Illegal Immigrants Do Not Have a Charter Right to Health Care

Posted on July 17, 2011 by Steven Meurrens

In a case that has generated media publicity, the Federal Court of Appeal has ruled that illegal immigrants do not have a Charter right to health care. The facts in Toussaint v. Canada, 2011 FCA 213, were simple. In 1999, the appellant entered Canada as a visitor. She never left, and never attempted to normalize her status. In 2006, her health began to deteriorate. In 2009, she applied to Citizenship and Immigration Canada for medical coverage under the Interim Federal Health Program (the “IFHP”). Her request was denied, as the IFHP is limited to refugee claimants, resettled refugees, persons detained under the Immigration and Refugee Protection Act, and Victims of Trafficking in Persons.

The Federal Court of Appeal found that the appellant met none of these conditions, and that the IFHP could not have been intended to pay for the medical expenses of those who arrive as visitors but remain illegally in Canada.

A significant portion of the judgment related to Charter arguments regarding whether denying illegal immigrants access to the IFHP breached the right to life and security of the person (s. 7 of the Charter) or the right to equality (s. 15 of the Charter).

The Right to Life and Security of the Person Challenge

Section 7 of Canada’s Charter of Rights and Freedoms states that:

Life, liberty and security of person

7. 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.

The Federal Court of Appeal did not disagree with the appellant’s assertion that the denial of health care coverage expose her to significant risk to life and health, or that the risk was significant enough to trigger a violation of her rights to life and security of the person. It did, however, determine that the denial of health care coverage was not the operative cause of the injury to her rights to life and security. Rather, it found that the Appellant staying in Canada illegally was the main reason that her life and security of the person was affected.

Furthermore, the Federal Court of Appeal reiterated what has become the accepted jurisprudence that the Charter does not confer a freestanding constitutional right to health care, and that the courts can (and frequently do) deny claims under the Charter to obtain state funding or financial assistance for necessary treatments.

The Equality of Person Challenge

15. (1) 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 physical disability.(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Although “immigration status” is not mentioned as a prohibited ground for discrimination in s. 15, the courts do have the ability to read in analogous grounds. In Egan v. Canada, for example, the Supreme Court of Canada held that sexual orientation is an analogous ground.

Unfortunately for the appellants, the Federal Court of Appeal did not accept that immigration status qualifies as an analogous ground under s. 15 of the Charter, primarily because immigration is not a characteristic that an individual cannot change. The court noted that it is not immutable or changeable only at unacceptable cost to personal identity. Indeed, the court noted that immigration status is a characteristic that the government has a legitimate interest in expecting a person to change.

There were other reason for dismissing the s. 15 Charter argument, including that the policy did not stigmatize or expose illegal immigrants to prejudice, however, the above is probably the most significant in terms of developing obiter dicta.

Asking the Embassy to Re-Consider an Application (Updated)

Posted on June 2, 2011 by Steven Meurrens

You check your mail box. There’s a letter from Citizenship and Immigration Canada. Your heart starts to beat faster. You open the letter. It says that your application was rejected.

You immediately think, “I should have told them about this special circumstance that just arose or this factor that I didn’t mention!”

You want to write the officer to ask him to reconsider, but you don’t know… can you even do that?

The Doctrine of Functus Officio

Functus Officio, latin for “having performed his office”, is a legal term used in the judicial context to describe the principle that a court retains no legal authority once its duties and functions have been completed. It generally means that a judge cannot re-open proceedings that have been completed.

Does the functus officio rule mean that immigration officer cannot re-open or reconsider applications that they have rejected if requested to do so by applicants?

The Kurukkal Decision

In Canada (Minister of Citizenship and Immigration) v. Kurukkal, 2010 FCA 230, recently affirmed in Young Marr v. Canada, 2011 FC 367, the Federal Court of Appeal answered this question in the negative.

Mr. Kurukkal’s application under section 25 of the Immigration and Refugee Protection Act for relief on humanitarian and compassionate grounds had been rejected. He then wrote to the immigration officer asking him to reconsider the decision.

The Officer refused to reconsider the application on the basis that the principle of functus officio “means that once a decision is taken, the decision-maker has no more authority on the matter.”

The Federal Court of Appeal, however, found that functus officio does not strictly apply in non-adjudicative administrative proceedings. In appropriate circumstances, such as where there are s. 25 submissions in the immigration context, discretion does exist to enable an administrative decision-maker to reconsider his or her decision.

The Marr decision seems to expand the possibility of submitting reconsideration applications even further. There, Justice Zinn ruled that an immigration officer erred in refusing to exercise her discretion to hear a reconsideration application in a Federal Skilled Worker case. Justice Zinn noted that:

[57] A final observation. Basic fairness and common sense suggest that if a visa officer, within days of rendering a negative decision on an application that has been outstanding for many years, receives a document confirming information already before the officer that materially affects the result of the application, then he or she should exercise his or her discretion to reconsider the decision. Nothing is served by requiring an applicant to start the process over and again wait years for a result when the application and the evidence is fresh in the officer’s mind and where the applicant is not attempting to adduce new facts that had not been previously disclosed.

The Implication

Generally, when an officer has refused or rejected an application the applicant can only re-apply, file a judicial review, or, if applicable, appeal to the Immigration Appeal Division.

However, this recent jurisprudence indicates that immigration officers have the ability to reconsider decisions where there are s. 25 submissions.

This is potentially a great avenue for applicants, and one that anyone applying for a visa should be aware of.

Appealing IRPA Decisions to the Federal Court of Appeal

Posted on January 17, 2011 by Steven Meurrens

Generally, when the Federal Court makes a decision on an immigration matter, the decision is final. As most lawyers tell their clients at the outset, there is no right to appeal a Federal Court decision unless the Federal Court certifies an issue raised in the litigation as being a question of general importance. However, it is important that representatives be familiar with some exceptions to this rule.

Section 74(d) of the Immigration and Refugee Protection Act (“IRPA”) provides that a litigant cannot appeal a Federal Court decision to the Federal Court of Appeal unless, in rendering judgment, the Federal Court judge certifies that a serious question of general importance is involved. This does not necessarily, however, preclude an appeal under section 27 of the Federal Courts Act where the Federal Court judge has engaged in certain, limited, actions.

Examples of where the Federal Court of Appeal has heard an immigration related appeal without the Federal Court certifying a question include the following:

Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 1

Whether a Federal Court judge erred in applying section 87 of IRPA to order the return of disputed documents that were inadvertently disclosed by the government to the applicant. Section 87 of IRPA provides that:

Application for non-disclosure — judicial review

87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies to the proceeding with any necessary modifications.

The Applicant argues that the return of documents which were inadvertently disclosed falls under the Canada Evidence Act, not IRPA, and that therefore she can appeal to the Federal Court of Appeal without there being a certified question.

Subhaschandran v. Canada (Solicitor General), 2005 FCA 27

An individual had sought judicial review of a negative pre-removal risk assessment. The individual also sought a stay of removal until the judicial review application was completed. The Federal Court adjourned the stay of removal issue until after the judicial review of the negative PRRA was complete. In effect, the motions judge refused to decide on the stay of removal matter until the issue was moot.

The Minister appealed the motion judge’s decision to the Federal Court of Appeal. The Court of Appeal carved out an exception to s. 74(d) of IRPA. It noted that while generally interlocutory orders including adjournments cannot be appealed in the immigration context, there is an exception where a judge refuses to exercise his discretion and deal with the case. This amounted to a refusal to exercise jurisdiction. The Court further noted that a remedy must be available to any party where a judge simply refuses to deal with a matter before him either permanently or by adjourning the matter to a time when the matter will be moot.

Horne v. Canada (Minister of Citizenship and Immigration), 2010 FCA 337

Where it was held that section 74(d) does not apply to allegations of judicial bias.

Horne v. Canada (Minister of Citizenship and Immigration), 2010 FCA 55

Similar to Subhachandran, except that the Federal Court of Appeal found that the Motions judge had decided on the matter.

This is of course an incomplete, and growing, list. As more cases are discovered, they will be added.

Espionage and Immigrating to Canada

Posted on July 29, 2010 by Steven Meurrens

On July 19, 2010, the Federal Court in Peer v. Canada (Citizenship and Immigration), 2010 FC 752 certified the following question:

Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?

On March 9, 2011, the Federal Court of Appeal answered. The answer is yes.

US War Deserters – Immigrating to Canada

Posted on July 12, 2010 by Steven Meurrens

In a decision that has received much media attention, the Federal Court of Appeal on July 6, 2010, released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177.

The case involved an American soldier who for moral and religious beliefs was against “all participation in war”. (Note to Appellant: Next time pick your career more wisely.) In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada. He originally claimed refugee status, a claim which was unsuccessful.

He then made a Pre-Removal Risk Assessment application, and an application for permanent residence based on Humanitarian & Compassionate grounds. The appellant argued that if he were subjected to a court-martial proceeding and charged with being AWOL or desertion, then he would receive a more severe punishment than other deserters because of his decision to publicly speak out against the Iraq War. He also maintained that he would be a prisoner of conscious.

The Immigration Officer rejected the PRRA application. She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Immigration Officer also rejected the H&C argument. The appellant sought leave to appeal of this decision. The Federal Court upheld her decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

How did the Federal Court answer?

Continue reading →

Functus Officio and Appealing to the Federal Court of Appeal

Posted on June 22, 2010 by Steven Meurrens

On June 10, 2010, the Federal Court of Appeal issued its decision in Canada (Citizenship and Immigration) v. Arif, 2010 FCA 157. The majority and concurring opinions discussed two procedural rules that will interest appeals lawyers. The first was when a Federal Court determination regarding a Citizenship Judge’s decision can be appealed. The second was the relationship between section 399(2) of the Federal Court Rules and the principle of functus officio.

When can a Federal Court Order Regarding a Citizenship Judge’s Opinion be Appealed to the Federal Court of Appeal?

Section 14 of the Citizenship Act regulates appeals from Citizenship judges. Subsections 5 and 6 provide that:

Appeal

(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which

(a) the citizenship judge approved the application under subsection (2); or

(b) notice was mailed or otherwise given under subsection (3) with respect to the application.

Decision final

(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

Subsection six clearly states that the Federal Court of Appeal is precluded from hearing appeals from decisions of the Federal Court pursuant to an appeal of a citizenship judge’s determination. But, does the Federal Court of Appeal have jurisdiction to hear appeals from decisions of the Federal Court reconsidering, or refusing to reconsider, its decisions?

In answering this question, the Court applied the test that it articulated in Canada (Minister of Citizenship and Immigration) v. Saji, 2010 FCA 100. There, the Court ruled that:

…, an appeal from the Federal Court to this Court is only precluded by subsection (6) as a decision made “pursuant to an appeal under subsection (5)” if the decision in question relates to the ultimate question, namely, whether the [C]itizenship [J]udge erred in approving or not approving a citizenship application, or in determining a question related to it.

Applying this test, the Federal Court of Appeal found that a decision not to reconsider the decision of a Citizenship Judge is a question that determines the ultimate question, and hence is not appealable. Accordingly, the Court found that it was without jurisdiction to hear the appeal.