Date: 20060817
Docket: IMM-7225-05
Citation: 2006
FC 996
Quebec, Quebec, August 17, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
MARWAN
MOHAMAD CHARABI
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial
review of an order setting aside a decision of Immigration and Appeal Board
(IAD) member Robert Néron (the Board member), dated November 17, 2005 which
cancelled the stay, quashed the deportation order and allowed Mr. Marwan Mohamad
Charabi’s (the respondent) appeal.
FACTS
[2]
The
respondent is a citizen from Syria. He came to Canada in 1987 and through the
sponsorship of his brother became a permanent resident.
[3]
On
February 23, 1996, he had been convicted on two counts of conspiracy and
unlawful possession of manufactured tobacco for which he was sentenced to an
imprisonment term of two years and two months.
[4]
A report
under section 27 of the Immigration
Act R.S.C. 1985, c. I-2 (the Act) was issued.
An inquiry was held and a removal order was issued on March 9, 1999. The
respondent appealed on the ground that, having regard to all circumstances of
the case, he should not be removed from Canada. On August 11, 1999, Board member Paule
Champoux Ohrt ordered the deportation order to be stayed for a period of three
years, with conditions. On November 6, 2002, Board member Martine Lavoie
reviewed the conditions of the stay granted to the respondent. The stay was
extended one year by member Lavoie.
[5]
On May 26,
2004, Board member Me Jean-Carle Hudon, found the respondent to be in breach of
the conditions of the stay of the removal order made on March 9, 1999, which
was stayed on August 11, 1999, and further reviewed and extended one year on November
6, 2002. The Board member found the respondent to be in breach of the
conditions of his stay for failure to report charges laid against him on
October 4, 2002.
[6]
On January
6, 2005, a Board member ordered that the stay shall be extended until May 2006
subject only to the mandatory conditions. The Board member also indicated that
an interim reconsideration of the case would take place on or about November 1,
2005.
[7]
On
November 15, 2005, Board member Robert Néron reviewed the respondent’s case in
chambers. On November 17, 2005, the Board member cancelled the respondent’s
stay, quashed the deportation order and allowed the appeal.
ISSUE
[8]
Did
the IAD breach the principles of natural justice for failing to provide the
applicant with sufficient notice of the nature of the hearing before the Board member?
ANALYSIS
[9]
The appeal process at
issue in the present matter is governed by section 74 of the Act and subsection
33(3) of the Immigration Appeal Division Rules SOR/93-46, which
provide as follows.
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74. (1) Where the Appeal Division
allows an appeal made pursuant to section 70, it shall quash the removal
order
or conditional removal order that was made against the
appellant and may
(a) make any other removal order or
conditional removal order that should have been made; or
(b) in the case of an appellant
other than a permanent resident, direct that the appellant be examined as a
person seeking admission at a port of entry.
(2) Where the Appeal Division disposes of an appeal by directing that
execution of a removal order or conditional removal order be stayed, the
person concerned shall be allowed to come into or remain in Canada under such
terms and conditions as the Appeal Division may determine and the Appeal Division
shall review the case from time to time as it considers necessary or
advisable.
(3) Where the
Appeal Division has disposed of an appeal
by directing that execution of a removal order or conditional removal order
be stayed, the Appeal Division may, at any time,
(a) amend any
terms and conditions imposed under
subsection (2) or impose new terms and conditions; or
(b) cancel its
direction staying the execution of the order and
(i)dismiss the appeal and direct that the order be executed as soon as
reasonably practicable, or
(ii) allow the appeal and take any other action that it might have taken
pursuant to subsection (1).
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74(1) Si elle fait droit à un appel
interjeté dans le cadre de l'article 70, la section d'appel annule la mesure
de renvoi ou de renvoi conditionnel et peut:
(a) soit lui substituer celle qui aurait dû être prise;
(b) soit ordonner, sauf s'il s'agit d'un résident
permanent, que l'appelant fasse l'objet d'un interrogatoire comme s'il
demandait l'admission à un point d'entrée.
(2) En cas de sursis d'exécution de la mesure de renvoi
ou de renvoi conditionnel, l'appelant est autorisé à entrer ou à demeurer au
Canada aux éventuelles conditions fixées par la section d'appel. Celle-ci
réexamine le cas en tant que de besoin.
(3)
Dans le cas visé au paragraphe (2), la section d'appel peut, à tout moment
(a) modifier les conditions imposées ou en imposer de
nouvelles;
(b) annuler son ordre de surseoir à l'exécution de la
mesure, et parallèlement:
(i)
soit rejeter l'appel et ordonner l'exécution dès que les circonstances le
permettent,
(ii)
soit procéder conformément au paragraphe (1)
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[10]
Subsection 74(2) of
the Act provides that the IAD, in granting a stay of a deportation order, may
impose terms and conditions. Subsection 74(3) of the Act provides that the
IAD may, at any time, amend the terms and conditions, impose new ones or cancel
the stay. Subsection
33(3) of the Rules provides that where the IAD reviews a case of its own
motion pursuant to subsection 74(2) the registrar shall notify the parties of
the review 30 days before the date fixed for the review.
[11]
In the present matter
the applicant relies on the decision of Justice Marc Nadon in Stocking v. Canada (Minister of Citizenship and
Immigration) [1998]
F.C.J. No. 993, to reinforce its claim that it did not receive proper notice of
the nature of the hearing. In Ponnusamy v. Canada (Minister of Citizenship
and Immigration [2000] F.C.J. No. 962, at paragraph 9, Justice W. Andrew
MacKay comments on Justice Nadon’s decision in Stocking:
In
Stocking, the Minister sought to have the terms of the appellant's stay
amended. The Appeal Division gave notice to the appellant that an oral hearing
would be held "in order to ascertain whether the terms of the stay have
been complied with." There was no question in Stocking that the appellant
had complied with all the terms set out in the stay of his deportation order.
At the oral hearing, the Board of its own motion decided to review and cancel
the appellant's stay and dismiss his appeal. Mr. Justice Nadon concluded, upon
judicial review, that the Board could, if proper notice is given, examine the
appellant's conduct and make such an order. In the circumstances where only
notice of review of compliance had been given and compliance was proven, Nadon
J. concluded that the decision to cancel the stay and dismiss the appeal could
not stand.
[12]
In Stocking,
above, the Minister sought to have the terms of the appellant’s stay
amended and it was only at the hearing that the Board decided to review and cancel
the appellant’s stay and dismiss his appeal. The IAD is entitled, under
subsection 74(3) of the Act to review the applicant’s file to determine whether
the stay should be continued, however, the applicant must receive adequate and
reasonable notice of such a course of action. In Stocking, the applicant
was not provided adequate and reasonable notice that the Board wished to review
the original stay. As such, there was a breach of natural justice.
[13]
The question that
needs to be answered in the present matter is whether or not the applicant
received adequate or reasonable notice that the Board intended to review the
stay. On May 16,
2005, the case management officer of the IAD sent a letter to the applicant’s
representative and the respondent. She wrote the following:
In accordance with the order of the
Immigration and Refugee Board, Appeal Division signed the 6th day of
January 2005, the execution of a removal order made against you was stayed.
This is to advise you that the Appeal
Division will proceed with the interim reconsideration of this stay on or about
the 1st day of November 2005. Please advise the IAD of the
opportunity of a review in chambers or a review by oral hearing by producing
arguments and/or documents by or before the 1st day of September
2005. Neither the appellant nor the respondent is required to attend this
review.
However, the Appeal Division may decide
that an oral hearing is necessary. In the event the Appeal Division decides
there should be an oral hearing, you will be given at least 30 days notice in
accordance with Rule 14(2) of the Immigration Appeal Division Rules.
You will be informed of the Appeal
Division decision as soon as possible.
[14]
The situation in the Ponnusamy decision above resembles to a certain
extent the present matter. Unlike the Stocking decision which dealt with a request on
the part of the Minister to amend the terms of the stay, in Ponnusamy the
review of the stay had already been set out in a schedule of periodic review.
Justice MacKay, at
paragraphs 10 and 12, said the following regarding the periodic review of the
stay:
The
decision to review the stay periodically was made when the stay was first
entered and the Appeal Division set out a schedule of periodic reviews. I
conclude that the applicant had sufficient notice that the oral hearing would
concern itself with compliance with the terms of the stay of the deportation
order. The applicant was served with a notice to appear. He had attended a
number of these reviews in the past, and it is not conceivable that a
reasonable person would not be aware of the purpose of the reviews. The
applicant had notice, at least from the last extension of the stay in November,
1997, that the review was being held to consider whether he was in compliance
with the conditions of the stay. In my opinion the Appeal Division acted within
its authority under s-ss. 74(2) and (3) of the Act and in doing so it gave
appropriate notice of the purpose of the review to be conducted.
…
The
applicant received notice of the oral review. Further, he was the subject of a
stay with a number of conditions that he was required to follow. This was a
periodic review and continuing the stay depended upon compliance with the
conditions. At the hearing, the Board member gave the applicant further notice
of the gravity of the situation and offered him the opportunity to make further
submissions. Finally, even if I were persuaded that the applicant was not aware
of the potential consequences of the review hearing that would merely
acknowledge his ignorance of the law, which is no basis for the Court to
intervene where the Appeal Board acted within its authority under s. 74 of the
Act.
[15]
The present matter
dealt with a situation of periodic review. The letter sent to the parties on May 16, 2005, clearly stated
that the Appeal Division would proceed with the interim reconsideration of the
stay on or about November 1, 2005.
[16]
Nevertheless,
I am not satisfied that the applicant has received a proper notice that the
stay would be fundamentally reviewed and the cancellation of the stay would be
contemplated.
[17]
I will
refer to some doctrine and jurisprudence. Referring to Administrative Law,
Third Edition, David J. Mullan cites at page 240, paragraph 111:
Adequate notice requires that the
decision-maker supply persons who are entitled to notice with sufficient
information on the nature of the proceedings and sufficient warning of the
intention to make a decision as will enable them to prepare their proofs and
arguments for presentation and to respond to the proofs and arguments
anticipated from those maintaining a contrary position, and to appear and
participate effectively at any oral hearings.1 In proceedings where there are
contesting parties, this obligation may extend as far as requiring that each
side reveal to the other matters that it intends to put in issue at the
hearing.2
[Notes omitted.]
[18]
Also, the
Supreme Court of Canada in Confederation
Broadcasting (Ottawa) Ltd. v. Canada (Canadian Radio-Television Commission), [1971] S.C.R. 906. held:
It is quite plain that the requirements
of natural justice demand that a person have full and complete notice of the
charges against him and an opportunity to reply thereto. It has been said in
this Court in two recent decisions: Regina
v. Quebec Labour Relations Board, ex parte Komo Construction Inc. [1968] S.C.R.
172, 1 D.L.R. (3d) 125] and Quebec Labour Relations Board v. Canadian Ingersoll
Rand Co. Ltd. et al. [1998] S.C.R. 695, 1 D.L.R. (3d) 417], that the
requirement of natural justice did not extend to demanding that a hearing
policy be had. These cases cited by counsel for the respondent on the present
appeal are not, in my opinion, important on the present issue because here
there was a hearing but in both judgments it is said plainly that “each party
be given the opportunity to put its arguments” (Komo case) and “what is
required is that the parties be given the opportunity to put forward their
arguments” (Canadian Ingersoll Rand case).
In the present case, the complaint is not
that there was not a hearing but that the respondent failed to indicate in any
fashion whatsoever what issue would be considered on that hearing.
[19]
In Stocking,
above, Justice Nadon stated at paragraph 16:
The Appeal Division’s letter of August
21, 1997, which I reproduced in full earlier, does not constitute adequate or
reasonable notice to the applicant. If the Appeal Division intended to review
the applicant’s file to determine whether the stay should be continued, as it
was entitled to under subsection 74(3) of the Act, it could and should have
given the applicant notice of its intention to do so. What the applicant was informed
of was that the Appeal Division would inquire whether he had complied with the
terms of the stay. The evidence, as found by the presiding member, was that the
applicant had complied with the terms imposed upon him. That, in my view,
should have been sufficient to dispose of the issue before the Appeal Division
on October 20, 1997. In the circumstances, I am therefore of the view that the
rules of natural justice require that the decision of the Appeal Division be
set aside. If the Board wishes to review the original stay it has the
jurisdiction to do so, however, the rules of natural justice require that the
applicant be notified of the Board’s intent and be given the opportunity to
respond.
[20]
As was
clearly mentioned by the applicant in his record, the IAD member did not notify
the Minister that he intended to cancel the direction staying the execution of
the respondent’s deportation order and to allow the respondent’s appeal. It is
clear that the Minister’s representative was taken by surprise. He was not in a
position to know the challenge he had to meet at the hearing. He was also
denied the right to be heard before the IAD made its decision. I agree with the
applicant that the failure to give proper notice in accordance with the IAD
Rules requirements invalidates the decision.
[21]
The
applicant is right when he suggests that the Minister was entitled to notice
with sufficient information of the nature of the proceedings and sufficient
warning of what were the intentions of the Board.
[22]
There is
no doubt in my mind that if the IAD had the intention to cancel the
respondent’s stay and allow his appeal, proper notice of its intention should
be given to the applicant. The failure to do so constitutes a breach of the
principles of natural justice.
JUDGMENT
- This application for judicial review
is granted;
- The decision of the Immigration and
Appeal Board is set aside and the matter is returned to the Board to be
reconsidered by a panel differently constituted;
- No question for certification.
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