Date: 20121220
Docket: IMM-4994-11
Citation: 2012 FC 1534
Ottawa, Ontario, December 20, 2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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SUKHCHAINPREET
SINGH SIDHU
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Applicant
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and
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THE MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of
the Immigration Appeal Division (IAD) which dismissed an appeal from the
Applicant for want of jurisdiction. The Applicant appealed an Immigration
Division (ID) decision which found him inadmissible on grounds of serious
criminality pursuant to s 36(1)(b) of the Immigration and Refugee Protection
Act , SC 2001, c 27 (IRPA). The IAD determined, pursuant to s 64 of IRPA,
that it did not have jurisdiction to hear the merits of the appeal or to make
an interlocutory determination because the Applicant was inadmissible for
organized criminality.
Background
[2]
As a result of a conviction in the United States for smuggling drugs from Canada, the Applicant became the subject of a s 44(1) IRPA
Report on the basis that he was inadmissible to Canada for organized
criminality pursuant to s 37(1)(b) of IRPA, specifically transnational
crime. The IAD to be inadmissible to Canada for serious criminality.
[3]
In IMM-3327, relating to the above matter, I held that the
IAD, correctly interpreted section 37(1)(b) of IRPA to include “drug
smuggling” as one of the activities leading to a finding of inadmissibility,
and it reasonably considered the law as it applies to the facts in the case at
bar. Accordingly, I dismissed that application for judicial review.
Decision Under Review
[4]
The decision under review arises from an appeal brought to
the IAD by the Applicant of the ID’s February 3, 2010 decision which found that
the Applicant was inadmissible to Canada under s. 36(1)(b) of IRPA.
The applicant appealed but requested an adjournment pending his application for
leave and judicial review of a second IAD decision that also found the
Applicant inadmissible under s. 37(1)(b) (see IMM-3327-11) The IAD held that it
did not have jurisdiction to hear the appeal pursuant to s 64(1) of IRPA
and dismissed the appeal.
[5]
The IAD noted that on, May 6, 2011, it directed that
written submissions be filed with respect to the jurisdiction of the IAD to
entertain the Applicant’s appeal in light of the second removal order issued
against him on May 2, 2011 on the grounds of organized criminality under s 37(1)(b)
of IRPA. The IAD acknowledged submissions from the Applicant that
indicated that leave for review of the May 2, 2011 decision was being sought.
The Applicant submitted that the IAD should not deal with his appeal from the
February 3, 2010 ID decision until the decision of the Federal Court in the
leave application with respect to the s 37(1)(b) of IRPA finding is
known.
[6]
The IAD held that the issue was a jurisdictional one. The
IAD stated that its jurisdiction was defined by s 63 of IRPA, which
articulates the parameters of that jurisdiction. The IAD noted that while s
63(3) of IRPA provides a right of appeal to the IAD in respect of
permanent residents under removal order, subsection 64(1) of IRPA
qualifies that right.
[7]
The IAD held that as the Applicant was found to be
described in s 37(1)(b) of IRPA and a removal order was issued, there
had been a finding of the Applicant’s inadmissibility on grounds of organized
criminality, one of the exceptions set out in s 64(1) of IRPA. The IAD
states that s 64(1) of IRPA operates to exclude a right of appeal where
there has been a finding of inadmissibility on grounds of organized criminality
and thus the IAD has no jurisdiction with respect to the Applicant’s appeal
from the removal order issued February 3, 2010.
[8]
The IAD further concluded that, having no jurisdiction to
deal with the appeal on its merits, it had no jurisdiction with respect to the
making of an interlocutory decision to postpone the making of a final decision
in the matter to take into account the Applicant’s application for judicial
review of the s 37(1)(b) of IRPA finding. The IAD dismissed the appeal.
Legislation
[9]
Immigration and Refugee Protection Act SC 2001, c 27
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33. The facts that constitute inadmissibility under
sections 34 to 37 include facts arising from omissions and, unless otherwise
provided, include facts for which there are reasonable grounds to believe
that they have occurred, are occurring or may occur.
[…]
63. (3) A permanent resident or a protected person may
appeal to the Immigration Appeal Division against a decision at an
examination or admissibility hearing to make a removal order against them.
[…]
64. (1) No appeal may be made to the Immigration Appeal
Division by a foreign national or their sponsor or by a permanent resident if
the foreign national or permanent resident has been found to be inadmissible
on grounds of security, violating human or international rights, serious
criminality or organized criminality.
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33. Les faits — actes ou omissions — mentionnés aux
articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de
motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent
survenir.
[…]
63. (3) Le résident permanent ou la personne protégée
peut interjeter appel de la mesure de renvoi prise au contrôle ou à
l’enquête.
[…]
64. (1) L’appel ne peut être interjeté par le résident
permanent ou l’étranger qui est interdit de territoire pour raison de
sécurité ou pour atteinte aux droits humains ou internationaux, grande
criminalité ou criminalité organisée, ni par dans le cas de l’étranger, son
répondant.
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Issue
[10]
The issue arising in this case is whether the IAD erred by
finding it lacked jurisdiction to entertain the appeal by the Applicant.
Standard of Review
[11]
The issue of whether the IAD correctly interpreted its
jurisdiction also attracts the standard of correctness Nabiloo v Canada (Minister of Citizenship & Immigration), 2008 FC 125, 323 FTR 258 (Eng).
Analysis
[12]
The Applicant notes the IAD responded to the Applicant’s
request for a postponement of his serious criminality appeal pending the Federal
Court’s determination of the organized criminality matter by refusing to take
jurisdiction for the postponement request. The Applicant argues the IAD’s
decision is extremely short and makes no mention of the factors the IAD is
required to consider when assessing a request for a postponement as required by
Rule 48 of the Immigration Appeal Division Rules, SOR/2002-230 [Rules].
The Applicant submits the decision makes no mention of the fact that the s
37(1)(b) of IRPA decision is the subject of judicial review,
notwithstanding submissions made to that effect.
[13]
The Applicant submits the IAD was required to consider Rule
48 which provides that the IAD “must consider any relevant factors” when
evaluating whether to grant an adjournment. The Applicant submits that Rule
48(4)(j), the “nature and complexity of the matter to be heard,” was a
particular factor that ought to have been considered by the IAD but was not.
[14]
The Applicant submits that Sandy v Canada (MCI) 2004 FC 1468, [2004] FCJ No 1770 [Sandy] provides guidance on the use and
importance of R 48. The Applicant also relies on this Court’s decision in Hardware
v Canada 2009 FC 338, [2009] FCJ no 421 [Hardware] where it was
recognized that the IAD has discretion to refuse or grand adjournments. The
Applicant is not contending that he has an absolute right to an adjournment,
but rather that the IAD fettered its discretion to grant the adjournment by
strictly applying s 64(1) of IRPA without regard for the complexity of
the Applicant’s case.
[15]
The IAD’s jurisdiction to hear an appeal is set out in
sections 63 and 64 of IRPA. Section 64 states that no appeal can be made
to the IAD if the individual has been found to be inadmissible for organized
criminality. In this case, the evidence before the IAD was that the Applicant
had been found inadmissible for organized criminality under s 37(1)(b) of
IRPA.
[16]
In addition, in IMM-3327-11 I decided that the IAD did made
no reviewable errors in its s 37(1)(b) analysis. It correctly and
reasonably found that the Applicant was inadmissible for organized criminality
due to his participation in the activity of drug smuggling in a transnational
organized criminality context.
[17]
In my view, the IAD correctly held that it did not have
jurisdiction to hear the Applicant’s appeal of the ID’s s 36(1) finding.
[18]
The Applicant’s argument that the IAD was required to
consider the factors set out in Rule 48 must be rejected. Rule 48 sets out a
number of factors to be taken into consideration when the IAD has jurisdiction
to consider whether to grant an adjournment or not. In this case, s 64 of
IRPA operates to deny the IAD jurisdiction to hear the appeal. The IAD was
not engaged in determining whether or not to grant the adjournment, but rather
whether the IAD had the jurisdiction to do so. The IAD correctly determined
that it did not have jurisdiction to hear both the request for the postponement
and the appeal, since it had decided that the Applicant was inadmissible under
s 37(1)(b) of IRPA.
[19]
Finally, there was no requirement to consider the factors
in Rule 48 concerning postponements. With regard to the submission by the
Applicant that the IAD should have granted an adjournment even if the IAD did
not have jurisdiction, at that time, to hear the merits of the appeal, this
argument should also be rejected. In Nabiloo, at para 4, Justice Snider
stated, “a tribunal that does not have jurisdiction to decide a matter does not
have jurisdiction to consider preliminary or interlocutory issues pertaining to
that matter”. As the IAD was without jurisdiction to hear the Applicant’s s
36(1) appeal, it was without jurisdiction to consider the adjournment. The IAD
made no errors in this regard.
[20]
In conclusion, the
IAD’s decision stands. As the IAD had already correctly found that the
Applicant was inadmissible for organized criminality under s 37(1)(b) of
IRPA, the IAD was correct in determining that s 64 precluded it from
hearing the Applicant’s s 36(1) appeal.
[21]
The Applicant’s application for judicial review must be
dismissed.
JUDGMENT
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
"Leonard
S. Mandamin"
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