Date: 20050815
Docket: IMM-7172-04
Citation: 2005 FC 1104
OTTAWA, Ontario, August 15, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
GAUTAM BAPUBHAI VASHEE, KALPANABEN GAUTAM VASHEE, UNNATI GAUTAM, MIHIR GAUTAM VASHEE and KRUTIBEN GAUTAM VASHEE by her litigation guardian GAUTAM BAPUBHAI VASHEE
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Board") dated August 3, 2004 in which a stay of removal that had previously been granted to the applicants was revoked.
FACTS
[2] The principal applicant, Mr. Guatam Bapubhai Vashee, is a 50 year-old citizen of Zambia. He arrived in Canada on May 2, 1995 as a permanent resident, accompanied by his wife and three children (presently aged 24, 20 and 17). Permanent residency status was granted to the family on condition that the principal applicant establish a business within two years of his arrival, participate actively in the business, make a substantial contribution to the Canadian economy and provide employment to one or more Canadian citizens or permanent residents.
[3] In July 1999, deportation orders were issued against the applicants on the basis that the principal applicant had failed to comply with the necessary conditions. In particular, the principal applicant had not purchased or established a business in Canada. The deportation orders were upheld on appeal, however, the Board granted a stay of removal for 18 months pursuant to paragraph 70(1)(b) of the Immigration Act, R.S.C. 1985 c. l-2 to provide the principal applicant with additional time to meet the conditions. Following the 18 month period, on August 7, 2002, the Board conducted an oral review of the applicants' situation. It was noted that although the principal applicant had not yet invested in a business, he had a transaction pending with respect to a woodworking enterprise that was expected to close within a few months. In order to permit the principal applicant to complete the transaction and fulfill the conditions of his permanent residency, the Board granted a further stay of removal for 12 months.
THE DECISION
[4] On August 3, 2004, the Board conducted a further review of the applicants' situation. At the conclusion of the oral hearing, the Board ordered that the stay of removal be revoked and that the appeal against the deportation orders be dismissed. The principal reasons given by the Board for the negative decision were that:
· The principal applicant had still not complied with the terms of his permanent residency. Although he had recently established two new businesses, a dry cleaning operation and a grocery, there was no evidence that those business were making a substantial contribution to the Canadian economy.
· The principal applicant had failed to comply with a condition imposed upon him at the time the second extension was granted. In particular, he was over a month late in filing a report indicating the progress of his business investment.
· On a balance of probabilities, the principal applicant had misled the previous Board when he stated that his investment in a woodworking business was imminent. The evidence established that the principal applicant never intended to invest in the business, and, in fact, did not do so.
· The progress report filed by the principal applicant also contained misleading information. In the report, dated March 2003, the principal applicant stated that although the investment in the woodworking business had been delayed, it would be completed by April 2003. However, the principal applicant later testified that he knew as early as January or February 2003 that he would not be pursuing the investment.
· Although it was in the best interests of the children to stay in Canada, the other factors outweighed the interests of the children and warranted revoking the stay of deportation.
[5] The Board recognized that no specific submissions were made or evidence led on the issue of the best interests of the children. The Board stated at paragraphs 19 and 20 of the decision:
¶ 19. The appellant and his family have been in Canada for about nine years now since they came to this country from Zambia. This is not an insignificant amount of time and I accept that it may be a hardship now for them to uproot themselves from Canada and to return to Zambia. No specific evidence was put before me as to what that hardship would involve or what conditions would be faced. No evidence was put before me today about what specific impact removal would have on the family or how the best interests of the children would be affected.
¶ 20. I am prepared to accept that it would not be in the best interest of the children, one of whom is in university and the other of whom is in school, to leave Canada and return to Zambia. However, I cannot be more specific or engage in greater analysis of the best interests of the children because no specific evidence was put before me as to what those interests might entail either in Canada or Zambia. I am, as I say, prepared to accept and place emphasis; however, on the fact that it would be in the best interest of those children to remain in Canada where they have now been studying for nine years. (Emphasis added)
ISSUE
[6] The applicants raise the following key issue:
Did the Board err in failing to appoint a designated representative for the minor applicant?
ANALYSIS
Did the Board err in failing to appoint a designated representative for the minor applicant?
[7] At the time of the hearing of the oral review in August 2004, the minor applicant, Krutiben Gautam Vashee, was 16 years old. Her date of birth, February 26, 1988, was noted on the documents before the Board. The respondent concedes that the Board erred in failing to designate a representation for the minor child for the purpose of this appeal. This was an appeal under the Immigration Act, R.S.C. 1985, c.1-2 (as amended). Under the transition provisions of the new Act, the old Act continues to apply to this matter. Under the old Act and Regulations, there is an obligation on the Board to designate a representative for a person under the age of 18 years. Given the mandatory language, the Court concludes that the Board erred in law by failing to designate a representative for the minor applicant.
[8] The analysis, however, does not end there. The respondent submits that the failure of the Board to designate is not fatal and that the Court should only interfere with the decision if the lack of a representative "could have affected the outcome" of the case. In support of its position, the respondent refers to the decision of Justice Dawson in Duale v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 178 (F.C.) where she held at paragraph 10:
I agree that it is necessary to consider the facts of each particular case and that it may be possible that the failure to designate a representative will not vitiate the determination of a claim.
The jurisprudence on this matter is well-established. The Federal Court of Appeal per Sharlow J.A. in Stumf v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 590 held at paragraph 6:
It is our view that subsection 69(4) of the Immigration Act imposes on the Board an obligation to designate a representative for any refugee claimant who meets the statutory criteria, and that the obligation arises at the earliest point at which the Board becomes aware of those facts. In this case, the age of the minor claimant was apparent from the outset, and the matter of designating a representative for her should have been considered at least at the point at which abandonment proceedings were in contemplation, and certainly should have been done before the motion to re-open the claim was considered. The failure of the Board to do so was an error that vitiates the decision to refuse the motion.
[9] Dawson J. held in Duale, supra, at paragraphs 17, 18, 20 and 21:
¶ 17. It is also important to consider the purpose of a designated representative. The Guidelines provide that the duties of a designated representative are as follows:
- to retain counsel;
- to instruct counsel or to assist the child in instructing counsel;
- to make other decisions with respect to the proceedings or to help the child make those decisions;
- to inform the child about the various stages and proceedings of the claim;
- to assist in obtaining evidence in support of the claim;
- to provide evidence and be a witness in the claim;
- to act in the best interests of the child.
[emphasis in original]
¶ 18. Mr. Duale went through each stage of the proceeding, except for the actual hearing, without the assistance a designated representative was intended to provide. In particular, Mr. Duale did not have the benefit of any assistance from a designated representative in gathering evidence to support his claim. This is contrary to the intent and scheme of the Act and the Rules, and contrary to the Guidelines.
...
¶ 20. In light of the first three finding of the RPD set out above, I am unable to safely conclude that the failure to appoint a designated representative could not have had an adverse effect on the outcome of the claim. A designated representative would have been responsible for assisting Mr. Duale to obtain evidence. This evidence before me supports the inference that the evidence gathering process was not what it could have been.
¶ 21. In sum, to use the words used by Madam Justice Sharlow for the Court in Stumf, I am satisfied that the designation of a representative in this case could have affected the outcome.
[10] In the respondent's view, the failure to appoint a designated representative for one minor child could not have affected the outcome of the case because the Board's decision turned primarily on the actions taken by the principal applicant, not the children. Accordingly, the Court should not intervene on this point.
[11] I agree with Justice Dawson that, depending on the facts, there may be circumstances under which the failure to appoint a designated representative will not vitiate the underlying decision. However, this Court has adopted a strict interpretation of the Board's obligations in this regard, and that the failure to designate a representative for a minor has consistently resulted in an order for a new hearing or redetermination. See Stumf v. (Minister of Citizenship and Immigration), [2002] F.C.J. No. 590 (F.C.A.); Kissoon v. Canada (Minister of Employment and Immigration), [1979] 1 F.C. 301 (F.C.A.); Sibaja v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.1363 (F.C.); Phillip v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.1820 (F.C.T.D.); In fact, in Duale, supra, Justice Dawson allowed the application for judicial review of a refugee decision on the basis that she could not "safely conclude that the failure to appoint a designated representative could not have an adverse effect on the outcome of the claim."
[12] I have reviewed the record in the present case, and conclude, as Justice Dawson did, that the failure to appoint a designated representative for the minor applicant could have affected the outcome of the case. In its decision, the Board refers specifically to the fact that
no submissions were made with respect to the best interests of children and that it could not engage in a detailed analysis of those interests. If a designated representative had been appointed to represent the minor and had been instructed of his or her responsibility to represent the interests of the child, then that person may have led evidence to demonstrate the degree of establishment of the child and the likely impact that removal would have on her. Although the interests of the parents often coincide with those of the children, the interests of the child can be distinct. The Board has previously cancelled a removal order issued against a minor applicant on the basis that he was well-established in Canada while refusing to cancel orders issued against the remainder of his family. Baki Zada v. Canada (Minister of Citizenship and Immigration), [2002] I.A.D.D. No. 279. Therefore, if specific submissions had been made regarding the interests of the minor applicant, it is possible that the outcome would have been different.
[13] Having concluded that the failure to designate a representative could have affected the outcome for the minor applicant, the Court must now determine whether to allow the judicial review with respect to the child only or with respect to all of the family members. The applicants submit that the failure to designate a representative for a minor renders the entire decision void and that the Court should allow the judicial review for all of the family members.
[14] The jurisprudence provides little guidance on this issue. Accordingly, I will follow the reasoning of Justice Dawson in Duale, supra: if the failure to designate a representative for a minor applicant could have affected the decision with respect to the entire family, then all of the applicants are entitled to a redetermination. Based on the record in the present case, I conclude that the failure to designate a representative for the minor applicant could have influenced the entire decision. In deciding whether to grant a stay of deportation, the Board is required to take into account the best interests of the children. If a representative had been designated, and had made submissions or adduced evidence with respect to the best interests of the minor child, the Board would have been required to weigh these interests against the other factors before rendering its decision. In such circumstances, it is possible that the Board would have rendered a different decision with respect to the entire family, and not just the minor applicant. It is the responsibility of the Board to weigh the best interests of the child against the public policy interests of removing all or some of the applicants for failing to comply with the conditions upon which they entered Canada.
[15] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the Board dated August 3, 2004 is set aside, and the matter is remitted to a different panel of the Board for redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7172-04
STYLE OF CAUSE: GAUTAM BAPUBHAI VASHEE. ET AL.
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: August 10, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: August 15, 2005
APPEARANCES BY:
Ronald Poulton FOR THE APPLICANT
Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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