Hung v. Canada (Minister of Citizenship and Immigration), 2004 FC 966

Date: 20040719

Docket: IMM-3331-03

Citation: 2004 FC 966

Ottawa, Ontario, July 19, 2004

Present:           The Honourable Mr. Justice François Lemieux

BETWEEN:

                                                          NGUYEN LAM HUNG

                                                                                                                                            Applicant

                                                                           and

                                                    MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

                       (Delivered from the bench at Montréal, Quebec, on June 29, 2004)

[1]                This is an application for judicial review of a decision by the Immigration Appeal Division (the panel or the IAD) dated April 14, 2003, dismissing the applicant's application for reopening before the IAD his appeal of a removal order against him dated August 20, 2002.

[2]                The applicant, born in Vietnam on June 23, 1969, obtained permanent residence on March 13, 1991.

[3]                On March 22, 2002, he was sentenced to 16 months in prison and, following a report submitted to the Adjudication Division, member Lajeunesse determined on August 20, 2002, that he was a person contemplated by subsection 36(1) of the Immigration and Refugee Protection Act (IRPA), which sanctions inadmissibility on the grounds of serious criminality.

[4]                He appealed the same day to the IAD under subsection 63(3) of the IRPA. His notice of appeal indicates that he was represented by counsel, Daniel Drouin.

[5]                Then the applicant and his counsel were advised that a scheduling conference would be held on December 13, 2004.

[6]                Mr. Drouin discussed the scheduling conference with the applicant and advised him that he would show up there alone, which he usually does in the vast majority of cases.

[7]                Neither the applicant nor Mr. Drouin were present at the scheduling conference. The day before, Mr. Drouin had consulted a physician who wrote him a medical note "[TRANSLATION] Temporary unable to work from December 12 to 17, 2002 inclusively".

[8]                On December 13, 2002, at the end of the scheduling conference at 11:55 the member and the respondent's counsel noted that the applicant and his counsel were absent and that there had been no news from them. The minister's counsel asked the panel to immediately apply, ex parte, the measure provided under section 168 of the IRPA, i.e. the abandonment of the matter before it. From the bench, the member declared the appeal abandoned.

[9]                According to section 71 of the IRPA, the IAD may only reopen the evidence if it is satisfied that it failed to observe a principle of natural justice.

[10]            In my view, the panel erred fundamentally in finding that it had not failed to observe a principle of natural justice when on December 13, 2004, the member declared that the appeal had been abandoned.

[11]            The concept of natural justice or procedural fairness varies according to the circumstances (see Baker v. Canada [1999] 2 S.C.R. 817, paragraphs 20 to 28).

[12]            In my opinion, in declaring the appeal abandoned without giving the applicant or his counsel the opportunity to explain why they were absent, the member failed to observe the principles of natural justice, in the circumstances of this case.

[13]            This decision took away his opportunity to persuade the IAD to exercise its jurisdiction in equity and to stay a removal order. It is accordingly very far-reaching.

                                                                       ORDER

This application for judicial review is allowed, the decision of the panel to not re-open the appeal is set aside, the application to reopen is referred to differently constituted panel of the IAD who shall make a determination in accordance with these reasons.

There was no question of importance proposed for certification.

            "François Lemieux"          

                                                               Judge                        

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                          IMM-3331-03

STYLE OF CAUSE:                          NGUYEN LAM HUNG

                                                                                                                                            Applicant

and

MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                        Respondent

PLACE OF HEARING:                    Montréal, Quebec

DATE OF HEARING:                      June 29, 2004

REASONS FOR ORDER AND ORDER:

THE HONOURABLE MR. JUSTICE LEMIEUX

DATE OF REASONS:                      (Delivered from the bench at Montréal on June 29, 2004)

APPEARANCES:

Daniel Drouin                                                                FOR THE APPLICANT

Christine Bernard                                                           FOR THE RESPONDENT

SOLICITORS OF RECORD:

Drouin Lakhdar Hung                                                    FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec