OF THE COMMISSION AS TO THE ADMISSIBILITY
On December 10th, 1992, the Commission received a complaint filed on behalf of Mrs. Cheryl Monica Joseph, against the Government of Canada with regard to its Immigration Refugee Claim Process. The complaint alleges as follows:
That Mrs. Joseph a Trinidadian citizen resided for five years
with her husband, and their five children in Canada.
That her husband was killed in an accident in Canada, leaving her
responsible for the five children.
That she is still involved in legal proceedings in Canada, and is
trying to resolve insurance matters related to his death.
That she is now a single parent, and that it would be
unreasonable to expect a single parent accompanied by five children to
find travel costs to relocate the whole family in Trinidad after five
years in Canada, and to be able to pay legal costs in Canada from
Trinidad, and to then pay travel costs, to appear in a hearing in
Canada. It states that most
of her close relatives including her mother are citizens or permanent
residents of Canada, and that she has nothing to return to. Her children have developed attachments in Canada, especially
her eldest child who lived through the critical and formative teenage
years in Canada. That she
applied for refugee status in March of 1988, and now has an expulsion
date set for December 13th, 1992, and that there appears to be no
convincing reason to deport her and her children.
Mrs. Joseph was given the choice between "deportation"
and a "departure notice."
It alleges that this choice cannot be construed as a
"choice" to depart. That
offered deportation or departure, she did not freely, and voluntarily
choose to return to Trinidad. That
the UN human Rights Committee, in its General Comment 15, explains a
state's obligation as follows: "That Article 13 of the Covenant on
Civil and Political Rights is applicable to all procedures aimed at the
obligatory departure of an alien, whether described in national law as
expulsion or otherwise."
THE PETITIONERS REQUEST THAT:
their petition to the Commission, that it is hoped that the Commission
will apply its powers relative to the American Declaration in a manner
consonant with Canada's other human rights treaty obligations. That the deportation of Mrs. Joseph be stayed, and that she
be allowed to proceed to landing in Canada on humanitarian and
Petitioners later requested that the Commission take
Precautionary Measures under the provisions of Article 29 of its
Regulations in order to avoid irreparable damage to Mrs. Joseph, that
she be granted temporary permission to remain in Canada, and that the
deportation order be stayed.
their response to the Government's reply the petitioners requested that
the Commission take measures which will secure Mrs. Joseph's rights to
work and social services while her case is resolved.
That she should be allowed to continue to enjoy the rights of
other aliens who reside in Canada, and be granted a work permit which
will be recognized by local authorities as evidence that she has some
form of status to remain in Canada.
III. IN THIS
CONNECTION THE APPLICANT ALLEGES VIOLATIONS OF:
Articles XVIII, XXVII, V, VI, VII, of the American Declaration of
the Rights and Duties of Man.
Article 26, of the United Nations Covenant on Civil and Political
Various international instruments.
PROCEEDINGS BEFORE THE COMMISSION:
Upon receipt of the petition on December 10th, 1992, and up to
February 24th, 1992, the Commission acting through its Secretariat,
complied with all the procedural requirements of Articles 30 to 35 of
its Regulations. It communicated with the petitioner, and the Government of
Canada, studied, considered, and examined all information submitted by
During this period the Commission sent several notes, and
forwarded the pertinent parts of the petition, to the Canadian
Government, with a request that it supply information which it deemed
appropriate to the allegations of the complainant, and which addressed
the issue of exhaustion of domestic legal remedies.
The Commission qualified the request by stating that "the
request for information did not constitute a decision as to the
admissibility of the communication." There were also several
telephone communications between the Commission and the Government.
The Commission received several notes from the Government of
Canada, including the Government's reply to the petition. One of the
notes dated January 14th, 1993, informed the Commission that the
Government of Canada, had decided to delay temporarily the removal of
Mrs. Joseph from Canada. The Government also submitted its reply to the petition, in
which it argued that domestic remedies in Canada were not exhausted,
that the petition should be declared inadmissible, that the petitioners
argument were meritless, and that it reserved the right to present
further submissions to address the merits.
Also during this period the Commission sent several notes to, and
received a number of notes from the petitioners.
Among the notes sent to the petitioners was a note dated January
15th, 1992, informing then of the Government of Canada's decision to
temporarily stay the removal of Mrs. Joseph from Canada, and a copy of
the Canadian Government's reply to the petition.
The petitioners sent several notes to the Commission including a
note which indicated that the status of the removal order against Mrs.
Joseph will be changed from a "departure notice" to a
"deportation order" on January 31st, 1993, under the
retroactive provisions of the new legislation.
They also urged the Commission to take precautionary measures.
They later submitted documentation to show that Mrs. Joseph had
been gainfully employed in Canada at different periods during the
pendency of her claim for refugee status.
The petitioners responded to the Government's reply and argued in
their submission that domestic remedies had been exhausted in Canada. They further reiterated their prior arguments contained in
their petition as to why Mrs. Joseph should be allowed to remain in
SUBMISSIONS OF THE PARTIES
Argument in Support of the Petition
The petitioners argue that Mrs. Joseph fell under provisions of a
special process, the Refugee Backlog Clearance Process, created to
respond to some 100,000 refugee claimants in Canada as of January 1,
1989, when new legislation took effect.
That from the general experience of this process, a humanitarian
and compassionate submission of this kind represents the last
possibility of relief provided under the Immigration act. The petitioner
argues that there is no simple effective court remedy for the rights at
issue in Mrs. Joseph's expulsion. That Articles XVIII, XXVII, V, VI, VII of the American
Declaration of the Rights and Duties of Man would be violated, and
substantive family rights are at risk in deportation.
That other applicable international covenants, are the United
Nations Covenant on Civil and Political Rights, Article 26, and various
international instruments. That
Article 26 provides sweeping protection against laws and practices which
discriminate even when the substantive right at issue lies outside the
Covenant. That this forms a basis for protection of non-nationals.
That explicit humanitarian and compassionate grounds against
departure are provided for in the Immigration Act as amended in 1989,
and are as follows:
a) persons whose government
will likely impose severe sanctions on their return home;
family dependency; and
c) persons whose personal
circumstance, in relation to the laws, and practices of their country,
are such that they will suffer unduly on returning home.
That in interpreting these explicit grounds reference is made to
the case of Sobrie v. MEI (1987) 3 IMM.L.R. (2d) 81 FCID.
According to pages 86 and 89 of that decision: "The
intention is to provide a fresh view of the immigrant's situation from a
new perspective. The
purpose... is not merely to repeat the procedure..." ..." ...
the Minister .. must be able to direct his mind to what the applicant
feels are his humanitarian and compassionate circumstances."
That in addition to the explicit grounds, the Immigration Act
Section 3(g) intends to comply with Canada's international obligations. That the humanitarian and compassionate grounds must be
interpreted so as to provide the protections required for
"everyone." That according to the Supreme Court of Canada,
"the term everyone in sec.7 of the Canadian Charter of Rights and
Freedoms includes every person physically present in Canada and by
virtue of such presence amenable to Canadian law.
The petitioners argue three main points in favor of the
Government of Canada staying deportation and allowing Mrs. Joseph to
proceed to landing. These
are family, personal circumstances, and minimum redress.
Family: That, the protection of the family has recently emerged as a
right which prevails over the state's desire to expel in a variety of
immigration situations. That
the relevant obligations for Canada are United Nations Covenant on Civil
and Political Rights Articles 17 and 23, and the Inter-American
Declaration of the Rights and Duties of Man, Articles V and VI.
That the United Nations Human Rights Committee underscores the
prohibition on arbitrary interference with the family and that the term
"family" be given a broad interpretation to include "all
those comprising family as understood in the society of the state party
concerned." That the right of alien spouses to join, and enjoy
married life with citizens took precedence over immigration laws in the
case of Aumeeruddy-Cziffra v. Mauritius, United Nations Human
Rights Committee 1981. That
the jurisprudence of the European Court on Human Rights is part of the
context which can be used to interpret the Covenant according to the
Vienna Convention on the interpretation of treaties.
Thus the case of Abdulaziz.
Cabales, and Balkandali v. UK can be said to clarify the
UN Committee's Aumeeruddy-Cziiffra case.
Also, the Court's recent jurisprudence has prohibited the
expulsion of a number of aliens even with criminal convictions on
grounds of family relationships - Beldjoudi v. France 1992: Djeroud
v. France, 1991: Moustaquim v. Belgium, 1991.
That on the instruction of the Supreme Court, family rights must
be at least matched by the Charter of Rights and Freedoms.
That the closest match to rights with the Charter is the right to
the security of the person, Section 7.
That alternatively, denial of family rights might be construed as
cruel or degrading treatment, Section 12.
That in all international human rights cases, the notion of
family dependency played an important part. That Mrs. Joseph's case is
different, but the same notion of family dependency is present.
Her husband died, and was buried in Canada.
In itself, this establishes a link with Canada which is tied to
Mrs. Joseph's security of the person.
It also means that the notion of family dependency must be
considered as attaching to those other members of her family who replace
the security of the person normally assumed to accrue to the spouse.
Most of her closest relatives are now in Canada.
Her mother and sister are in Canada as citizens, two sister, and
one brother are landed here. She
now has only two sisters, and her youngest child in Trinidad.
In the first place Mrs. Joseph came to Canada to visit her
That it is not just Mrs. Joseph who will be expelled, but her
family. Her eldest child,
now 20 years old, must have been significantly shaped during her five
teenage years in Canada. The
other children, who joined her for her husband's funeral in September
1989, have been here for three years.
These largely teenage children, all have family ties in Canada,
and as a result of their younger ages, much of their security of the
person is bound up with their friends, and their lives here.
That it is important to note that the European court considers
ties with grandparents as family in its principle judgment on family
rights Marckx v. Belgium, 1979.
Mrs. Joseph's children have a grandmother who is a Canadian
citizen. That there is
nothing for these children to return to in Trinidad.
That under the Convention on the Rights of the Child, article
3(2), states are to
"ensure the child such protection, and care as is necessary for his
or her well-being ..." That
these words speak for themselves. That
as a single mother with three girls, and one boy plus one 20 year old
daughter, Mrs. Joseph cannot be expected to sustain her close ties with
most of her family who are now residents of Canada, if she is expelled
That it is the personal circumstances which provide Mrs. Joseph
with her claim to protection from expulsion for family rights.
Her family situation also provides a situation of undue hardship
if returned. Mrs. Joseph is
presently involved in legal efforts to secure an insurance settlement
from the death of her husband. If
returned to Trinidad before this situation is resolved, she would incur
financial hardship. First,
trying to instruct a Canadian lawyer from Trinidad would be difficult.
Second, paying for a Canadian lawyer would be difficult for a
single parent mother in Trinidad. Third,
so as to protect her eventual right to immigrate to her family in
Canada, Mrs. Joseph would have to depart.
That she would have to buy airline tickets for herself, and her
children to Trinidad. This
would make it harder to find funds for continuing legal action. Thus,
returning her effectively denies her of her rights to seek a remedy
under Canadian law with respect to her insurance claim.
Minimum Redress: That there are many indications that the
Refugee Claimant Backlog has violated international human rights
obligations, and rights under the Canadian Charter of Rights and
Freedoms. That these might be summarized:
This was one of the over 50 constitutional issues raised by the
Canadian Council of Churches in its statement of claim before the
Canadian Courts. That
although the Supreme Court dismissed the case on the technical grounds
of "standing'" it recognized in general terms the validity of
several of the issues raised.
In December 1988, persons were encouraged to opt for a backlog
program which offered them a simple swift resolution of their problem
within two years. That the
program is not complete almost four years later.
Discrimination: Certain English speaking groups of
claimants were targeted for accelerated processing whereas the program
promised a first come first served basis.
In October 1990, the United Nations Human Rights Committee
advised Canada that it did not favor targeting of groups of asylum
Cruel Treatment: The
procedural arrangements changed during 1989, and the first half of 1990,
introducing uncertainties about the nature, and duration of the program.
The Inter-Church Committee for Refugees provided evidence that
the process related to enhanced post traumatic stress symptoms for some
groups of claimants in the backlog - notably those separated from
spouses or children. This
group would include Mrs. Joseph.
Unfair Process: Persons
in legal proceedings such as a civil suit have the right to a trial
within a reasonable time. Persons
in criminal proceedings have cases against them dropped after two years,
because a longer delay constituted an unfair trial.
A fair trial must take place in a reasonable time to satisfy
standards of fairness. There
is also an element of discrimination in not allowing normal Canadian
standards of fairness in procedures which function as an expulsion
hearing for non-nations.
Finally, that it is not necessary to determine that any, or all
the above possible breeches of Canada's obligations to protect human
rights have occurred. That
if is considered likely that one or more of them may have occurred, this
should be considered as a humanitarian, and compassionate ground for
staying deportation, and for granting the right to proceed to
have an obligation to honor the Constitution which attracts at least
those protections from international human rights treaties.
That immigration officials also have an obligation to act in
accordance with the Immigration Act which itself intends to satisfy
Canada's international obligations.
To that extent that this has not been done so far, an official
must seek to remedy the situation.
This can be done by staying expulsion, and allowing Mrs. Joseph
to proceed to landing.
Joseph should proceed to landing on family grounds, and on grounds of
personal circumstances which would lead to undue hardship if returned.
That she is a person in the refugee claimant backlog who has not
been granted treatment, and procedures which conform with Canada's
international obligations, and that landing is a remedy open to Canada.
The Government of Canada's Reply to the Petition
The Government's Reply, provided background information, and
outlined the process by which Refugee Claims are considered under the
provisions of the Immigration Act of Canada, 1976-77, c. 52, S.1,
S.2(1)(a), S.6(2), and para. 114(1)(d). It also submitted exhibits, and
replied to the petition brought on behalf of Mrs. Joseph.
The United Nations Convention Relating to the Status of
Refugees (the Refugee Convention) was acceded to by Canada on June
4, 1969, and it entered into force on September 2, 1969.
Consequently, Canada bound itself not to expel from its territory
persons from other states, whether nationals of those states or
residents not having a state of nationality, should those persons be
unable or unwilling to return to, or avail themselves of, the protection
of their state of nationality or origin for reasons of race, religion,
nationality, membership in a particular social group, or political
opinion. See ss. 2(1)(a) Immigration Act, 1976-77, c.52, S.1, attached
as appendix A). Canada also
provides similar protection for persons who, while not strictly refugees
on the basis of the Refugee Convention, are nevertheless displaced or
persecuted (See ss. 6(2) and para. 114(1)(d)
The immigration Act also sets out the procedures for obtaining
refugee status in Canada. This
Act was substantially amended in 1989, because it had proved incapable
of effectively dealing with the arrival of massive numbers of new
claimants. On January 1, 1989, at the time of the amendment establishing
a new refugee determination system, there existed a backlog of
approximately 95,000 refugee claims at various stages of processing
under the previous system. The
Canadian government acted to clear this backlog through an expedited
process parallel to, and consistent with the new system.
(The granting of an amnesty was considered to clear the backlog
of refugee claims. However,
it was ultimately rejected because it would have unfairly rewarded some
illegal migrants and been unfair to those persons who followed normal
essence, this process provides that where "a credible
basis" for refugee claim can be established, and the person is
otherwise eligible (i.e. meets the usual statutory requirements
concerning health, criminality, etc.), the claimant may apply for
permanent residence from within Canada.
It is not necessary for persons in the backlog to proceed to a
full refugee determination hearing.
This process was enacted by the Refugee Claimants Designated
Class Regulations (Appendix B) and can be divided into the following
Initial Humanitarian and Compassionate Review:
Firstly, a personal interview is held between the claimant, and
an immigration officer to determine whether the claimant possesses
humanitarian, and compassionate grounds which warrant the use of
discretionary authority to process the person for landing in Canada.
This is a discretionary review by the executive, and is
beyond the requirements of the Refugee Convention.
If the immigration officer determines that humanitarian and
compassionate grounds exist, the claimant may apply for permanent
residence in Canada. If a
negative determination is made, the claimant may, with leave, seek
judicial review of the decision by the Federal Court of Appeal, and then
again, with leave, by the Supreme Court of Canada.
(A prior step existed for persons who on January 1, 1989, the
date the backlog regulations came into force, had already been examined
under oath by a senior immigration officer under the old system. In such circumstances, if a transcript of the proceedings was
available, it would be reviewed by an immigration official to assess
whether the claimant obviously possessed a basis for remaining in
Canada. If a positive
determination was made, the purpose of this paper review was to reduce
the number of panel hearings, and humanitarian, and compassionate
reviews in obvious cases. Over
15,000 cases were decided positively on this basis.)
this stage, unsuccessful claimants have two options. the first option is
to leave Canada voluntarily, and apply to immigrate to Canada from
abroad. Those that leave
voluntarily receive a letter of introduction to the Canadian Embassy or
Consulate in their home state, as well as favorable consideration for
their experience acquired in Canada.
The second option, which is to apply for a hearing, discussed
Credible Basis Hearing:
A hearing is held by a two-member panel consisting of an
Adjudicator, and a member of the Immigration Refugee Board (the IRB) to
assess whether the claimant has a credible basis for believing that he
or she is a Convention refugee as defined in the United Nations Refugee
Convention, and incorporated into ss. 2(1)(a) Immigration Act.
The requirements of the backlog procedure are less strict than
the regular refugee claim process in that only a credible basis need be
shown. The individual need
not demonstrate that he or she meets all the conditions of a Convention
Refugee. The determination
is based on the human rights record of the claimant's country of origin,
previous decisions by the IRB, and any other credible or trustworthy
evidence presented by the claimant in support of the claim.
If either member of the panel finds that there is a credible or
trustworthy evidence presented by the claimant in support of the claim,
the claimant is able to apply for permanent residence pursuant to the
Refugee Claimants Designated Class Regulations, rather than proceed to a
full hearing before the Immigration, and Refugee Board.
a claimant is determined at this hearing not to have a credible basis
for a claim, he or she may, with leave, seek judicial review of the
decision by the Federal Court of Appeal, and after that, with leave, by
the Supreme Court of Canada.
Final Pre-Removal Humanitarian And Compassionate Review:
Persons who are unsuccessful at all the stages described above,
will receive a final humanitarian, and compassionate review prior to
removal of that person from Canada. Senior officials at the Department of Immigration review all
the circumstances of each claimant ordered removed to determine if
action is warranted on humanitarian and compassionate grounds. The case is then referred to the Minister's delegate who
makes the final decision.
10. In summary,
as of December 1992, 93,733 cases have been decided with an overall
acceptance rate of 58%. 43,000 claimants have now been granted permanent
residence and approximately 20,000 have left Canada either by
deportation or voluntary departure.
Over 14,000 persons have failed to come forward for processing,
and are now ineligible for processing under this program.
Mrs. Joseph's Claim:
The petitioner, her husband, and her eldest daughter arrived in
Canada on December 16, 1987, from Trinidad, and claimed refugee status.
Four other children remained in the care of Ms. Joseph's sister
in Trinidad. On September
1989, the petitioner's husband was killed in a car accident, at which
time the children in Trinidad joined their mother.
On May 27, 1992, the petitioner received her initial
humanitarian, and compassionate interview.
No grounds were found to warrant granting her status to remain in
Canada. Subsequently, on
October 29, 1992, a credible basis hearing was held before an
adjudicator, and IRB member. Both
members of the panel concluded that the petitioner had not demonstrated
a credible basis for fearing that she might suffer severe sanctions or
persecution if she were to return to Trinidad.
Consequently, a departure notice for Ms. Joseph, and four
children was issued requiring her to leave by December 13, 1992. (Ms.
Joseph's eldest daughter was subject to her own individual refugee
backlog proceeding. She has
also been issued a departure notice.)
12. On December
7, 1992, a final humanitarian, and compassionate review was conducted,
and it was again concluded that there were no extraordinary grounds
warranting a departure from the usual requirements of the Immigration
Act. Among the factors
considered were the continued existence of family ties in Trinidad. As regards insurance proceedings relating to her husband's
death, Ms. Joseph could give, if necessary, a power of attorney to a
relative or friend resident in Canada.
As well, if the proceedings required her return to Canada, she
could apply for a special Consent of the Minister.
Another relevant factor in humanitarian consideration was that
Ms. Joseph had obtained little work attachments.
As well, it cannot be reasonably expected that Ms. Joseph will be
able to support herself, and her family in Canada, are unwilling to
provide her with assistance. Ms.
Joseph has been primarily dependent on welfare payments.
The petitioner would, of course, be able to apply for entry into
Canada from Trinidad as a regular immigrant.
Exhaustion Of Domestic Remedies:
Article 35 of the Regulations of the Inter-American Commission on
Human Rights (the Regulations) provides that for a petition to be
admitted by the Commission, all effective domestic remedies must be
first exhausted. It is the
position of the Government of Canada, that in failing to seek leave to
appeal both the credible basis decision, and the humanitarian, and
compassionate review, the petitioner failed to exhaust all recourse
available to her in Canada. Article
35 of the Regulations reflects a fundamental principle of general
international law that local recourse be exhausted before an
international remedy is sought. This ensures that domestic remedies are not superseded by an
international organ, and that a state has an opportunity to correct any
wrong which may be shown before its internal fora, before that state's
is engaged. (Robertson, A.H., "Human Rights in Europe,"
Manchester University Press: Oxford 1970, 160; Mose, E. and Opsahl, T,
"The Optional Protocol to the International Covenant on Civil, and
Political Rights," 1981, 21 Santa Clara Law Review 271 at 302.)
Moreover domestic courts are generally better placed to determine
the facts of, and law applicable to a particular case, and where
necessary, to formulate, and enforce an appropriate remedy.
As noted above, the decisions of the two-member panel on credible
basis, and Immigration officials on humanitarian, and compassionate
grounds, may be appealed with leave to the Federal Court of Appeal.
An application for leave must be filed within 15 days from the
date of notification of the panel's or immigration's conclusions, as the
case may be (s. 82.1(3) of the Immigration Act).
In turn, a decision of the Federal Court of Appeal may be
appealed with leave to the Supreme Court of Canada.
In application for leave, Ms. Joseph could have raised the
arguments she has put forward to the Inter-American Commission under the
Canadian Charter of Rights and Freedoms.
The Charter provides, inter alia, the following rights and
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
individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or
ethnic origin, colour, religion, sex, age or mental or physical
24(1). Anyone whose
rights or freedoms, as guaranteed by this Charter, have been infringed
or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
Mrs. Joseph could have also sought judicial review on the basis
of administrative law principles. These
include her right to natural justice, and a duty of fairness upon public
officials. It should also
be recalled that in Canadian Council of Churches v. Her Majesty the
Queen et al., the Supreme Court of Canada denied standing to the
Canadian Council of Churches to contest the refugee determination
procedure in the Immigration Act because the legislation directly
affected all refugee claimants. The
claimants were necessarily before the courts, and had an opportunity to
challenge the Act's provisions. The
Court underlined that refugee claimants were in fact raising arguments
on a daily basis akin to those brought by the Canadian Council of
Churches. It is therefore
submitted that effective domestic remedies were available to the
petitioner. She had a duty to avail herself of those remedies prior to
petitioning an international body, but she chose not to invoke them.
Her failure to do so should not now allow her to by-pass the
important precondition stated in article 35 of the Regulations, and
accordingly, the petition should be dismissed for failure to exhaust
Article V: Protection From Abusive Attacks on Family Life
The petitioner alleges a violation of the right to be protected
against abusive attacks upon the family in article V of the Declaration,
as a consequence of her being denied residence in Canada.
The Government of Canada submits, firstly, that there is no
evidence of "abusive" conduct by the state, and secondly, that
the Article does not include a right to enter or reside in a particular
state. There is no evidence
that Ms. Joseph suffered any "abusive attacks" in the conduct
of her refugee claim. She
received a credible basis hearing in accordance with the Immigration
Act, and due process norms. As
well, the discretionary review on humanitarian, and compassionate
grounds was conducted according to publicly stated criteria.
Moreover, there is no evidence of arbitrary conduct or bad faith
on the part of the public officials who considered Ms. Joseph's claim.
17. It is
further submitted that Article V does not grant a right to enter or
reside in a country, particularly where no legal obstacles exist for a
person to establish family life in another country to which that person
is connected. The European
Commission and the Court of Human Rights have repeatedly interpreted
Article 8 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (the "European Convention") in this
fashion. The case of Abdulazia, Cabales and Balkandali
((15/1983/71/107-9) Series A, vol. 94), cited by the petitioner,
provides a clear illustration. The
three applicant wives, who were lawfully, and permanently settled in the
United Kingdom, alleged in part, a violation of Article 8 because of the
government's refusal to permit their non-national husbands to enter or
remain in the United Kingdom. The
European Court noted firstly, that "as a matter of well-established
law, and subject to its treaty obligations, a State has the right to
control the entry of non-nationals into its territory." (at p. 34.)
The Court also noted that:
The duty imposed by Article 8 cannot be considered as extending
to a general obligation on the part of a Contracting State to respect
the choice by married couples of the country of their matrimonial
residence and to accept the non-national spouses for settlement in that
country. (At p. 34.)
Because each of the applicant wives could establish a family life
in another country in which they or their husbands had a connection, the
Court held that there was no violation of Article 8 of the European
Convention. However, the applicants were successful on the grounds that
the Immigration Rules made it easier for a male resident of the United
Kingdom to obtain permission for his non-national spouse to enter or
remain in that country, than for a female resident of the United
Kingdom. The Rules thus
discriminated on the grounds of sex in the enjoyment of the right
protected by Article 8. It
was this discrimination, contrary to Article 14 of the European
Convention, which the Court found abusive.
Similarly, in Agee v. United Kingdom ((7729/76) DR 7, 164)
the complainant alleged, in part, that his deportation would
adversely affect his family life contrary to Article 8 of the European
Convention. The Commission
declared this allegation manifestly ill-founded on the following basis:
The applicant and his common-law wife, who have apparently been
living together in England since 1973, are both aliens and are of
different nationality. They
have been residents in the United Kingdom on a temporary basis and it
has not been
shown that they will be unable to make reasonable arrangements to live
together outside the United Kingdom, ever if they would prefer to
remain. Where in such
circumstances the wife has the possibility of following her
husband out of the country, this does not in the Commission's
opinion constitute an interference with family life contrary to Art.
8(1) ... (At pp. 173-4.)
Another illustration is provided by X and Y v. United Kingdom
((5269/71) CD 39, 104). The
Commission there held that in some circumstances, exclusion of a person
from a country where close family members are living may amount to an
infringement of Article 8 of the European Convention (e.g., where the
only legal residence a couple can find is in a country unconnected with
either of them). However,
such was not the case where the complainant husband was being deported,
but his wife was able to follow. This
was so even though the wife was a citizen of the United Kingdom, and had
very "close attachments" to her parents with whom the couple
lived in the United Kingdom. (See also X and X v. United Kingdom
(5445/72 and 5446/72) CD 42, and X v. United Kingdom (5301/71) CD
The United Nations Human Rights Committee has interpreted the
relevant provisions of the International Covenant on Civil and Political
Rights (the "Covenant") in much the same fashion. At issue in Aumeeruddy-Cziffra v. Mauritius
(Communication Nº 35/1978), a case cited by the petitioner, were
statutes which granted virtually automatic residence to alien wives of
male nationals, but required residence permits for foreign husbands of
female nationals. These
permits could be refused or withdrawn at any time, upon which the
husbands could be deported without judicial review.
The Human Rights Committee did not hold that restrictions
on the entry of foreign spouses was in and of itself an interference
with the family, contrary to Articles 2(1), 3 and 26 of the Covenant, in
relation to the way its nationals could exercise the rights protected by
Articles 17 and 23:
Though it might be justified for Mauritius to restrict the access
of aliens to their territory and to expel them from there for security
reasons, the Committee is of the view that the legislation which only
subjects foreign spouses of Mauritian women to those restrictions, but
not foreign spouses of Mauritian men, is discriminatory with respect to
Mauritian women and cannot be justified by security requirements."
This interpretation is also consistent with the Human Rights
Committee's General Comment 16 (on Article 17), also cited by the
petitioner. Regardless of
how broad an interpretation is given to "family," the right in
Article 17 does not grant the petitioner and her children a right to
enter and reside in a country of their choice, particularly where they
have status in and connections to their country of origin.
The petitioner also cited three other European cases in support
of her position. It is
submitted that they are not similar to the circumstances in question in
that they do not involve the right of an individual to enter a country.
Moustaguim v. Belgium ((31/1989/191/291) Series A, Vol.
93) concerned reparations for a 5 year deportation, as a consequence of
criminal conduct, of a youth who already had resident status in Belgium.
The deportation order, which the Court considered
disproportionate to the offenses, resulted in the complainant's
separation from his parents, and siblings after having spent virtually
his whole life in Belgium.
The cases of Beldjoudi v. France ((55/1990/246/317) Series
A, Vol. 234-A) and of Djeroud v. France ((34/1990/225/289) Series
A, Vol. 191) also involved deportations, as a result of criminal
conduct, of individuals with resident status in France.
Again, the complainants had spent most of their lives in France
(in both cases, nearly 40 years) and consequently, did not have any
family or social links with their country of origin, Algeria.
Thus, deportation was considered disproportionate to the state's
aim of preventing crime, and disorder. ( Ultimately, the European Court
did not address the issue because, in the interim, there had been a
friendly settlement between the parties.)
The importance of distinguishing in the application of Article 8
between a complainant with resident status in a particular country, and
one who is simply seeking entry, was emphasized in Berrehab v.
Netherlands ((3/1987/126/177) Series
A, Vol. 138). The
complainant, a Moroccan national, had been granted a visa by the
Netherlands authorities to allow him to live with his Dutch wife.
After he and his wife divorced, the authorities refused further
visas even though the complainant had extensive visiting rights with the
young daughter of the marriage. In
finding a violation of Article 8, the Court stated:
... it must be emphasized that the instant case did not concern
an alien seeking admission to the Netherlands for the first time but a
person who had lawfully lived there for several years ...
26. It is
submitted, based on the above case law, that the petitioner has failed
to demonstrate a breach of Article V of the Declaration. There has been no arbitrary or abusive conduct on the part of
Canadian officials. Moreover,
Article V is not intended to interfere with the general right of states
to determine immigration policies and conditions of entry for aliens.
Therefore, it is submitted that Article V cannot be invoked by
Ms. Joseph for the purpose of obtaining first-time residence for her,
and her children in Canada, particularly where she is able to return to
her country of origin, Trinidad. Ms.
Joseph has connections to and family in Trinidad, and has in fact lived
many more years there than in Canada.
She is not being separated from her children, as they are
required to leave with her. It
is therefore submitted that the petitioner has failed to demonstrate
even a prima facie violation Article V and that the petition
should be declared inadmissible under Article 41 of the Regulations.
Article VI: Protection Of The Family:
The petitioner alleges a violation of Article VI of the
Declaration because she and her family have not been granted permission
to reside in Canada. It is
submitted that for the reasons given in the immediately preceding
section, Article VI is also inapplicable to the petitioner's
circumstances. It is
submitted that the protection of the family does not include a right of
a family to choose their preferred country of residence.
This is particularly so where all members of the family have
legal status in their country of origin and do not risk persecution
there. In this regard,
reference should be made to the decision of Aumeeruddy-Cziffra v.
Mauritius, discussed above. In
considering the parallel guarantee under the Covenant, the Human Rights
Committee stated that protection of the family did not preclude a state
from restricting access by aliens to its territory.
Article VII: Protection Of Pregnant Women And Children:
It is again submitted that the petitioner has failed to
demonstrate any facts which would support a violation of Article VII of
the Declaration. The
protection in this Article does not entitle the petitioner to select her
country of residence.
Article XVIII: Resort To The Courts:
It is also alleged by the petitioner that she was denied the
right in Articles XVIII of the Declaration to resort to the courts for
violations of legal or fundamental constitutional rights.
This Article obliges states to ensure to individuals an effective
means of judicial recourse for the determination of rights. (Sieghart,
Paul, "The International Law of Human Rights," Clarendon
Press: Oxford, 1983.) The
Government of Canada submits that not only are effective legal, and
judicial remedies available in Canada, but they have in fact been
employed by the petitioners. As
discussed above, Ms. Joseph received an oral hearing before an
independent, impartial panel to determine whether she had a credible
basis for her Convention refugee claim. (Persons in the backlog process
only need to demonstrate a "credible basis," not that they are
in fact Convention Refugees.)
She had the benefit of the right to counsel, as well as the full
range of due process guarantees. These
included the right to receive a copy of the information on which the
inquiry was based, to present evidence, to examine, and cross-examine
witnesses, to use an interpreter, if necessary, and to know the basis on
which the removal order was issued.
As well, Ms. Joseph had the option of seeking leave to appeal the
panel's decision to the Federal Court of Appeal, although she chose not
to exercise that option. In
addition, Ms. Joseph received the benefit of two humanitarian, and
compassionate reviews. She could also have sought judicial review of these
decisions, with leave, by the Federal Court of Appeal, but she chose not
to do so. Based on the
above, it is submitted that not only is Canadian law consistent with the
right delineated in Article XVIII of the Declaration, but that the
petitioner had the full benefit, and use of that right.
There is thus no evidence of a violation of article XVIII.
Article XXVII: Right Of Asylum:
Article XXVII of the American Declaration provides a right to
seek and receive asylum in accordance with domestic laws and
international agreements. The
international instrument of greatest relevance to the current
circumstances is the "United Nations Convention Relating to the
Status of Refugees." As
indicated above, its obligations have been incorporated into the
Immigration Act. Clearly,
Ms. Joseph exercised her right to seek asylum.
She did not receive asylum because an independent, and impartial
panel determined that she had not demonstrated a credible basis on which
she might be found to be a Convention refugee.
In addition, several humanitarian, and compassionate reviews of
Ms. Joseph's case were conducted to determine whether there existed
extraordinary circumstances warranting her residence in Canada, despite
the fact that she did not meet the legal requirements for refugee
32. It is
relevant to note that the case of Maroufidou v. Sweden,
Communication No. 13/58 under the "United Nations Optional Protocol
to the International Covenant on Civil and Political Rights."
In that case, the communicant claimed that her deportation on the
grounds that there were good reasons to believe she would participate in
Sweden in a terrorist act, violated Article 13 of the Covenant.
Article 13 provides that:
An alien lawfully in the territory of a State Party ... may be
expelled therefrom only in pursuance of a decision reached in accordance
with law and shall, except where compelling reasons of national security
otherwise require, be allowed to submit the reasons against his
The Human Rights Committee held that there had been no violation
of the Covenant because the communicant was expelled in accordance with
the procedure laid down by the State's domestic law, and there had been
no evidence of bad faith or abuse of power.
Importantly, the Human Rights Committee concluded that where an
alien was expelled in accordance with the procedure laid down by the
state's domestic law, it was not for the Committee to evaluate whether
the competent authorities of the state had correctly interpreted and
applied that law, unless it was established that they had acted in bad
faith or abused their power.
The Government of Canada submits that the reasoning of the Human
Rights Committee is applicable to the current circumstances.
The decision not to grant Ms. Joseph refugee status was made in
accordance with domestic, and international law. There is no evidence of an abuse of power by Canadian
authorities, and absent the interpretation, and application by those
authorities of Canadian law. Accordingly,
it is submitted that there is no evidence of a violation of Article
XXVII of the Declaration.
Refugee Backlog Process:
A wide variety of allegations are made in the petition against
the refugee backlog procedure in general.
However, no evidence is presented to support these allegations,
and accordingly, it is submitted that the petition should be dismissed
by the Inter-American Commission as manifestly groundless pursuant to
Article 41 of the Regulations.
conclusion, the Government of Canada submits that the present petition
should be declared inadmissible pursuant to the Commission's Regulation.
However, if the Commission should reach a contrary conclusion on
any of the above submissions, the Government of Canada reserves the
right to make further submissions at a later date.
The two issues raised in this petition are as follows:
this petition admissible?
the facts as alleged constitute violations of human rights recognized in
the American Declaration of the Rights and Duties of Man?
THIS PETITION ADMISSIBLE?
Immediately prior to the submission of this petition both parties
submitted several exhibits outlining the procedures of Canada's
Immigration Act, a copy of Canada's Immigration Act as amended in 1989,
a copy of the Canada Act 1982 including a copy of the Constitution Act
of Canada 1982, in which Part I contain provisions of the Canadian
Charter of Rights And Freedoms, Court Judgments, and other documentation
which have been considered by the Commission, are relevant, material,
and which will be utilized in the determination of this petition. In order to determine whether this petition is admissible it
is necessary examine the relevant Articles which are applicable to this
case. Article 37 of the
Regulations of the Commission provide that:
a petition to be admitted by the Commission, the remedies under domestic
jurisdiction must have been invoked and exhausted in accordance with the
general principles of international law.
provisions of the preceding paragraph shall not be applicable when:
domestic legislation of the State concerned does not afford due process
of law for protection of the right or rights that have allegedly been
party alleging violation of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them;
has been unwarranted delay in rendering a final judgment under the
the petitioner contends that he is unable to prove exhaustion as
indicated in this Article, it shall be up to the government against
which this petition has been lodged to demonstrate to the Commission
that the remedies under domestic law have not previously been exhausted,
unless it is clearly evident from the background information contained
in the petition.
examination of Article 46 of the American Convention on Human rights is
necessary here, because it reflects most of the provisions of Article 37
of the Commission's Regulations, notwithstanding that it is not the
controlling instrument because Canada has not yet ratified the
Convention. Article 46
by the Commission of a petition or communication lodged in accordance
with Articles 44 or 45 shall be subject to the following requirements:
the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law;
the petition or communication is lodged within a period of six months
from the date on which the party alleging violation of his rights was
notified of the final judgment;
the subject of the petition or communication is not pending in another
international proceeding for settlement; and
in the case of article 44, the petition contains the name, nationality,
profession, domicile, and signature of the person or persons or of the
legal representative of the entity lodging the petition.
Article 2 provides that "the provisions of paragraphs 1.a
and 1.b of this article shall not be applicable when:
domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly
party alleging violation of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them;
has been unwarranted delay in rendering a final judgment under the
Petitioners assert that Mrs. Joseph has a number of rights under
the American Declaration which will be violated in expulsion from
Canada. These Articles are, V, VI, VII, XVIII, and XXVII.
V provides that: Every
person has the right to the protection of the law against abusive
attacks upon his honor, his reputation, and his private and family life.
VI provides that: Every person has the right to establish a family, the
basic element of society, and to receive protection thereof.
VII provides that: All women, during pregnancy and the nursing period,
and all children have the right to special protection, care and aid.
XVIII provides that: Every person may resort to the courts to ensure
respect for his legal rights. There
should likewise be available to him, a simple, brief procedure whereby
the courts will protect him from acts of authority that, to his
prejudice, violate any fundamental constitutional rights.
XXVII provides that: Every person has the right, in case of pursuit not
resulting from ordinary crimes, to seek and receive asylum in foreign
territory, in accordance with the laws of each country and with
examination follows on what domestic remedies were available to Mrs.
Joseph in Canada in order ascertain whether she should have invoked and
exhausted those remedies Canada, prior to the submission of her
petition. After arriving in
December 16, 1987, Mrs. Joseph applied for refugee status in March of
1988. During the pendency of her claim, there existed three sets of
immigration procedures under the Immigration Act as amended in Canada.
The first being the Immigration Procedure for regular immigration
claims, such as permanent residency and citizenship claims, but not
limited to these claims. The
second being the Convention Refugee Procedure for dealing with claims of
persons claiming to be Convention Refugees.
The third being a procedure under the Immigration Act of 1989 as
amended called the "Refugee Claimants Designated Class
Regulations" often referred to as the "Refugee Claimants
is undisputed by both parties that the "Refugee Claimants Backlog
Procedure was established to deal with the large number of claims for
refugee status under the "Convention Refugee" procedure, and
in order to expedite the processing of such claims.
Claimants were encouraged to apply to have their claims processed
under this procedure which it is alleged would result in a simple,
swift, and brief procedure. In
opting to have their claims processed under this procedure, it is
alleged that claimants in effect gave up their rights to appeal to the
Refugee Appeals Division of the Immigration Board.
Instead they could with leave appeal directly to the Federal
District Court Trial Division, or with leave to the Appellate Division
of the Federal Court.
Mrs. Joseph's claim was processed under the expedited process,
the "Refugee Claimants Backlog Procedure." She had her initial
humanitarian, and compassionate interview on March 27, 1992.
Thus the controlling instruments applicable to her claim for
refugee status are the Immigration Act of Canada 1985" as amended
in 1989, and the Regulations made thereunder which is titled, the
"Refugee Claimants Designated Class Regulations," often
referred to as the "Refugee Claimants Backlog Procedure." The
relevant sections applicable to the class Mrs. Joseph fell under are
Sections 6(2) and Sections 114(1)(d), and 114(2).
Section 6(2) of the Immigration Act 1989 as amended provides
Any Convention refugee and any person who is a member of a class
designated by the Governor in Council as a class, the admission of
members of which would be in accordance with Canada's humanitarian
tradition with respect to the displaced and the persecuted, may be
granted admission subject to such regulations as maybe established with
respect thereto and notwithstanding any other regulations made under
this Act." 1976-77,c.52.6.
The term "Convention Refugee" is defined its definition
section under two headings, "Convention," and "Convention
is defined as meaning, "the United Nations Convention Relating to
the Status of Refugees signed at Geneva on July 28, 1951, and includes
the Protocol thereto signed at New York City on January 31, 1967;"
"Convention refugee" means, "any person who
reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or
outside the country of the person's nationality and is unable or, by
reason of that fear, is unwilling to avail himself of that protection of
that country, or
having a country of nationality, is outside the country of the person's
former habitual residence and is unable or, by reason of that fear, is
unwilling to return to that country, and
not ceased to be a Convention refugee by virtue of subsection (2), but
does not include any person to whom the Convention does not apply
pursuant to section E or F of Article 1 thereof, which sections are set
out in the schedule to this Act;
Section 114(1)(d) of the Act provides that:
The Governor in Council may make regulations designating classes
of persons for the purposes of Subsection (6)(2).
Article 114(2) provides that:
The Governor in Council may by regulation exempt any person from
any regulation made under subsection (1) or otherwise facilitate the
admission of any person where the Governor in Council is satisfied that
the person should be exempted from the regulation or the person's
admission should be facilitated for reasons of public policy or due to
the existence of compassionate or humanitarian considerations."
Upon the conclusion of Mrs. Joseph's initial interview on
humanitarian and compassionate grounds no grounds were found to warrant
granting her "status" to remain in Canada.
Because this was a discretionary review Mrs. Joseph had the right
to file an application for leave to seek judicial review of this
decision in the Federal Court Trial Division, under Section 18 of the
Federal Court Act. Section
18 of the Act provides that "the Trial Division has exclusive
issue an injunction, writ of certiorari, writ
of prohibition, writ of mandamus or writ of quo warranto, or
grant declaratory relief, against any federal board, commission or other
hear and determine any application or other proceeding for relief in the
nature of relief contemplated by paragraph (a), including any proceeding
brought against the Attorney General of Canada, to obtain relief against
a federal board, commission or other tribunal." R.S.c. 10(2nd
Mrs. Joseph could also have sought judicial review of this
decision under Section 28 of the Federal Court Act.
She could have done so by filing an application for leave for
judicial review in the Federal Court Appellate Division, on the grounds
that the principles of natural justice were not complied with.
Section 28 provides that:
Notwithstanding section 18 or the provisions of any other Act,
the Court of Appeal has jurisdiction to hear and determine an
application to review and set aside a decision or order, other than a
decision or order of an administrative nature not required by law to be
made on a judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other tribunal, on the
ground that the board, commission or tribunal:
to observe a principle of natural justice or otherwise acted beyond or
refused to exercise its jurisdiction;
in law in making its decision or order, whether or not the error appears
on the face of the record: or
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before
However, she did not seek review of this decision
either under Section 18 or Section 28 of the Federal Court Act.
On October 29, 1992, a "credible basis" hearing was
held before an adjudicator, and an Immigration and Refugee Board member.
The factors which must be taken into consideration on which a
finding of "credible basis" can be made are set out in Section
46.01 of the Immigration Act. Section
46.01(6) provides that:
If the adjudicator or the member of the Refugee Division, after
considering the evidence adduced at the inquiry or hearing, including
record with respect to human rights of the country that the claimant
left, or outside of which the claimant remains, by reason of fear of
under this Act or the regulations of claims to be Convention refugees
made by other persons who alleged fear of persecution in that country,
is of the opinion that there is any credible or trustworthy
evidence on which the Refugee Division might determine the claimant to
be a Convention refugee, the adjudicator or member shall determine that
the claimant has a credible basis for the claim."
13. In Mrs.
Joseph's case neither the adjudicator nor the Immigration Board member
concluded that she had a "credible basis" for her claim to
refugee status. At this
hearing Mrs. Joseph did not have to prove that she was a
"Convention Refugee," she only had to establish that she had a
"credible basis" for her claim of refugee status.
The Government stated in its reply to the petition that she had
the benefit of Counsel at this hearing, the right to receive a copy of
the information on which the inquiry was based, the right to present
evidence, the right to examine, and cross-examine witnesses, the right
to use an interpreter if necessary, and to know the basis on which the
removal was issued. Mrs.
Joseph could again have sought judicial review of the Refugee Board's
decision, pursuant to Sections 18 and 28 of the Federal Court Act but
Mrs. Joseph received her final humanitarian and compassionate
review on December 7, 1992, and it was found that there were no
extraordinary grounds warranting a departure from the usual requirements
of the Immigration Act. Given
the choice of a "deportation order" or a "departure
notice," to leave Canada, she chose a "departure notice"
which is a voluntary act of removing herself and children from Canada,
and which would not bar her from seeking future admittance to Canada.
A departure notice was then issued requiring that she and her
four children leave Canada by December 13, 1992.
The definition section provides that a "removal order"
means "an exclusion order or a deportation order.
Mrs. Joseph could again have filed an application for judicial
review of this order under Sections 18 and 28 of the Federal Court Act. Furthermore, under the Immigration Act as amended in 1989,
Article 82(1) which provides that:
An application or other proceeding may be commenced under section
18 or 28 of the Federal Court Act with respect to any decision or order
made, or any other matter arising, under this Act or the rules or
regulations only with leave of a judge of the Federal Court - Trial
Division or the Federal Court of Appeal, as the case may be.
Therefore, Mrs. Joseph could have sought leave to make an
application for judicial review of this final humanitarian and
compassionate review, and against the removal order, because the section
states that "an application or other proceeding may be commenced
under section 18 or 28 of the Federal Court Act with respect to any
decision or order made, or any other matter arising, under this Act or
the rules or regulations..."
However, a time limit is imposed under Section 82.1(3)of the Act
which provides that:
An application under this section for leave to commence a
proceeding shall be filed with the appropriate Court within fifteen days
after the day on which the applicant is notified of the decision or
order or becomes aware of the other matter.
Thus, the application for leave to seek judicial review of the
Board's decision has to be filed within fifteen days.
The Act further provides under Section 82.1(6) that:
A judge of the appropriate Court may, for special reasons, allow
an extended time for filing an application under this section for leave
to commence a proceeding or for commencing the proceeding.
Thus, if the application to seek leave for judicial review was
not filed within the 15 days time limit, a later application can be made
to the Federal Court to extend the 15 days time limit to seek judicial
review if there are special reasons for not filing within this time
limit. Furthermore, the Act
provides for a "stay of execution of the removal order when certain
conditions are met. Article
49 provides as follows:
49(1) Except in the
case of a person residing or sojourning in the United States or St.
Pierre and Miquelon against whom a removal order is made as a result of
a report made pursuant to paragraph 20(1)(a), "the execution of
a removal order is stayed."
any case where the person against whom the order was made has a right of
appeal to the Appeal Division, at the request of that person until
twenty-four hours have elapsed from the time when the person was
informed pursuant to section 36 of the right of appeal;
any case where the person against whom the order was made has a right to
file an application for leave to commence an application or other
proceeding under section 18 or 28 of the Federal Court Act in respect of
the order, at the request of that person until seventy-two hours have
elapsed from the time when the order was pronounced;
any case where an appeal from the order has been filed with the Appeal
Division, until the appeal has been heard and disposed of or has been
declared by the Appeal Division to be abandoned.
Therefore, if Mrs. Joseph had exercised her right and filed an
application for leave to commence proceedings against the removal order,
it would have the effect of staying the execution of the removal order
for seventy-two hours from the time when the order was pronounced.
(Article 49(1)(b)). The
Act further provides for, and outlines the right to Counsel in Article
30(3). It provides that:
Article 30(3) of the Act provides that:
In such cases as, are prescribed, a person against whom a removal
order is made, or to whom a departure notice is issued shall be
represented, at the Minister's expense, with respect to any application
for leave to commence an application under section 28 of the Federal
Court Act in relation to the removal order or departure notice and with
respect to the application under that section by a barrister or
solicitor who is designated in accordance with the regulations and who
is ready and able to proceed, unless the person is represented by a
barrister or solicitor who is available to take instructions with
respect to such an application
the case of a person against whom a removal order is made, within
twenty-four hours after the making of the order; or
the case of a person to whom a departure
notice is issued, prior to the date on or before which the person
is required to leave Canada.
Thus, Mrs. Joseph had the right to have a Counsel represent her
in her application for leave to commence proceedings against the removal
order. This Counsel could
have been provided for her by the Minister at his or her own expense,
who is defined in the definition section of the Act as meaning,
"such member of the Queen's Privy Council for Canada as is
designated by the Governor in Council as the Minister for purposes of
this Act." Or, she
could have retained her own Counsel who would have to be available
within twenty-four hours after the making of the "removal
order," or in the case of a "departure notice" prior to
the date on or before which she was required to leave Canada.
examination follows on the other relevant Sections of the Act.
82.2(1) provides that "No appeal lies to the Federal Court
of Appeal from a decision of a judge of the Federal Court - Trial
Division on an application under section 82.1 for leave to commence an
application or other proceeding under section 18 of the Federal Court
82.2.(2) provides that "No appeal lies to the Supreme Court
of Canada from a decision of a judge of the Federal Court of Appeal on
an application under section 82.1 for leave to commence an application
under section 28 of the Federal Court Act."
82.1(4) provides "Unless a judge of the appropriate Court
directs otherwise, an application under the section for leave to
commence a proceeding shall be disposed of without personal
82.1(5) provides "Where leave under this section to commence
proceeding is granted, the proceeding shall be commence within fifteen
days after the granting of leave."
Article 50(1)(a) provides that: "A removal order shall not
be executed where the execution of the order would directly result in a
contravention of any other made by any judicial body or officer in
Therefore, although Mrs. Joseph was not required to personally
appear in her application for leave to commence proceedings against the
two decisions denying her right the right to remain in Canada on
humanitarian and compassionate grounds, and the "no credible basis
finding" by the Refugee Board, an application could have been filed
on her behalf to the Federal Court Trial, and Appellate Divisions.
However, in interpreting the above sections, if the application
was to seek leave to file an application for judicial review, and leave
was denied, there would be no right of appeal to the Appellate Division
of the Federal Court, nor to the Supreme Court of Canada.
Moreover, if leave had been applied or an application was pending
before the Court, the execution of the order would be stayed for 72
hours under Section 49(1)(b) discussed above, or where its execution
would contravene the order of a judicial body or officer in Canada.
24. In addition
to the rights and remedies discussed above, Mrs. Joseph has a number of
other rights and remedies provided by the Canadian Charter of Rights,
which are contained in the Canada Act of 1982, and the Constitution Act
of 1982. A brief
examination follows on the relevant rights and freedoms, and the
remedies available to a person physically present in Canada under the
Section 7 provides that:
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.
Section 15(1) provides that:
Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or
Section 24(1) provides that:
Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate
and just in the circumstances.
25. In reviewing
the documentation submitted to the Commission by the parties, the term
"everyone" which is contained in the Charter applies to "everyone
physically present in Canada," and is not limited to persons on
"permanent resident visas" in Canada, nor is it limited to
"Canadian citizens." Thus
from the examination, and discussion above, Mrs. Joseph could have
utilized the domestic remedies available to her in Canada by invoking
and exhausting them, that is by filing an application to seek leave for
judicial review of the three decisions rendered against her, and in
particular, if warranted, on the basis of a violation of natural justice
principles, or have attacked the constitutionality of the Immigration
Act. Furthermore, the
arguments contained in the petition raised by the petitioners with
regard to violations of the rights contained in the Canadian Charter of
Rights could have been raised by the petitioner before the Courts.
The question to be asked here is whether the domestic remedies
examined above would have been adequate and effective to address Mrs.
Joseph's claim. This issue
was discussed in the case of Velásquez Rodríguez, by the
Inter-American Court of Human Rights, with regard to a state's domestic
remedies which must be invoked and exhausted "in accordance with
the general principles of international law."
The Court in construing Article 46(1)(a) of the American
Convention on Human Rights, page 114, paragraph 63, that "Article
46(1)(a) of the Convention speaks of "generally recognized
principles of international law." Those principles refer not only
to the formal existence of such remedies, but also to their adequacy and
effectiveness, as shown by the exceptions set out in Article
The Court further stated at page, 114, paragraph 64, that
"Adequate domestic remedies are those which are suitable to address
an infringement of a legal right. A
number of remedies exist in the legal system of every country, but not
all are applicable in every circumstance.
If a remedy is not adequate in a specific case, it obviously need
not be exhausted. A norm is
meant to have an effect and should not be interpreted in such a way as
to negate its effect or lead to a result that is manifestly absurd or
unreasonable. For example,
a civil proceeding specifically cited by the governments, such as a
presumptive finding of death based on disappearance, the purpose of
which is to allow heirs to dispose of the estate of the person presumed
deceased or allow the spouse to remarry, is not an adequate remedy for
finding a person or for obtaining his liberty." (I/A Court H.R.,
Judgment of July 29, 1988, Series C:4)
28. At page 115,
paragraph 66, the Court stated that " a remedy must also be
effective -- that is, capable of producing the result for which it as
requirements can make the remedy of habeas corpus ineffective: if it is
powerless to compel the authorities; if it presents a danger to those
who invoke it; if it is not impartially applied."
The Court went on to state on the same page paragraph 67, that,
"on the other hand, contrary to the Commission's argument, the mere
fact that a domestic remedy does not produce a result favorable to the
petitioner does not in and of itself demonstrate the inexistence or
exhaustion of all effective domestic remedies.
For example, the petitioner may not have invoked the appropriate
remedy in a timely fashion."
Thus, from the examination, and discussion above, domestic
remedies were available to Mrs. Joseph in Canada against the initial
humanitarian and compassionate interview, the "credible basis"
hearing, and the final humanitarian and compassionate review, and the
removal order. These remedies should have been invoked and exhausted by
filing an application to seek leave for judicial review of these
decisions, under the Immigration Act as amended, on principles of
natural justice, by challenging the constitutionality of Act, and for
alleged violations the rights and freedoms provided under the Canadian
The petitioners raised a number of arguments related to
"family considerations" which are reviewable by the
Immigration Review board under the "Convention Refugee
Procedure," where the claimants have to demonstrate that they are
in fact Convention Refugees, and which imposes a heavier burden.
Mrs. Joseph's claim was
not dealt with under that process.
Her claim was processed under the "Refugee Backlog
Procedure," where only "a credible basis" standard is
applied, and she did not have to demonstrate that she was in fact a
Based on the facts of this particular case, the examination and
discussion above focused on the domestic remedies that were available to
Mrs. Joseph under the Immigration Procedure under which her claim was
processed and which as discussed above, was the "Refugee Claimants
Designated Class Regulations," referred to as the "Refugee
Claimants Backlog Procedure."
Having examined the domestic remedies available to Mrs. Joseph
under that process, the petitioners have not demonstrated that the
domestic remedies available to her in Canada were "inadequate and
ineffective," and therefore she should be excused from invoking and
exhausting them as provided by Article 37(2) of the Commission's
Regulations discussed above. Thus,
for these reasons, and as discussed above the petition is inadmissible,
and therefore a decision would not be rendered on the merits of the
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
HAVING CONSIDERED the domestic remedies available to Mrs. Joseph
under the procedures reviewed above, and BEARING IN MIND the
humanitarian aspects of this case,
INVITES the Government of Canada to give favorable consideration
to the possibility of permitting Mrs. Joseph to remain in Canada until
the completion of the court actions brought in connection with the
estate of her late husband,
CONCLUDES that the petition is inadmissible.