Date: 20090921
Docket: IMM-1202-09
Citation: 2009 FC 941
Ottawa, Ontario, September 21, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
SHAMINDER
KANG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Immigration Appeal Division (the IAD) of the Immigration and Refugee Board dated
February 25, 2009, where it reopened Shaminder Kang’s (the Respondent)
appeal of a deportation order.
Issues
[2]
The
Applicant raises the following issues:
(a)
Did
the IAD apply the correct legal test for reopening an appeal?
(b)
Did
the IAD misconstrue what is meant by a breach of natural justice?
[3]
The
application for judicial review shall be allowed for the following reasons.
Factual Background
[4]
The
Respondent is a citizen of India who became a permanent resident of Canada in 1977. He
never became a Canadian citizen. He was convicted of numerous criminal offences
including assault (June 2003 and July 2006) and theft (October 2004).
[5]
On
November 30, 2007, the Respondent was convicted of assault with a weapon and of
uttering threats, under paragraphs 267(a) and 264.1(1)(a) of the Criminal
Code, R.S.C. 1985, c. c-46 respectively.
[6]
As
a result of those convictions, a report was made on January 28, 2008, under
section 44 of the Act alleging that the Respondent is criminally inadmissible
to Canada under
subsection 36(1). That report was referred to the Immigration Division (the ID)
of the Immigration and Refugee Board on February 8, 2008.
[7]
The
ID commenced the admissibility hearing on March 14, 2008, but adjourned the
hearing for two months in order to allow the Respondent an opportunity to
consult legal counsel. On May 14, 2008, the ID once again adjourned to
allow the Respondent time to consult legal counsel. On May 29, 2008, the ID
resumed the admissibility hearing.
[8]
At
that hearing, the Respondent admitted the inadmissibility allegations contained
in the report and a deportation order was made against him.
[9]
On
the day following the inadmissibility hearing, the Respondent filed a Notice of
Appeal to the IAD appealing the deportation order.
[10]
On
September 30, 2008, the IAD held a scheduling hearing. The Respondent received
notice but failed to attend or provide an explanation for his absence.
[11]
On
October 21, 2008, the IAD held an abandonment hearing in the Respondent’s appeal,
of which he was given notice. The Respondent did not attend and the IAD made an
order dismissing the appeal as abandoned.
Impugned Decision
[12]
On
November 28, 2008, counsel for the Respondent filed an application before the
IAD seeking an order to reopen the Respondent’s appeal of the deportation order
pursuant to section 71 of the Act. The Respondent alleged there was a breach of
natural justice in the proceeding before the IAD as he was not represented by a
designated representative and suffered from alcoholism which required such
representation. The Minister (the Applicant) opposed the reopening.
[13]
In
a decision issued on February 25, 2009, the IAD allowed the appeal and ordered
the deportation appeal to be reopened.
[14]
The
IAD reproduced several passages from the transcript of the proceeding before
the ID in its reasons. The IAD also noted that as part of the application to
reopen, the Respondent had provided some notes from his doctor and declarations
from relatives to the effect that he was suffering from alcoholism, drug
dependency and other medical ailments to support his claim that he was unable
to truly appreciate the significance of the proceedings at the IAD.
[15]
The
IAD then concluded there was some information before it that could imply a lack
of understanding of the process. The IAD based this conclusion on excerpts from
the transcript of the ID proceedings where the Respondent made comments that
the IAD described as “non sequiturs as they do not appear to logically connect
to the comment by the presiding member” (Shaminder Kang v. The
Minister of Public Safety and Emergency Preparedness (February 25, 2009),
VA8-02108 at paragraph 8 (IAD) (IAD Reasons)).
Relevant Legislation
[16]
Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
|
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.
|
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.
|
The Appellant’s
Arguments
[17]
Firstly,
the Appellant submits that the IAD exceeded its jurisdiction to reopen appeals under
section 71 of the Act which explicitly restricts its jurisdiction to reopen an
appeal from a deportation order to cases where the IAD finds that it has,
itself, failed to observe a principle of natural justice.
[18]
In
the reasons for reopening the appeal, the IAD does not identify any actual
breaches of natural justice on the part of the IAD in the Respondent’s case but
simply a possibility that he lacked an understanding of the process. Moreover,
in the reasons, the IAD relies on evidence from the proceedings before the ID and
not the IAD.
[19]
Secondly,
the Appellant submits that the IAD erred in law in misconstruing the scope of a
breach of natural justice. Specifically, what natural justice entails when an
individual’s mental incapacity is such that the principles of natural justice
would require a designated representative to be appointed.
[20]
The
Appellant draws attention to the Immigration Appeal Division Rules,
S.O.R./2002-230 (Immigration Appeal Division Rules) at subsection 19(1) which put
the onus of seeking a designated representative on counsel and not on the IAD
itself.
[21]
The
Appellant also holds that the threshold for a breach of natural justice by
reason of incapacity is much higher that a possible lack of understanding. In
order for there to be a breach of natural justice, there must be evidence on
the record that the individual suffers from a mental illness (Mattia v.
Canada (Minister of Employment and Immigration), [1987] 3 F.C. 492) (T.D.)
(Mattia) or that the individual was effectively deprived of the ability
to make a free, informed and independent decision caused by some form of
psychological duress (Kaur v. Canada (Minister of Employment
and Immigration), [1990] 2 F.C. 209 (C.A.)).
[22]
The
Appellant emphasizes that there was little evidence before the IAD as to the
Respondent’s alleged mental illness and that the IAD granted the appeal on the
basis that there was evidence that could imply a lack of understanding.
[23]
The
Respondent submits that the IAD decision to reopen the appeal was
appropriate. He relies on this Court’s decision in Aslam v. Canada
(Minister of Citizenship and Immigration), 2004 FC 514, [2004] F.C.J. No.
620 (QL) where it was held that procedural rules should be interpreted and
applied in a way that does not compromise the right to a full and fair hearing.
[24]
The
Respondent also alleges that, in using the ID decision, the IAD made
inferential findings that there was a breach of natural justice.
[25]
The
Respondent holds that the medical evidence before the IAD was sufficient to
show the medical and psychiatric impairments that he was suffering when the
proceedings before the IAD were initiated.
[26]
The
Respondent also relies on sections 57 and 58 of the Immigration
Appeal Division Rules which allow the IAD to deal with matters arising during
appeals for which there are no provisions as it sees fit and to act on its own
initiative and vary certain procedural requirements, in arguing that the IAD
can appoint a designated representative when it sees fit.
[27]
The
Respondent also alleges that the IAD decision is interlocutory in nature. Therefore,
the Court should not consider the Applicant’s application for judicial review.
Analysis
Did the IAD apply the
correct legal test for reopening an appeal?
Standard of review
[28]
The
question as to whether or not the IAD applied the correct legal test for
reopening an appeal is a question of law that attracts a standard of
correctness (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 (Dunsmuir)).
[29]
The
enabling statutory provision and the jurisprudence of this Court makes it quite
clear that in order for an appeal to be reopened, the IAD must be satisfied
that it has itself failed to observe a principal of natural justice (Ye
v. Canada (Minister of Citizenship and Immigration), 2004 FC 964,
254 F.T.R. 238; Nazifpour v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 35, [2007] 4 F.C.R. 515; Canada (Minister of
Citizenship and Immigration) v. Ishmael, 2007 FC 212, 309
F.T.R. 147; Wilks v. Canada (Minister of Public Safety and
Emergency Preparedness), 2009 FC 306, [2009] F.C.J. No. 354 (QL) (Wilks)).
Paragraph 40 in Wilks states that:
While s. 71 of IRPA exists to prevent the
person concerned from being prejudiced by an error of the IAD, it does not
permit a person concerned to benefit from his own actions or omissions. …
[30]
The
IAD had to ask itself whether it had committed an error, a breach of natural
justice, that prejudiced the Respondent in dismissing the appeal for
abandonment. The breach must be the fault of the IAD.
[31]
In
this case, the Respondent was given notice of all of the steps in the appeal
process that lead to the order to dismiss the appeal for abandonment. He also
had time to seek counsel to represent him and attend the hearing. None of these
facts are disputed by the Respondent.
[32]
The
reasons given by the IAD are based almost entirely on the transcript from the
proceedings at the ID. There is no indication in the reasons that it asked the
question as to whether or not the IAD committed an error that amounted to a
breach of natural justice and its evaluation of the evidence does not allow one
to infer such a conclusion.
Did the IAD misconstrue
what is meant by a breach of natural justice?
[33]
In
its reasons, the IAD stated:
… Appellant’s counsel suggests that a
designated representative should have been appointed.
…..While no request was made for a
designated representative in the ID or the IAD, there was some information
before the IAD that could imply a lack of understanding of the process, as
alleged by the appellant’s counsel. In that respect I refer to the comments
from the hearing at the ID….. (IAD Reasons, at paragraphs 7 and 8)
[34]
It
is difficult to tell from this comment whether or not the IAD did indeed
conclude that the onus lies on the IAD to ascertain if a designated representative
should be appointed. There is no statutory duty for the IAD to do so. The Immigration
Appeal Division Rules do not put an onus on the IAD but rather leaves the door
open to counsel of either party to make such a request (section 19).
[35]
In
past cases, appeals have been ordered reopened when mental illness was proven
to be the cause of an inability to understand proceedings and their
ramifications. Mattia is the case relied upon by both parties. In that
case, the appellant suffered from schizophrenia and had received treatment
during the appeal period; the evidence presented in that case included
diagnoses by immigration medical officers, the appellant’s own testimony and
documentary evidence of hospitalization.
[36]
The
IAD did not make any mention as to whether or not the declarations sworn by
some of the Respondent’s relatives held any weight in the decision or were in
any way persuasive. It also noted that a doctor’s notes had been provided. The
medical evidence before the IAD was clearly not of the same nature of that
provided in Mattia. Beyond mentioning its existence, the IAD did not
refer to the medical evidence in its reasons nor did it evaluate it or seemed
to rely on it.
[37]
On
the whole, the reasons provided by the IAD do not provide much insight into the
grounds relied upon it in the granting of the appeal or how exactly the IAD
found that natural justice had been breached by the ID in declaring the appeal
as being abandoned. The only thing that is clear is that the IAD felt that, at
the ID hearing, the Respondent showed signs of not fully understanding the
proceedings. That is not sufficient to support the conclusion that the ID caused
a breach of natural justice in dismissing the appeal as abandoned.
[38]
In
Nazifpour, above, the Federal Court of Appeal at paragraph 74 was clear:
If the purpose of enacting section 71 was
not to exclude the IAD's right to reopen a decision for any reason other than a
breach of a principal of natural justice, it is difficult to see what purpose
the provision serves. …
[39]
The
decision in the case at bar does not fall in the acceptable range of possible
outcomes in view of the law and the facts of this case.
[40]
The
Court's intervention is warranted.
[41]
No
question of general importance was submitted and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review is allowed. The matter is remitted back for redetermination by a newly
constituted panel of the Immigration Appeal Division. No question is certified.
“Michel
Beaudry”
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