Docket: IMM-2947-03
Citation:
2004 FC 428
Ottawa, Ontario, March 22, 2004
PRESENT: The
Honourable Mr. Justice Blais
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BETWEEN:
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SHAMEZ POONAWALLA
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Applicant
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and
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MINISTER OF CITZENSHIP AND IMMIGRATION
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Respondent
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AMENDED
REASONS FOR ORDER AND ORDER
PURSUANT TO RULE 397(2)
(UPON being satisfied that the Order
issued March 8, 2004
contained clerical mistakes and
omissions,
pursuant to rule 397(2), I decided to
correct those mistakes
and issue Amended Reasons for Order and
Order.)
[1]
This is an application for judicial review of
the decision by Ms. L. Hill, the Minister's delegate, to refer a report
to the Minister recommending an admissibility hearing pursuant to section 44 of
the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA).
[2]
On December 5, 2003, Mr. Justice Rouleau of this
Court dismissed an application for a stay of a deportation order that was to be
executed on December 8, 2003. In his ruling, Justice Rouleau refers to yet
another file, IMM-7023-03, this one an application for judicial review of a
decision rendered by the Appeal Division of the Immigration and Refugee Board
(IRB) dismissing an appeal of the deportation order.
BACKGROUND
[3]
The applicant was born in India on January 18,
1980. His parents were divorced in 1981. His father had a drug addiction, and
allegedly tried to sell him for drugs when he was three or four years old. At
the age of seven, he witnessed his mother burn to death. His maternal uncle,
Amin Ismael, a Canadian citizen, went to India, became his legal guardian and
brought him back to Canada. Mr. Ismael raised the applicant as his son, but the
applicant never became a Canadian citizen.
[4]
When the applicant was sixteen, conflicts with
his aunt and uncle led him to leave the house. He had difficulty holding a job,
and fell into criminal activities with a gang.
[5]
He was convicted of possession of stolen goods,
driving without insurance or a licence. He became involved in drug trafficking,
and was convicted of possession of cocaine for the purposes of trafficking, as
well as belonging to a criminal organization. For these last two offences, to
which he pled guilty, he was sentenced to 5 years and 6 months in jail.
[6]
While serving his sentence in Drumheller,
Alberta, a report was made for the purposes of the former Immigration Act,
section 27. With the change of legislation that came into effect in 2002, the
report is now discretionary under section 44, but the section 27 report can
still be used for the purposes of section 44 under Regulation 321 of the new
Act. Under the IRPA, report is forwarded to the Minister (or his delegate) who
may refer the report to the Immigration Division for an admissibility hearing.
[7]
In the applicant's case, the report was referred
by the Minister's delegate to the Immigration Division, which ruled that
the applicant was inadmissible on the grounds of serious criminality and thus
had to be removed. The Appeal Division dismissed the appeal of the deportation
order. The deportation order was enforced on December 8, 2003. The applicant
was deported from Vancouver to India.
ISSUE
[8]
Did the Minister's delegate commit a reviewable
error by referring the report to the Minister recommending an admissibility
hearing?
ANALYSIS
Preliminary Matters
[9]
The respondent submitted that the style of cause
should be changed to reflect the fact that it is now the Solicitor General, as
head of the CBSA, who would be responsible for matters of inadmissibility; the applicant
agrees, therefore pursuant to Order in Council P.C. 2003-2061 of 12
December 2003 and Order in Council P.C. 2003-2063 also dated December 12, 2003,
the style of cause is amended to name the Solicitor General of Canada styled
Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness
as respondent.
[10]
The respondent also raised the issue of mootness, given that the applicant had
already been deported. However, subsection 52(2) of the IRPA provides for
the possibility of the removal order being set aside by judicial review and the
foreign national being entitled to return to Canada at the expense of the
Minister. The respondent argued that the applicant did not seek judicial
review of the deportation order; since the applicant had been deported,
there was no longer a live controversy between the parties.
[11]
The fact of the deportation is not in itself an
indicator of mootness, as shown by subsection 52(2) of the IRPA. The
applicant has sought judicial review of the decision to refer, rather than the
decision to remove, no doubt for strategic reasons. The decision by the Immigration
Division was no doubt reasonable and sound, and may be unassailable. Judicial
review is not precluded because one ground is preferred over another; since
leave was granted by this Court for judicial review, since the possibility
exists for the applicant to return according to the IRPA, the issue in this
judicial review is not moot.
Standard of Review
[12]
The applicant argued, on the basis of Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
that the standard of review applicable in this case was reasonableness
simpliciter. The respondent Minister contended that it was patent
unreasonableness, based on the four factors of the pragmatic and functional
approach: "the presence or absence of a privative clause or statutory right
of appeal; the expertise of the tribunal relative to that of the reviewing
court on the issue in question; the purposes of the legislation and that
provision in particular; and, the nature of the question-law, fact, of
mixed law and fact." (Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226, para. 26).
[13]
In this case, the issue as to whether the
standard is one of reasonableness simpliciter or patent unreasonableness will
not be determinative to granting judicial review. According to the evidence, it
would seem that the decision to refer was reasonable. As the Supreme Court of
Canada has stated many times (Law Society of New Brunswick v. Ryan,
[2003] 1 S.C.R. 247; Canada (Director of Investigation and Research,
Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 ) the reasonable
decision is not necessarily the one that the reviewing court would have
reached, but one which is supported by the facts in evidence. In deciding not
to stay the deportation, Justice Rouleau wrote that there was no serious issue
which could satisfy the first requirement to granting the stay, because the
decision was reasonable and the various factors mentioned by the applicant to
challenge it were not sufficient to show it to be unreasonable.
[14]
I agree that the decision to refer the case was
reasonable. The decision is based on the report itself, which emphasizes the
gravity of the offence and the length of the sentence. Another
decision-maker might have been moved by the letters sent in by the family and
decided not to refer the report to the Immigration Division. However, there are
certainly reasonable grounds to support the decision to refer. Again, the
standard of reasonableness does not imply, according to the jurisprudence of
the Supreme Court of Canada, that the reviewing court would necessarily have
arrived at the same result, but only that there are sufficient grounds to
justify the decision. Thus, even accepting the standard proposed by the
applicant, the decision would withstand the test of reasonableness.
[15]
The question is not whether the Minister's
delegate properly applied the guidelines or gave enough weight to relevant
factors, but whether there is any evidence that Ms. Hill failed to consider the
appropriate factors.
[16]
There is no evidence that the Minister's
delegate made a reviewable error that would justify this Court's intervention.
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