal – See paragraphs 52 to 53.
Aliens – Topic 1797.2
Exclusion and expulsion – Deportation of persons in Canada – Deportation or removal order – Appeals – At issue was whether the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, in the exercise of its jurisdiction under s. 70(1)(b) of the Immigration Act, could consider potential foreign hardship when deciding whether to uphold a removal order made against a permanent resident – The Minister of Citizenship and Immigration argued that the IAD could not consider potential foreign hardship under s. 70(1)(b) because the Minister had not yet made her decision as to the country of removal under s. 52 at the time of the s. 70(1)(b) hearing and to conclude otherwise would allow the IAD to interfere with the Minister’s jurisdiction to make that decision – The Supreme Court of Canada held that allowing the IAD to take foreign hardship into account under s. 70(1)(b) would not interfere with the Minister’s jurisdiction to select the country of removal – If the IAD decided to quash or stay a removal order, it would not interfere with the Minister’s jurisdiction under s. 52, because there was no longer a removal order in place for which a s. 52 decision needed to be made – See paragraph 55.
Aliens – Topic 1797.2
Exclusion and expulsion – Deportation of persons in Canada – Deportation or removal order – Appeals – At issue was whether the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, in the exercise of its jurisdiction under s. 70(1)(b) of the Immigration Act, could consider potential foreign hardship when deciding whether to uphold a removal order made against a permanent resident – The Minister of Citizenship and Immigration argued that the scheme of the Act favoured considering foreign hardship under an application for judicial review of the Minister’s decision under s. 52 of the Act as to the country of removal or under an application for a Minister’s permit under s. 114(2) of the Act to exempt the individual from removal due to foreign hardship concerns – The Supreme Court of Canada held that the scheme of the Act revealed that an appeal to the IAD under s. 70(1)(b) was the most appropriate place for a permanent resident facing removal from Canada to have foreign hardship taken into account – It was only when it was not possible for the IAD to consider potential foreign hardship that other provisions of the Act needed to be resorted to – See paragraphs 49 to 64.
Aliens – Topic 1797.2
Exclusion and expulsion – Deportation of persons in Canada – Deportation or removal order – Appeals – At issue was whether the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, in the exercise of its jurisdiction under s. 70(1)(b) of the Immigration Act, could consider potential foreign hardship when deciding whether to uphold a removal order made against a permanent resident – The Minister of Citizenship and Immigration argued that permanent residents who had lost their permanent resident status as a result of the IAD upholding a removal order against them could apply under s. 114(2) of the Act to be reinstated as permanent residents by the Minister based on humanitarian and compassionate considerations and that foreign hardship was more appropriately considered on an application under s. 114(2) – In that way, potential foreign hardship would be considered by the Minister after the s. 52 decision as to country of removal had been made, rather than by the IAD under s. 70(1)(b) prior to the s. 52 decision – The Supreme Court of Canada disagreed with the Minister’s position, at least in cases where a likely country of removal could be established before the IAD – The court stated that this was not the intended role of s. 114(2) within the scheme of the Act, at least as a matter of general recourse – See paragraphs 60 to 64.
Aliens – Topic 1858
Exclusion and expulsion – Immigration and Refugee Board – Deportation – Place of – [See third and fourth
Aliens – Topic 1797.2
].
Aliens – Topic 4069
Practice – Judicial review and appeals – Appeals – Certification of serious question of general importance by Trial Division – [See first
Administrative Law – Topic 3202
].
Statutes – Topic 501
Interpretation – Purpose of legislation – Duty to promote object of statute – [See first
Aliens – Topic 1797.2
].
Statutes – Topic 502
Interpretation – Intention of legislature – [See first
Aliens – Topic 1797.2
].
Statutes – Topic 516
Interpretation – Ordinary meaning of words – [See first
Aliens – Topic 1797.2
].
Words and Phrases
All
– The Supreme Court of Canada considered the nature of the word “all” in the phrase “all the circumstances of the case” in s. 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 – See paragraphs 30 to 32.
Cases Noticed:
Al Sagban v. Canada (Minister of Citizenship and Immigration) (2002), 280 N.R. 215 (S.C.C.), refd to. [para. 3].
Hoang v. Minister of Employment and Immigration (1990), 120 N.R. 193; 13 Imm. L.R.(2d) 35 (F.C.A.), overruled [para. 12].
Ribic v. Minister of Employment and Immigration, [1985] I.A.B.D. No. 4 (I.A.B.), refd to. [para. 15].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 19].
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 20].
Syndicat national des employés de la commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 21].
U.E.S., Local 298 v. Bibeault – see Syndicat national des employés de la commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).
Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 21].
Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 21].
Stubart Investments Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 536; 53 N.R. 241; [1984] C.T.C. 294; 84 D.T.C. 6305, refd to. [para. 27].
Action Travail Des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, refd to. [para. 27].
Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) – see Action Travail Des Femmes v. Canadian National Railway Co. et al.
Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 27].
R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 27].
Krishnapillai v. Canada (Minister of Citizenship and Immigration), [1997] I.A.D.D. No. 636 (I.A.D.), refd to. [para. 31].
Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 36].
Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; 23 D.L.R.(3d) 1, refd to. [para. 39].
El Tassi v. Canada (Minister of Citizenship and Immigration), [1996] I.A.D.D. No. 993 (I.A.D.), overruled [para. 41].
Naredo and Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468; 132 F.T.R. 281 (T.D.), refd to. [para. 51].
Al Sagban v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 501; 137 F.T.R. 283 (T.D.), refd to. [para. 53].
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 57].
Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 57].
Dehghani v. Minister of Employment and Immigration, [1993] 1 S.C.R. 1053; 150 N.R. 241, refd to. [para. 57].
Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376; 3 N.R. 484; 52 D.L.R.(3d) 383, refd to. [para. 57].
Suresh v. Canada (Minister of Citizenship and Immigration) (2002) 281 N.R. 1 (S.C.C.), refd to. [para. 59].
Jiminez-Perez and Reid v. Minister of Employment and Immigration, Boisvert and Lawson, [1984] 2 S.C.R. 565; 56 N.R. 215, refd to. [para. 61].
R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 70].
Syndicat des employés de production du Québec et de l’Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241; 62 D.L.R.(4th) 385; 11 C.H.R.R. D/1, refd to. [para. 70].
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; [1990] 3 W.W.R. 289; 69 D.L.R.(4th) 489, refd to. [para. 70].
Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81; [1991] 6 W.W.R. 289, refd to. [para. 70].
Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board (Que.), [1953] 2 S.C.R. 140, refd to. [para. 71].
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 71].
Hoang v. Minister of Employment and Immigration, [1987] I.A.B.D. No. 6 (I.A.B.), refd to. [para. 75].
Canepa v. Minister of Employment and Immigration, [1992] 3 F.C. 270; 145 N.R. 121; 93 D.L.R.(4th) 589; 10 C.R.R.(2d) 348 (F.C.A.), refd to. [para. 79].
Grewal v. Minister of Employment and Immigration, [1989] I.A.D.D. No. 22 (I.A.B.), refd to. [para. 90].
Statutes Noticed:
Immigration Act, R.S.C. 1985, c. I-2, sect. 52 [para. 6]; sect. 70(1)(b) [para. 5]; sect. 114(2) [para. 7].
Authors and Works Noticed:
Canada, Hansard, House of Commons Debates (July 22, 1977), p. 7928 [para. 38].
Citizenship and Immigration Canada, Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation (1998), p. 52 [paras. 36, 68].
Côté, Pierre-André, The Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 287 to 294 [para. 27].
Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 27].
Driedger, Elmer A., Construction of Statutes (3rd Ed. 1994), p. 131 [para. 27].
Immigration and Refugee Board, Removal Order Appeals (1999), p. 9-2 [para. 39].
Kelley, N., and Trebilcock, M., The Making of a Mosaic: A History of Canadian Immigration Policy (1998), pp. 368, 369 [para. 36]; 430 [para. 38].
Waldman, Lorne, Immigration Law and Practice (Looseleaf Ed.), §§10.133.3 [para. 63]; 10.133.4 [para. 54]; 10.133.7 [para. 48].
Counsel:
David Matas, for the appellant;
Judith A. Bowers, Q.C., for the respondent;
Lorne Waldman and Carol Simone Dahan, for the intervener the Canadian Council of Churches;
Brian A. Crane, Q.C., and Krista Daley, for the intervener the Immigration and Refugee Board.
Solicitors of Record:
David Matas, Winnipeg, Manitoba, for the appellant;
The Attorney General of Canada, Vancouver, British Columbia, for the respondent;
Jackman, Waldman & Associates, Toronto, Ontario, for the intervener the Canadian Council of Churches;
Gowling Lafleur Henderson, Ottawa, Ontario, for the intervener the Immigration and Refugee Board.
This appeal was heard on October 10, 2000, before McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court of Canada was delivered in both official languages by Iacobucci, J., on January 11, 2002.
