Date: 20101203
Docket: IMM-5402-09
Citation: 2010 FC 1222
Ottawa, Ontario, December 3, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
WINSTON
MCLAWRENCE ABRAMS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, a permanent resident of Canada, seeks judicial review of a decision
of the Immigration Appeal Division of the Immigration and Refugee Board (the Appeal
Board) which upheld two lower level immigration decisions, both finding the
applicant to be inadmissible. The first was an August 13, 2007 decision by a visa
officer finding the applicant inadmissible pursuant to subsection 41(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for failing to
comply with the residency obligation contained in section 28 of the Act. The
second was a determination by a member of the Immigration Division of the Immigration
and Refugee Board (the Board) that the applicant was a person described by paragraph
36(1)(b) of the Act in that he was convicted of an offence outside Canada which,
if committed in Canada, would constitute an offence under an act of Parliament
punishable by a maximum sentence of at least ten years.
[2]
The
applicant seeks an order setting aside the decision of the Appeal Board and
remitting the matter back to a differently constituted panel of the Appeal
Board for a new hearing.
Background Facts
[3]
The applicant is a citizen of Antigua.
He was sponsored to come to Canada and was
landed in 1976. The applicant left Canada four years later and has only made
some short visits to Canada in the
subsequent 30 years.
[4]
In 1980, the applicant went to live with his father in New
York City. He received a number of criminal convictions between 1981 and
1993. He was deported from the U.S. to Guyana
in 1992 and again in 1995. In 1995, he left Guyana and moved to Antigua where
he remained until he travelled to Canada in 2006 to
visit his mother and sister.
[5]
On March 11, 2007, the applicant returned to Canada.
He then attempted to travel to the U.S. but because
of his past criminal convictions and deportation, he was charged with entering
the U.S. illegally and served a two month sentence. He
returned to Canada on May 14, 2007. Upon his return, the applicant
was interviewed and it was determined in a report under subsection 44(1) of the
Act that the applicant was inadmissible on the two separate grounds alluded to
above, namely, criminality under paragraph 36(1)(b) of the Act and failure to
comply with his residency obligations under section 28.
[6]
On May 26, 2007, the applicant left Canada and returned to Antigua
having promised immigration authorities that he would return to Canada
for his admissibility hearing. He returned to Canada
on December 27, 2007 and has remained since.
[7]
Inadmissibility with respect to residency obligations was decided
by a visa officer in a decision dated August 13, 2007. The removal order was
determined by a Board member after an admissibility hearing held on June 10,
2008. The applicant sought an appeal of both decisions.
[8]
On August 27, 2009, the Appeal Board convened a hearing and in a
decision dated October 7, 2009, dismissed the applicant’s appeals. The Appeal
Board determined that both inadmissibility decisions were correct and legally
valid. The Appeal Board then turned to humanitarian and compassionate (H&C)
factors. It found that it did not have to consider the Ribic v. Canada
(Minister of Employment and Immigration), [1985]
I.A.B.D. No. 4, factors specifically because those factors were not relevant to
his residency obligation. Yet the Appeal Board nevertheless considered allowing
the appeal on H&C factors as well as special considerations. After a
lengthy analysis the Appeal Board concluded:
[52] The refusal to issue a
travel document is valid in law. The appellant’s breach of his residency
obligation for the five year period under consideration is almost total save
for 90 days presence in Canada when, according to the appellant, he had no
intention of remaining in Canada as a permanent resident.
[53] In the final analysis,
the panel has attempted to integrate all of the various facts of the
appellant’s life. The appellant is poorly established in Canada. To the extent
that he is established this has occurred almost entirely since he returned to Canada in December 2007.
Prior to December 2007 the applicant had no degree of establishment in Canada. Any
establishment in Canada was lost in 1980 when he voluntarily left for the US. Until 2006 he
showed no intention to return to Canada and then only temporarily as a visitor. Only
after December 2007 did the applicant have a change of heart and he now desires
to remain. In terms of what Canada should expect of immigrants and the
objectives of immigration the appellant’s change of heart is too little too
late and certainly insufficient to overcome the legal impediment to his
remaining in Canada.
[54] While the appellant is
married, he is currently prohibited from seeing Ms. Gilbert, who is not a
permanent resident of Canada and who had no right to remain here. His claim to wanting [sic]
to continue the marriage and to sponsor Ms. Gilbert is inconsistent with his
claim that he does not know her whereabouts. Ms. Gilbert is in Canada as a visitor and
does not have permanent resident status. According to the appellant he has been
responsible for the extension of her temporary resident status. Regardless, the
appellant is free to re-establish his relationship with Ms. Gilbert in Antigua.
[55] By his own admission the
appellant’s family is indifferent to him which implies that they would face no
hardship if he were to be removed from Canada. He was
voluntarily separated from his mother for many years, although there is
evidence that he did visit.
[56] In respect of the
hardship to the appellant the panel cannot conclude that he would face any
discernable hardship in being returned to Antigua where he is a
citizen. The appellant chose to live there for many years, his status as a
permanent resident of Canada notwithstanding. Indeed, when he was interviewed in 2007 the
appellant told the immigration officer that he desired to return immediately to
his current country of residence, Antigua. He testified that when he travelled
to the US in March of 2007
it was his intention to return to Antigua with his son where his business was
still a going concern.
[57] The appellant has spent
more time outside of Canada than he has spent here. He will face no cultural shock as he is
of the Caribbean and he speaks the
language and has recent familiarity with the social and economic environment.
He is intelligent and has demonstrated his ability to set up a business in the
computer field.
[58] Finally the best
interests of the child are not determinative of the appeal. The appellant has custody
of his infant Canadian citizen child whose mother is a citizen of Antigua
present in Canada as a visitor. The appellant’s removal will likely see Ms.
Gilbert’s removal to Antigua where she can be reunited with her son if she so
chooses. There is no compelling reason that would require that the child remain
in Canada. He is still an
infant and his best interests are to be with his father (and mother) which his
father’s removal to Antigua will not prevent. The child will have the option of returning to Canada at a later date.
[9]
The applicant does not argue that the decision is unreasonable,
but rather argues in this judicial review application that he was not afforded
a fair process at his Appeal Board hearing.
Issues
[10]
The
issue is as follows:
1. Did the Appeal Board
deny the applicant his right to counsel or otherwise fail to afford the
applicant a fair hearing?
Applicant’s Written
Submissions
[11]
The
applicant was denied the opportunity to properly present his case to the Appeal
Board. Counsel for the applicant did not appear on the hearing date through no
fault of the applicant. The applicant was very concerned about and attempted to
discuss the matter at the commencement of the hearing, but the Appeal Board
member refused to discuss the matter or hear any submissions on the need for
counsel or for a request for an adjournment and decided that the matter would
proceed without counsel. The Appeal Board member acted in a high handed fashion
as the Appeal Board is required by law to consider a variety of factors in
those situations and to hear from the applicant with respect to an adjournment.
[12]
The
applicant also submits that the Appeal Board showed a bias throughout the
hearing and acted in an unfair manner to the self-represented applicant. The Appeal
Board used jargon, for example, by referring to Ribic above factors
without explaining what that meant. This denied the applicant the opportunity
to know the case he had to meet. It was also unfair for the Board to have let
the respondent’s representative present argument first.
Respondent’s Written
Submissions
[13]
The
respondent submits that there is no evidence on the record that the applicant
objected to proceeding without counsel.
[14]
In
response to the applicant’s argument, the respondent submits that the applicant
has failed to show any evidence that but for the alleged breach of procedural
fairness, the Appeal Board’s decision would have been different. The only
evidence submitted by the applicant on judicial review speaks to criminal
rehabilitation and is not at all relevant to the factors considered by the Appeal
Board in coming to its determination that there were insufficient H&C
factors.
[15]
Finally,
the respondent submits that the applicant’s allegation of bias lacks any merit.
The applicant has failed to produce evidence that the Appeal Board member acted
overzealously or in a fashion which would raise a reasonable apprehension of
bias.
Analysis and Decision
[16]
The
respondent indicated at the hearing that he was not relying on the section 71
argument. Hence, I will not deal with this issue as to whether the applicant
failed to pursue a statutory remedy before commencing a judicial review
application.
[17]
Issue
1
Did the IAD
deny the applicant his right to counsel, or otherwise fail to afford the
applicant a fair hearing?
The applicant was never denied
the right to have counsel present. The real issue is whether the Appeal Board
member ought to have suspended proceedings and considered the applicant’s claimed
request that the matter be adjourned until a time when his counsel could be
present. A related issue is whether the Appeal Board member ought to have
considered the matter on his own initiative.
[18]
The
following exchange took place at the commencement of the Appeal Board hearing:
Presiding Member: [Opening remarks] … The
appellant is present and is not represented by counsel. Is that correct Mr.
Abrams?
Appellant: Yes.
Presiding Member: You were previously
represented by Mr. Prescod.
A: I still am but I have some outstanding
balance and as I understood it he would have showed up this morning.
Presiding Member: Respondent is the
Minister of Public Safety and Emergency Preparedness and is represented by Mr.
Dale Munro. Good Morning Mr. Munro.
Minister’s Counsel: Good morning sir.
[19]
This
appears to be the only time that the issue of the applicant’s counsel was
discussed. The applicant did not ask if the proceedings could be adjourned in
order to have counsel present, nor did he submit that it would be unfair for
the hearing to proceed without counsel. Thus, I would dismiss the applicant’s
present claim that the Appeal Board ought to have considered and made a
decision on those submissions. The submissions were never made.
[20]
The
only remaining matter is whether the Appeal Board ought to have paused the
hearing on its own initiative to consider the matter. The applicant asserts now
that if allowed to make submissions on the matter, he could have told the Appeal
Board how important it was for him to have counsel and that the Appeal Board
would have had to consider those submissions. The applicant relies on Mervilus
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1206, 32 Admin. L.R. (4th) 18, in
which Mr. Justice Harrington held that the Appeal Board, on an application to
adjourn for the purposes of obtaining counsel, ought to base its decision on
(i) the complexity of the case, (ii) the consequences of the decision, and
(iii) whether the individual had the ability to properly present his case (at
paragraph 25). However, Mervilus above, does not apply to the
present application because in that case, the applicant specifically asked the
panel to consider adjourning the hearing.
[21]
Despite
the fact of not having counsel present, the applicant did have a fair hearing.
The applicant did not state that he was not prepared or that he needed more
time. As well, I have come to the conclusion that the member did not err in not
applying the Ribic above factors.
[22]
I
have reviewed the reasons for the decision and I find that the reasons were
detailed and adequate. As the Board had no request to adjourn the hearing, it
did not decide not to allow an adjournment.
[23]
The
applicant submitted that the Board member was biased, however, from a review of
the transcript of the hearing, I cannot come to such a conclusion.
[24]
There
was also a submission that the Board member failed to consider the factors
contained in Rule 48(4) of the Immigration Appeal Division Rules, SOR/2002-230.
A review of this rule shows that it applies to an application to change the
date of the hearing. In the present case, there was no application or request
to change the date of the hearing or to adjourn the hearing. The Board member
made no error in this regard.
[25]
The
application for judicial review is therefore dismissed.
[26]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[27]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee
Protection Act,
S.C. 2001, c. 27
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28.(1) A permanent resident must comply
with a residency obligation with respect to every five-year period.
(2) The
following provisions govern the residency obligation under subsection (1):
(a) a
permanent resident complies with the residency obligation with respect to a
five-year period if, on each of a total of at least 730 days in that
five-year period, they are
(i) physically
present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or
common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or
in the federal public administration or the public service of a province,
(iv) outside
Canada accompanying a permanent resident who is their spouse or common-law
partner or, in the case of a child, their parent and who is employed on a
full-time basis by a Canadian business or in the federal public
administration or the public service of a province, or
(v) referred
to in regulations providing for other means of compliance;
(b) it is
sufficient for a permanent resident to demonstrate at examination
(i) if they
have been a permanent resident for less than five years, that they will be
able to meet the residency obligation in respect of the five-year period
immediately after they became a permanent resident;
(ii) if they
have been a permanent resident for five years or more, that they have met the
residency obligation in respect of the five-year period immediately before
the examination; and
(c) a
determination by an officer that humanitarian and compassionate
considerations relating to a permanent resident, taking into account the best
interests of a child directly affected by the determination, justify the retention
of permanent resident status overcomes any breach of the residency obligation
prior to the determination.
. . .
36.(1) A
permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
. . .
(b) having
been convicted of an offence outside Canada that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years; or
. . .
41. A person is inadmissible for failing
to comply with this Act
. . .
(b) in the
case of a permanent resident, through failing to comply with subsection 27(2)
or section 28.
. . .
71. The
Immigration Appeal Division, on application by a foreign national who has not
left Canada under a removal order, may reopen an
appeal if it is satisfied that it failed to observe a principle of natural
justice.
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28.(1)
L’obligation de résidence est applicable à chaque période quinquennale.
(2)
Les dispositions suivantes régissent l’obligation de résidence :
a) le résident
permanent se conforme à l’obligation dès lors que, pour au moins 730 jours
pendant une période quinquennale, selon le cas :
(i) il est
effectivement présent au Canada,
(ii)
il accompagne, hors du Canada, un citoyen canadien qui est son époux ou conjoint
de fait ou, dans le cas d’un enfant, l’un de ses parents,
(iii) il
travaille, hors du Canada, à temps plein pour une entreprise canadienne ou
pour l’administration publique fédérale ou provinciale,
(iv)
il accompagne, hors du Canada, un résident permanent qui est son époux ou
conjoint de fait ou, dans le cas d’un enfant, l’un de ses parents, et qui
travaille à temps plein pour une entreprise canadienne ou pour
l’administration publique fédérale ou provinciale,
(v) il se
conforme au mode d’exécution prévu par règlement;
b)
il suffit au résident permanent de prouver, lors du contrôle, qu’il se
conformera à l’obligation pour la période quinquennale suivant l’acquisition
de son statut, s’il est résident permanent depuis moins de cinq ans, et, dans
le cas contraire, qu’il s’y est conformé pour la période quinquennale
précédant le contrôle;
c)
le constat par l’agent que des circonstances d’ordre humanitaire relatives au
résident permanent — compte tenu de l’intérêt supérieur de l’enfant
directement touché — justifient le maintien du statut rend inopposable
l’inobservation de l’obligation précédant le contrôle.
. .
.
36.(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
. .
.
b)
être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
. .
.
41.
S’agissant de l’étranger, emportent interdiction de territoire pour manquement
à la présente loi tout fait — acte ou omission — commis directement ou
indirectement en contravention avec la présente loi et, s’agissant du
résident permanent, le manquement à l’obligation de résidence et aux
conditions imposées.
. .
.
71.
L’étranger qui n’a pas quitté le Canada à la suite de la mesure de renvoi
peut demander la réouverture de l’appel sur preuve de manquement à un
principe de justice naturelle.
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Immigration
Appeal Division Rules,
SOR/2002-230
|
48.(1) A party may make an application to
the Division to change the date or time of a proceeding.
. . .
(4) In
deciding the application, the Division must consider any relevant factors,
including
(a) in the
case of a date and time that was fixed after the Division consulted or tried
to consult the party, any exceptional circumstances for allowing the
application;
(b) when the
party made the application;
(c) the time
the party has had to prepare for the proceeding;
(d) the
efforts made by the party to be ready to start or continue the proceeding;
(e) in the
case of a party who wants more time to obtain information in support of the
party’s arguments, the ability of the Division to proceed in the absence of
that information without causing an injustice;
(f) the
knowledge and experience of any counsel who represents the party;
(g) any
previous delays and the reasons for them;
(h) whether
the time and date fixed for the proceeding were peremptory;
(i) whether
allowing the application would unreasonably delay the proceedings; and
(j) the nature
and complexity of the matter to be heard.
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48.(1)
Toute partie peut demander à la Section de changer la date ou l’heure d’une
procédure.
. . .
(4)
Pour statuer sur la demande, la Section prend en considération tout élément
pertinent. Elle examine notamment :
a) dans le cas
où elle a fixé la date et l’heure de la procédure après avoir consulté ou
tenté de consulter la partie, toute circonstance exceptionnelle qui justifie
le changement;
b) le moment
auquel la demande a été faite;
c) le temps
dont la partie a disposé pour se préparer;
d)
les efforts qu’elle a faits pour être prête à commencer ou à poursuivre la
procédure;
e) dans le cas
où la partie a besoin d’un délai supplémentaire pour obtenir des
renseignements appuyant ses arguments, la possibilité d’aller de l’avant en
l’absence de ces renseignements sans causer une injustice;
f) dans le cas
où la partie est représentée, les connaissances et l’expérience de son
conseil;
g)
tout report antérieur et sa justification;
h) si la date
et l’heure qui avaient été fixées étaient péremptoires;
i) si le fait
d’accueillir la demande ralentirait l’affaire de manière déraisonnable;
j)
la nature et la complexité de l’affaire.
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