Date: 20040126
Docket: IMM-4500-02
Citation: 2004 FC 121
OTTAWA, (Ontario), this 26th day of January, 2004
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
DANIUS SABADAO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Danius Sabadao ("Mr. Sabadao") seeks judicial review of the decision of the Immigration Appeal Division (the "IAD") concluding that the appeal of his deportation order was discontinued pursuant to section 196 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[2] The applicant is a citizen of the Philippines who arrived in Canada in April 1991 to claim refugee status. In August 1993, his claim was rejected because it was found that there were serious grounds to believe that he had committed a crime against humanity contrary to article 1(F)(a) of the United Nations Convention Relating to the Status of Refugees during his service in the Philippines army between 1979 and 1984. Mr. Sabadao filed an application for leave and judicial review of this decision.
[3] On October 5, 1993, he married a Canadian citizen and acquired his Canadian permanent resident status in December 1994. In February 1994, Mr. Sabadao withdrew his application for judicial review of the decision of the Immigration and Refugee Board.
[4] In the fall of 1997, it was determined that Mr. Sabadao may have obtained his permanent resident status through misrepresentations. A direction for inquiry under section 27(3) of the Immigration Act, R.C.S., 1985 c. I-2 (the "old Act") was signed on July 12, 2000. The adjudicator concluded on March 1, 2001, that Mr. Sabadao had obtained his permanent resident status based on misrepresentations of a material fact (paragraph 27(1)(e) of the old Act). The adjudicator also found that he was a member of an inadmissible class (paragraph 19(1)(j) of the old Act) because there were reasonable grounds to believe that he committed an offence under sections 4 and 7 of the Crimes Against Humanity and War Crimes Act, R.S.C. 2000 c. 24. In this respect, the adjudicator confirmed the 1993 finding that Mr. Sabadao was an accomplice by association of crimes against humanity committed by the Philippines army when he was in its service.
[5] In March 2001, a deportation order was issued . The applicant filed an appeal pursuant to section 70 of the old Act. It was scheduled to be heard on September 13, 2002 and until then his removal was stayed automatically pursuant to paragraph 49(1)(b) of the old Act.
[6] On June 28, 2002, the Act came into Force.
[7] Shortly before the hearing, the applicant received a letter dated September 6, 2002 from the IAD advising him that he no longer had a right of appeal because of the combined effect of sections 196 and 64 of the Act. It is this decision that is the subject of the present application which was heard at the same time as Mr. Sabadao's application in file IMM-4501-02 in which he contests the legality of the deportation order itself.
ISSUES
[8] Mr. Sabadao argues that:
i) The IAD erred in discontinuing his appeal because it misconstrued section 196 of the Act as applying only to persons who benefit of a stay granted by the former Appeal Division of the Immigration and Refugee Board. In that respect, he relies on the decision of this Court in Medovarski v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 811 (QL).
ii) The IAD erred in discontinuing his appeal without determining whether or not he was in fact inadmissible because of a violation of international human rights. Such question is a jurisdictional question which had to be addressed (Shelby v. Canada, (1981) 1 F.C. 203 (C.A.)).
iii) Finally, the IAD breached its duty of fairness by failing to seek and hear submissions from him before discontinuing his appeal
[9] The respondent submits that the IAD correctly construed section 196 as applying only to stays granted under sections 73 and 74 of the old Act and not to appellants benefiting of a statutory stay (paragraph 49(1)(b) of the old Act). The respondent argues that the decision in Medovarski, supra, should not be followed because it is manifestly wrong.
[10] The respondent's main argument with respect to the Medovarski decision is that it violates the presumption against absurdity. It submits that the Court in that case did not have the benefit of considering the clause by clause analysis prepared by the Department of Citizenship and Immigration and provided to the Standing Committee on Citizenship and Immigration and the Standing Senate Committee on Social Affairs, Science and Technology for their consideration of Bill C-11. More particularly, this clause by clause analysis specifically refers to a stay of removal granted pursuant to sections 73 and 74 of the old Act in its explanation of section 197 of the Act.
[11] With respect to the alleged jurisdictional question, the respondent states that the Shelby decision above, is inapplicable because the very purpose of section 196 is to make the adjudicator's findings final and without appeal. It also submits that the IAD did not breach its duty to fairness for section 196 of the Act applies as a matter of law and does not contemplate a hearing. In any event, if such duty was incumbent on the IAD, the respondent argues that the Court should not quash the decision since it is inevitable that after hearing from the applicant the IAD would have reached precisely the same decision with respect to the interpretation of section 196.
[12] Finally, the respondent argues that regardless of the merits of this application, the Court should exercise its discretion to dismiss it on the basis that the applicant did not come to the Court with clean hands or because a person should not benefit from its own wrongdoing especially in a case where the relief sought would have the effect of undermining the purpose and objects of the Act.
[13] In that respect, the respondent relies on the fact that Mr. Sabadao failed to mention in his application for a permanent resident status that his claim for refugee status was dismissed on the basis that there were serious grounds to believe that he had committed crimes against humanity and was therefore, inadmissible in Canada. The inquiry concluded in 2001, confirmed that Mr. Sabadao had made a material misrepresentation to obtain his permanent resident status and in his application for judicial review in file IMM-4501-02, Mr. Sabadao does not challenge the validity of the decision on this point. He should therefore be considered as having admitted that he lied to obtain his permanent resident status. The respondent submits that his impugned conduct is directly connected to the application before the Court because he would not otherwise have had a right to appeal pursuant to section 70 of the old Act.
ANALYSIS
[14] I shall apply the standards of review described in the recent decision of the Federal Court of Appeal Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (QL) at para. 14. The interpretation of sections 196 and 64 of the Act is a question of law to which the standard of correctness applies.
[15] The circumstances in this case are almost identical to those before Snider J. in Medovarski, supra. The issue of whether the section 196 of the old Act applies to appellants who benefit of a stay pursuant to paragraph 49(1)(b) of the old Act has been considered and decided in several decisions of this Court since Medovarski [see: Jones v. Canada (Minister of Citizenship and Immigration) 2003 FCT 661, [2003] F.C.J. No. 876 (QL) (Campbell J.), Cartwright v. Canada (Minister of Citizenship and Immigration) 2003 FCT 792, [2003] F.C.J. No. 1024 (QL) (Heneghan J.) ;Nokhodchari v. Canada (Minister of Citizenship and Immigration) 2003 FCT 803, [2003] F.C.J. No. 1075 (QL) (Blais J.A.), Amado-Cordeiro v. Canada (Minister of Citizenship and Immigration) 2003 FC 847, [2003] F.C.J. No. 1087 (QL) (Campbell J.); Esteban v. Canada (Minister of Citizenship and Immigration) 2003 FC 930 [2003], F.C.J. No. 1181 (QL) (Dawson J.) and Luu v. Canada (Minister of Citizenship and Immigration) 2003 FC 1466, [2003] F.C.J. No. 1888 (QL) (O'Reilly J.)].
[16] In Nokhodchari, supra, the Court distinguish Medovarski on the facts. In all the other cases referred to above, the Federal Court has been unanimous in its interpretation of section 196 of the Act. In such circumstances, I simply cannot accept the respondent's argument that the decision in Medovarski, supra, is manifestly wrong. The clause by clause analysis does not shed new light on the debate (see Dawson J. in Esteban, supra).
[17] Thus, based on the arguments presented to me, I am not prepared to accept that Mr. Sabadao's appeal had to be discontinued. The IAD was incorrect in its interpretation of the Act. The Court of Appeal will review shortly this issue thus I will certify the same question that was certified in Medovarski and Esteban, above.
[18] In the circumstances, it is not necessary to address Mr. Sabadao's other arguments. However, the Court must decide whether it should exercise its discretion to nevertheless dismiss the application because Mr. Sabadao obtained its status of permanent resident though misrepresentations.
[19] In this respect, the first step is to determine if Mr. Sabadao's conduct was so reprehensible that it should entail the application of one of the doctrines invoked by the respondent.
[20] In its decision, the adjudicator found that the answer to question 30(f) of the application for permanent resident did not reveal the whole truth and that by signing at question 30(3) that the information given is his application was complete and correct, Mr. Sabadao knew that he had the duty to make full disclosure. The information he was held not to have disclosed is the fact that he had been excluded from the definition of convention refugee in the old Act because of section 1(f) of the Convention. For the adjudicator, this omission was material because it could influence the granting of his permanent resident status.
[21] The question at section 30(f) of the application was:
Have you or any one of the persons in question 16 ever: (answer "yes" or "no"):
Ever been involved, in periods of either peace or war, in the commission of a war crime or crime against humanity such as. Wilful killing, torture, attacks upon enslavement, starvation or other inhumane acts committed against civilians or prisoners of war, or deportation of civilians?
[22] Mr. Sabadao answered no, but, in the very same box 30, he made an annotation which read as follows:
I applied for refugee status here (Canada) but I was denied.
[23] The question put to him at 30(f) is one of fact. Have you been involved or not?... In his answer, Mr. Sabadao was consistent with the position he had taken before the Refugee Division in 1993 and with his then pending application for judicial review that is, he was never involved in any such crimes.
[24] Although I agree that omissions can sometimes have the same effect as positive lies, I find that when Mr. Sabadao disclosed that he had made a refugee claim that had been denied, he was entitled to believe that the authorities would look at his file. I am indeed surprised that the person assessing this application did not do this very basic verification.
[25] I do not accept the respondent's argument that Mr. Sabadao admitted that he lied because he focussed his application for judicial review on the main finding of the adjudicator.
[26] I am not satisfied that in the present circumstances, Mr. Sabadao's behaviour was such that it would be morally wrong to grant him the remedy he would otherwise be entitled to on the present application. In that respect, I note that Parliament did not see fit to deny a right of appeal to persons who were found inadmissible because of a material misrepresentation (section 40(1) and former 27(1)(e) of the old Act).
[27] Section 64 of the Act only applies in this case because the applicant was also found to be inadmissible on the basis of reasonable grounds to believe that he had violated international human rights.
[28] The application will be allowed.
[29] The applicant submitted five questions for certification. Only two relate to issues actually discussed in my decision (the interpretation of section 196 of the Act and the application of the "clean hand doctrine"), the others dealt with arguments that I did not deal with because of my interpretation of section 196 of the Act. My decision not to deny his remedy to Mr. Sabadao turns on the facts of this case. I will not certify any question in that respect.
[30] However, as mentioned, I will certify the same question that was certified in Medovarski and Esteban, above with respect to section 196 of the Act.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Immigration Appeal Division stating that the applicant's appeal had been discontinued is set aside. Mr. Sabadao's appeal shall be reinstated.
2. The following question is certified:
Does the word "stay" in section 196 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, contemplate a stay that came into effect under the Immigration Act, R.C.S. (1985) C I-2, as a result of the operation of paragraph 49(1)(d)?
"Johanne Gauthier"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4500-02
STYLE OF CAUSE: Danius Sabadao and
the Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 16, 2003
REASONS FOR ORDER
AND ORDER : The Honourable Johanne Gauthier
DATED: January 26, 2004
APPEARANCES:
Ms. Pia Zambelli FOR APPLICANT
Mr. Normand Lemyre
Ms. Gretchen Timmins FOR RESPONDENT
SOLICITORS OF RECORD:
Joseph W. Allen & Associés FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
The Court will not discuss the first issue raised by the applicant and based on section 7 of the Canadian Charter of Rights and Freedoms because at the hearing, the parties agreed that this argument was moot given that the Court would review the merits of the deportation order in file IMM-4501-02.
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