Date: 20060210
Docket: IMM-5311-05
Ottawa, Ontario,
the 10th day of February 2006
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
RAFIA BEGUM, SADHIA SANA,
SAHIMA SANA, NAVIDA SANA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review filed pursuant to section 70 of the Immigration
Act, R.S.C. 1985, c. I-2 (old Act) of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board (the panel) dated August 11, 2005
by Philippe Patry, which dismissed the applicants’ appeal from a deportation
order made against them on September 5, 2001 on account of want of
jurisdiction.
ISSUES
[2]
The only
issue raised by the applicants is the following:
1. Did the panel make an error
warranting this Court’s intervention when it found that the visas granted to
the applicants had been validly cancelled?
[3]
For the
reasons that follow, this application will be dismissed.
FACTUAL BACKGROUND
[4]
The principal
applicant, Rafia Begum, is a citizen of Pakistan who was born on
June 15, 1950. She arrived in Canada with her daughters Sahdia,
Sahima and Navida on June 7, 2001. The applicants held visas issued
pursuant to section 46.04 of the old Act, as dependants of a Convention
refugee.
[5]
Sana Ullah
Choudry, the principal applicant’s husband and father of the other applicants,
obtained Convention refugee status on June 2, 2000. He at once took steps to
obtain permanent resident status. The applicants obtained visas on April 24,
2001 and left their residence for Islamabad on June 5, 2001.
[6]
Also on
June 5, 2001, Kaman Ashraf, an immigration officer with the Canadian High
Commission in Islamabad, allegedly telephoned the residence of the principal
applicant to tell her that the visas had been cancelled and to ask her to
return them. The immigration officer alleged he spoke with a woman who
identified herself as the principal applicant and who told him that she or her
son Ehsanullah would bring the visas back in person the following day.
[7]
The
applicants stated that the immigration officer was lying and that under no
circumstances did he have a conversation with the principal applicant on the
telephone the day they left for Canada.
[8]
On
September 5, 2001, a deportation order was made by an immigration officer
against the applicants.
[9]
On October
16, 2001, the applicants appealed from the deportation order to a panel
pursuant to section 70 of the old Act.
[10]
On
November 8, 2002, the respondent filed an application with the Refugee Division
to quash the decision of June 2, 2000 which gave the principal applicant’s
husband refugee status.
[11]
This
application was allowed on January 5, 2004 and the decision of June 2, 2000 was
quashed.
[12]
On April
25, 2004, the respondent filed a motion with the panel to dismiss the
applicants’ appeal of the deportation order, alleging that the panel lacked
jurisdiction. Counsel for the respondent alleged that the visas held by the
applicants had been validly cancelled and that, therefore, they had no right of
appeal.
[13]
On July
10, 2004, the claims for refugee protection made by the applicants were
dismissed by the Refugee Division.
[14]
The
application of April 25, 2004 was heard on August 12, 2004 and the hearing was
presided by François Ramsay. The applicants’ counsel Mark Gruszczynski was not
present at the hearing.
[15]
On March
15, 2005, before Mr. Ramsay rendered a decision on this application, the
parties were told that he was on sick leave for an indefinite period and it
would be necessary to hold a new hearing presided by someone else. The date of
this new hearing was set for May 3, 2005.
[16]
On April
25, 2005, counsel for the respondent filed an application objecting to a
hearing being held, alleging that the panel had all the information it needed
to make a decision, and that the applicants had had an opportunity to be heard
by the panel.
[17]
At the
hearing of May 3, 2005, Maria Esposito, an immigration consultant, appeared
before the panel at 10:30 a.m. accompanied by the applicants. Noting again that
Mr. Gruszczynski was absent, the panel concluded there had been a change of
counsel and asked Ms. Esposito to submit a written argument before May 27, 2005
regarding the question of the panel’s lack of jurisdiction.
[18]
After
receiving written submissions from counsel for the applicants, the panel
dismissed their appeal on August 11, 2005 on the ground of a lack of
jurisdiction.
IMPUGNED DECISION
[19]
In its
reasons, the panel summarized the state of the law: in principle, a visa
continues to be valid once issued, but this rule is subject to four exceptions
set out by this Court in Canada (Minister of Citizenship and Immigration) v.
Hundal, [1995] 3 F.C. 32 (T.D.). The fourth exception is that a visa ceases
to be valid when it has been revoked or cancelled by an immigration officer.
[20]
The panel
then relied on Minister of Employment and Immigration v. Gudino, [1982]
2 F.C. 40, in which the Federal Court of Appeal held that a visa
revocation made by telephone was valid and enforceable.
[21]
The panel
then stated that it did not find the principal applicant’s allegation to be
credible that, on June 5, 2001, the immigration officer had spoken to her
sister, not to herself, especially in view of the fact that the person the
immigration officer spoke to said that she or her son Ehsanullah would
bring the visas back to the Canadian High Commission in Islamabad (the
applicant has a son named Ehsan Ullah).
[22]
The panel
then found that, as the visas had been validly cancelled, the applicants had
arrived in Canada without a valid visa and they were neither permanent
residents nor Convention refugees, they had no right of appeal under section 70
of the old Act.
ANALYSIS
[23]
Section 70
of the old Act reads as follows:
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70 (1) Subject to subsections (4) and
(5), where a removal order or conditional removal order is made against a
permanent resident or against a person lawfully in possession of a valid
returning resident permit issued to that person pursuant to the regulations,
that person may appeal to the Appeal Division on either or both of the following
grounds, namely,
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70.
(1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les
titulaires de permis de retour en cours de validité et conformes aux
règlements peuvent faire appel devant la section d’appel d’une mesure de renvoi
ou de renvoi conditionnel en invoquant les moyens suivants :
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(a)
on any ground of appeal that involves a question of law or fact, or mixed law
and fact; and
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a) question de droit, de fait ou mixte;
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(b)
on the ground that, having regard to all the circumstances of the case, the
person should not be removed from Canada.
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b) le fait que, eu égard aux circonstances
particulières de l’espèce, ils ne devraient pas être renvoyés du Canada.
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(2)
Subject to subsections (3) to (5), an appeal lies to the Appeal Division from
a removal order or conditional removal order made against a person who
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(2)
Sous réserve des paragraphes (3) à (5), peuvent faire appel devant la section
d’appel d’une mesure de renvoi ou de renvoi conditionnel :
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(a)
has been determined under this Act or the regulations to be a Convention
refugee but is not a permanent resident; or
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a) les non-résidents permanents qui se sont vu
reconnaître le statut de réfugié au sens de la Convention aux termes de la
présente loi ou de ses règlements;
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(b)
seeks landing or entry and, at the time that a report with respect to the
person was made by an immigration officer pursuant to paragraph 20(1)(a),
was in possession of a valid immigrant visa, in the case of a person seeking
landing, or a valid visitor's visa, in the case of a person seeking entry.
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b) les personnes qui, ayant demandé
l’admission, étaient titulaires d’un visa de visiteur ou d’immigrant, selon
le cas, en cours de validité lorsqu’elles ont fait l’objet du rapport visé à
l’alinéa 20(1)a).
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(3)
An appeal to the Appeal Division under subsection (2) may be based on
either or both of the following grounds:
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(3)
Les moyens que peuvent invoquer les appelants visés au paragraphe (2) sont
les suivants :
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(a)
on any ground of appeal that involves a question of law or fact, or mixed law
and fact; and
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a)
question de droit, de fait ou mixte;
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(b)
on the ground that, having regard to the existence of compassionate or
humanitarian considerations, the person should not be removed from Canada.
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b) le fait que, pour des raisons d’ordre
humanitaire, ils ne devraient pas être renvoyés du Canada.
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(3.1) No appeal may be
made to the Appeal Division by a person with respect to whom a certificate
has been filed under subsection 40.1(1) where it has been determined,
pursuant to paragraph 40.1(4)(d), that the certificate is reasonable.
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(3.1) Ne peut faire
appel devant la section d’appel la personne à l’égard de laquelle il a été
décidé, en application de l’alinéa 40.1(4)d), que l’attestation
visée au paragraphe 40.1(1) est raisonnable.
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(4)
A person described in subsection (1) or paragraph (2)(a) against
whom a deportation order or conditional deportation order is made may appeal
to the Appeal Division on any ground of appeal that involves a question of law
or fact, or mixed law and fact, where the person is
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(4)
Les moyens d’appel sont limités aux questions de droit, de fait ou mixtes
dans le cas d’appels relatifs à une mesure d’expulsion ou d’expulsion
conditionnelle interjetés par les personnes, visées au paragraphe (1) ou aux
alinéas (2)a) ou b), qui, selon le cas :
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(a)
a person, other than a person described in subsection (5), with respect to
whom a certificate referred to in subsection 40(1) has been issued; or
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a) ont fait l’objet de l’attestation prévue au
paragraphe 40(1), sauf si elles sont visées au paragraphe (5);
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(b)
a person, other than a person described in subsection (3.1), who has been
determined by an adjudicator to be a member of an inadmissible class
described in paragraph 19(1)(e), (f), (g), (j) or
(l).
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b) appartiennent, selon la décision d’un
arbitre, à l’une des catégories non admissibles visées aux alinéas 19(1)e),
f), g), j) ou l), sauf si elles sont visées au
paragraphe (3.1). Restriction
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(5)
No appeal may be made to the Appeal Division by a person described in
subsection (1) or paragraph (2)(a) or (b) against whom a
deportation order or conditional deportation order is made where the Minister
is of the opinion that the person constitutes a danger to the public in
Canada and the person has been determined by an adjudicator to be
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(5)
Ne peuvent faire appel devant la section d’appel les personnes, visées au
paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la
décision d’un arbitre :
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(a)
a member of an inadmissible class described in paragraph 19(1)(c), (c.1),
(c.2) or (d)
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a) appartiennent à l’une des catégories non
admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d)
et, selon le ministre, constituent un danger pour le public au Canada;
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(b)
a person described in paragraph 27(1)(a.1); or
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b) relèvent du cas visé à l’alinéa 27(1)a.1)
et, selon le ministre, constituent un danger pour le public au Canada;
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(c)
a person described in paragraph 27(1)(d) who has been convicted of an
offence under any Act of Parliament for which a term of imprisonment of ten
years or more may be imposed.
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c) relèvent, pour toute infraction punissable
aux termes d’une loi fédérale d’un emprisonnement maximal égal ou supérieur à
dix ans, du cas visé à l’alinéa 27(1)d) et, selon le ministre,
constituent un danger pour le public au Canada.
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(6)
Where the Appeal Division directs that the execution of a deportation order
or conditional deportation order be stayed, the direction is of no effect
and, notwithstanding subsection 74(2), the Appeal Division may not review the
case, where the Minister is of the opinion that the person has breached the
terms and conditions set by the Appeal Division and that the person
constitutes a danger to the public in Canada and the person has been
determined by an adjudicator to be
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(6)
Malgré le paragraphe 74(2), la section d’appel ne peut réexaminer le cas —
l’ordonnance de sursis visant la mesure de renvoi ou de renvoi conditionnel
cessant alors d’avoir effet — si, selon le ministre, la personne n’a pas
respecté les conditions du sursis et constitue un danger pour le public au
Canada et que, selon la décision d’un arbitre, elle :
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(a)
a member of an inadmissible class described in paragraph 19(1)(c), (c.1),
(c.2) or (d);
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a) appartient à l’une des catégories non
admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d);
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(b)
a person described in paragraph 27(1)(a.1); or
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b) relève du cas visé à l’alinéa 27(1)a.1);
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(c)
a person described in paragraph 27(1)(d) who has been convicted of an
offence under any Act of Parliament for which a term of imprisonment of ten
years or more may be imposed.
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c) relève, pour toute infraction punissable aux
termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix
ans, du cas visé à l'alinéa 27(1)d).
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1. Did the panel make an error
warranting this Court’s intervention when it found that the visas granted to
the applicants had been validly cancelled?
[24]
The
applicants did not challenge the following legal principle: a visa may be
validly cancelled by an immigration officer by telephone; however, they alleged
that the panel has violated the rules of procedural fairness and natural
justice by attaching greater evidentiary value to the immigration officer’s
allegations and by dismissing their appeal without hearing their testimony.
[25]
The
applicants argued that the panel should have heard their testimony, since its
decision was based on a question of fact involving their credibility.
[26]
The
applicants further argued that the panel’s request to Ms. Esposito to file written
submissions indicated that there was a resumption of the hearing held before
Mr. Ramsay, not a hearing de novo.
[27]
In the
alternative, the applicants argued that the panel made an error when it found
that the testimony of the visa officer was credible.
[28]
The
respondent alleged that the applicants did not object to his application
objecting to a new hearing to take place in due time, and are now barred from
making such an objection.
[29]
The
respondent further submitted that it is somewhat paradoxical that the
applicants are arguing that the panel should have heard their testimony viva
voce on May 3, 2005 when they were not present at the hearing.
[30]
The
respondent also argued that the panel made no error in finding that the visa
officer’s testimony was more credible than the applicants’ allegations, which
are more clearly self-serving.
[33]
On May 3,
2005, the applicants did not appear at the time indicated in the summons.
However, an individual stated that she was not representing the applicants but
was asking for an adjournment to another date. The panel decided to wait, and
around 10:30 a.m., the immigration consultant appeared at the hearing
accompanied by the applicants. The panel granted a delay so the consultant
could file written submissions.
[34]
It was not
until after these submissions had been received that a decision was rendered.
The Court is of the view that the applicants had an opportunity to present all
their arguments.
[35]
With
regard to the credibility of the visa officer, the assessment of the
credibility of testimony is a question of fact which is entirely a matter for
the expertise of the panel and this Court’s intervention would only be
warranted if there had been a patently unreasonable error of assessment. In Jessani
v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127, Malone
J. wrote at paragraph 16:
In
this case, the Board was required to conduct an analysis of the evidence
presented in order to determine credibility and to make findings of fact. In my
analysis, the standard of judicial deference to be afforded the Board’s factual
findings in relation to section 24 and subsection 70(1) of the Act is one of
patent unreasonableness: see Canada (Minister of Citizenship and
Immigration) v. Park, [2001] F.C.J. No. 289 (F.C.T.D.) at
paragraph 12; Perkins v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1759 (F.C.T.D.) at paragraphs 16 and 18; Canada
(Minister of Citizenship and Immigration) v. Owens, [2000]
F.C.J. No. 1644 (F.C.T.D.) at paragraphs 30 and 31.
[36]
In the
case at bar, the affidavit of the visa officer is confirmed by the computer
notes prepared on June 5, 2001 (panel’s record, at pages 139 and 141).
[37]
The
Court’s intervention is not necessary here.
[38]
The
parties did not submit any questions for certification and none are raised by
this case.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
François
Brunet, LLB, BCL
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