Date: 20110112
Docket: IMM-2136-10
Citation: 2011 FC 31
Toronto, Ontario, January 12,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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NAREEZA PERSAUD
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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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 Appeal Division of
the Immigration and Refugee Board dated March 29, 2010 wherein the Applicant’s
appeal against a removal order made against her by the Immigration Division of
that Board was dismissed. For the reasons that follow I am allowing the
applications, quashing the decision of the Appeal Division with a recommendation
that the matter be, in turn, sent back to the Immigration Division for a
hearing de novo.
[2]
The
facts of this case are somewhat unusual. The Applicant is an adult female
citizen of Guyana. On August
18, 2003 she married Muniraj Persaud, a Canadian citizen, in Guyana. Her husband
shortly thereafter returned to Canada and sponsored an application by the
Applicant to come to Canada as a member of the family class. On
October 5, 2003 the Applicant entered Canada on that basis.
[3]
The
Applicant was interviewed by a Minister’s Delegate on September 28, 2006, the
purpose of that interview had not been previously disclosed to the Applicant,
the Applicant did not have a lawyer present and was not advised that she could
have a lawyer present. The Minister’s Delegate prepared a Narrative Memoranda
in which reference to the interview was made as well as reference to a
statutory declaration of the husband which was said to have been attached but
there is no record of that declaration in the file. That Memoranda recommended
deportation of the Applicant stating, inter alia, that the Applicant had
entered into a bad faith marriage.
[4]
An
Admissibility Hearing was held on May 28, 2008 before a Member of the
Immigration Division. The Applicant was represented by Counsel and was
examined. Counsel made representations including the impropriety of the
September 28, 2006 interview and the failure of the Minister to provide the
husband’s statutory declaration referred to in the Narrative Memoranda.
[5]
The
Member of the Immigration Division gave a written decision dated June 9, 2008
in which it was determined that the Applicant was inadmissible because she
entered into a non-genuine marriage for the sole purpose of obtaining Canadian
permanent residency. As an alternative, the Member determined that even if the
Applicant had entered into the marriage in good faith, she failed to disclose
her subsequent resolve not to reside with her husband. In the Reasons the
Member, at paragraph 11, acknowledged that the September 28, 2006 interview was
conducted in breach of a duty of fairness, therefore nothing would be made of
the alleged contradictions between what was said there and other sources.
[6]
An
appeal from that decision was taken before Panel (a single member) of the
Immigration Appeal Division. The Applicant was represented by Counsel and was
examined before the Panel. Her Counsel made representations to the Panel. The
Panel, on March 29, 2010, gave the decision at issue here denying the appeal. The
Panel found that the Immigration Division Member, having found the initial interview
to be seriously tainted, should have sent the whole matter back to be started
over. The Panel said at paragraphs 9 to 14 of its Reasons:
[9] The panel notes with interest that
Minister’s counsel during this appeal made no attempt to refute the concern of
counsel for the appellant as to the facts behind the circumstances behind the
interview, and the panel, therefore, has reason to believe that in fact the appellant
was called into the interview without a full understanding that she would be
subject to removal from Canada as a result of her answers given at the
interview.
[10] In the panel’s opinion, this
contradicts procedural fairness and in itself is a breach of natural justice.
The panel notes with interest that in his decision, at page 5 of the Record,
the Immigration Division Member states the following at paragraph 11:
I agree with counsel that the interview
at CIC Etobicoke was conducted in breach of the duty of fairness owed to the Respondent
by Citizenship and Immigration Canada. She was not informed of the purpose of the hearing, was
not given a copy of the documents relied on by the officer, and was not advised
that she had the opportunity to have counsel observe the interview or assist
her with written submissions. As a result, I decline to make any adverse
findings concerning alleged contradictions between what was said at the
interview and other sources.
[11] The Immigration Division Member’s
conclusion is sound. However, in an earlier paragraph of his reasons, namely,
at paragraph 8 (found on page 4 of the Record), the Immigration Division Member
states the following:
During the hearing, she
indicated that she never lived with the sponsor, correcting a statement to the
contrary made during the CIC Etobicoke interview.
[12] It is true that the Immigration
Division Member then goes on to state that he would not made any adverse
findings concerning alleged contradictions between what was said in the
interview and other sources, but in the panel’s opinion he should not have
referred to a specific contradiction if he was not going to consider the
interview.
[13] But more importantly, in the panel’s
opinion, having come to the conclusion that the whole interview was seriously
tainted, the Immigration Division Member should have, at that point, come to
the conclusion that this appellant had not been dealt with fairly and should
have sent the whole matter back to CIC and have them start over.
[14] Surely, it is obvious from the
Record that the interview of the appellant was instrumental in the Immigration
officer’s conclusion that the matter should have been referred to the
Immigration Division.
[7]
The
Panel then discussed in its Reasons further difficulties arising out of the
Immigration Member’s Division, stating that certain conclusions reached were
speculation. The Panel concluded at paragraph 24 of its reasons that there was
a breach of natural justice and the decision of the Member of the Immigration
Division was not valid in law:
[24] It follows, therefore, that there
has been a breach of natural justice in this decision and the decision in not
valid in law.
[8]
However,
the Panel did not stop there, it asked for submissions from Counsel as to
whether it should substitute its own decision rather than referring the matter
back. The Panel offered its interpretation of the Supreme Court of Canada
decision in the Mobil Oil case (Mobil Oil Canada Ltd. v.
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202).
[25] However, notwithstanding this
finding, the panel indicated to both counsel that it wished to hear submissions
on whether this panel could substitute its own decision rather than referring
this matter back to the Immigration Division.
[26] The panel referred counsel to prior
decisions and received submissions at this point.
[27] The law has been clearly set out by
Madam Justice Layden-Stevenson in Qu. At paragraph 26 of this decision, Madam
Justice Layden-Stevenson states that the law is that ordinarily a breach of
procedural fairness voids the hearing and the resulting decision, but an
exception to this rule exists.
[28] She then states that the exception
arises from Mobil Oil, where the Supreme Court of Canada explained that a breach of
procedural fairness does not require a new hearing in “special circumstances”
where the claim in question is otherwise “hopeless” or the outcome reached was
“inevitable”.
[9]
The
Panel then reviewed the evidence before it. Applicant’s Counsel submits that
some errors were made. The Panel concluded that the Applicant’s story was not
plausible. At paragraphs 47 and 48 of its Reasons the Panel wrote:
[47] The panel has come to this
conclusion based solely on the evidence of the appellant and has not relied
whatsoever on the tainted documents that were in front of the Immigration
Division Member at the Immigration Division hearing.
[48] The panel is convinced that if an
Immigration Division Member heard the same evidence the panel has heard during
this appeal, the Immigration Division Member would come to the same conclusion
that the panel has reached at this appeal. This would then lead to a further
appeal in front of the Immigration and Refugee Board, with inevitably the same
result.
[10]
The
Panel, however, did not stop there, the ultimate conclusion apparently reached
by the Panel was that there were breaches of natural justice and procedural
fairness despite which, because of the Mobil Oil principle, the case is
hopeless. It wrote at paragraphs 49 and 50:
[49] Given the plausibility concerns of
the panel, it finds that despite the breach of natural justice and the breach
of procedural fairness that took place at the Immigration Division hearing, the
principle enunciated in Mobil Oil applies. The appellant’s case is hopeless and
her lack of success is inevitable.
[50] The appeal is dismissed.
ISSUES
[11]
The
essential issue in this case is how the Appeal Division is to deal with a
decision of the Immigration Division once a finding has been made that a
principle of natural justice had not been observed.
ANALYSIS
[12]
Section
67 of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.
27 provides:
67. (1) To allow an appeal, the Immigration Appeal Division
must be satisfied that, at the time that the appeal is disposed of,
(a) the decision
appealed is wrong in law or fact or mixed law and fact;
(b) a principle
of natural justice has not been observed; or
(c) other than
in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient humanitarian
and compassionate considerations warrant special relief in light of all the
circumstances of the case.
Effect
(2) If the
Immigration Appeal Division allows the appeal, it shall set aside the original
decision and substitute a determination that, in its opinion, should have been
made, including the making of a removal order, or refer the matter to the
appropriate decision-maker for reconsideration.
[13]
In
the present circumstances we are dealing with section 67(1)(b) which provides
that, to allow an appeal, the Appeal Division must find that a principle of
natural justice has not been observed. In the present case this is precisely
what the Appeal Division found.
[14]
Once
a finding has been made that a principle of natural justice has not been
observed, section 67(2) provides that the Appeal Division can, if it allows the
appeal, do one of two things, it can make the decision that it believes should
have been made or it can refer the matter back for redetermination. In the
present case the Appeal Division did something puzzling. It appears first to
have made its own decision just on the evidence before it and, in so doing,
arrived at the same result that the Immigration Division did. This is what the
Appeal Division wrote at paragraph 47 of its reasons:
[47] The panel has come to this
conclusion based solely on the evidence of the appellant and has not relied
whatsoever on the tainted documents that were in front of the Immigration
Division Member at the Immigration Division hearing.
[15]
However
the Panel did not stop there, it seems to speculate that even if it did return
the matter to the Immigration Division the member would reach the same result.
While this may be possible it is by no means certain. Then the Panel says that
if that decision were returned to the Appeal Division it again speculates as to
an inevitable result. This form of prejudging what a decision maker or makers
may do does not form a sound basis for refusing to return a matter. At
paragraph 48 of its Reasons the Panel wrote:
[48] The panel is convinced that if an
Immigration Division Member heard the same evidence the panel has heard during
this appeal, the Immigration Division Member would come to the same conclusion
that the panel has reached at this appeal. This would then lead to a further
appeal in front of the Immigration and Refugee Board, with inevitably the same
result.
[16]
In
the final paragraphs of the Reasons, 49 and 50, the Panel found that “despite
the breach of natural justice and procedural fairness” something that it called
the “principle enunciated in Mobil Oil” applied and concluded that the
case was “hopeless” and lack of success “inevitable”, hence the appeal was
dismissed.
[49] Given the plausibility concerns of
the panel, it finds that despite the breach of natural justice and the breach
of procedural fairness that took place at the Immigration Division hearing, the
principle enunciated in Mobil Oil applies. The appellant’s case is hopeless and
her lack of success is inevitable.
[50] The appeal is dismissed.
[17]
The
“principle enunciated in Mobil Oil” referred to by the Panel is probably
that set out in paragraph 28 of the Reasons:
[28] She then states that the exception
arises from Mobil Oil, where the Supreme Court of Canada explained that a breach of
procedural fairness does not require a new hearing in “special circumstances”
where the claim in question is otherwise “hopeless” or the outcome reached was
“inevitable”.
[18]
Counsel
for both parties before me agreed that Mobil Oil does not stand for such
a proposition. Mobil Oil dealt with a unique set of circumstances where
there was a finding of breach of procedural fairness which the Supreme Court
found would have required the matter to be sent back for redetermination.
However, since the matter that would have been the subject of redetermination
was not the subject of the remedies sought, it was determined to be impractical
to send it back. Iacobucci J. for the Court wrote:
Mobil Oil's
application was greeted by a letter from the Chairman which stated that the
application could "not be brought before the Board" because it was
not "bona fide". While I agree that the Implementation Act absolutely
cannot support the interpretation advocated by Mobil Oil, it goes too far to
pretend that Mobil Oil did not deserve a full hearing, which could have been
effected in writing, in respect of its novel interpretation. The Chairman's
response was the product of an improper subdelegation which effectively
interrupted Mobil Oil's procedural guarantees. Indeed, before this Court
counsel for the Board admitted that it would have been preferable for Mobil Oil
to have been given a Board hearing. If it would have been preferable, why
should another result be accepted?
In light of these
comments, and in the ordinary case, Mobil Oil would be entitled to a remedy
responsive to the breach of fairness or natural justice which I have described.
However, in light of my disposition on the cross-appeal, the remedies sought by
Mobil Oil in the appeal per se are impractical. While it may seem appropriate
to quash the Chairman's decision on the basis that it was the product of an
improper subdelegation, it would be nonsensical to do so and to compel the
Board to consider now Mobil Oil's 1990 application, since the result of the
cross-appeal is that the Board would be bound in law to reject that application
by the decision of this Court.
The bottom line in
this case is thus exceptional, since ordinarily the apparent futility of a
remedy will not bar its recognition: Cardinal, supra. On occasion, however,
this Court has discussed circumstances in which no relief will be offered in
the face of breached administrative law principles: e.g., Harelkin v.
University of Regina, [1979] 2 S.C.R. 561.
As I described in the context of the issue in the cross-appeal, the
circumstances of this case involve a particular kind of legal question, viz.,
one which has an inevitable answer.
In Administrative Law
(6th ed. 1988), at p. 535, Professor Wade discusses the notion that fair procedure
should come first, and that the demerits of bad cases should not ordinarily
lead courts to ignore breaches of natural justice or fairness. But then he also
states:
A distinction might perhaps be made
according to the nature of the decision. In the case of a tribunal which must
decide according to law, it may be justifiable to disregard a breach of natural
justice where the demerits of the claim are such that it would in any case be
hopeless.
In this appeal, the distinction suggested by Professor Wade
is apt.
[19]
The
point being made by the Supreme Court is that where a breach of natural justice
or procedural fairness has been found the Court cannot refuse to send it back
because it supposes that the case would be found to be futile. A rare exception
exists where the remedy sought would not be relevant in the context of the
matter presently before the Court.
[20]
Here
the remedy being sought by the Applicant is precisely the remedy affected by
the lack of natural justice and procedural fairness. The Panel should not
presume what the result would be nor should it prejudge the case as hopeless.
[21]
In
the present circumstances had the Panel stopped at paragraph 47 of its Reasons
there would have been little for this Court to say. However since the Panel
went on at paragraphs 48 to 50 this Court cannot treat this as mere surplusage.
It must consider that the Panel was making a meaningful determination in this
regard. That being the case, it is best to return the matter for
redetermination. Since the Applicant only asked for redetermination by the
Appeal Division that is what I will do however I recommend that the Appeal
Division, it turn, return the matter to the Immigration Division.
[22]
While
Counsel have suggested possible certified questions, the matter is sufficiently
fact specific that I will not certify a question.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
Application is allowed.
2.
The
matter is returned to the Immigration Appeal Division with a recommendation
that it return the matter to the Immigration Division for a hearing de novo;
3.
There
is no question for certification;
4.
No
Order as to costs.
“Roger T. Hughes”
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