Date: 20110317
Docket: IMM-4755-10
Citation: 2011
FC 324
Ottawa, Ontario,
March 17, 2011
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
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BASTI SOFI SAMAD
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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]
At the
outset, on consent of the parties, the style of cause is amended by changing
the Applicant’s name to read “Basti Sofi Samad”.
[2]
This is an application for judicial review of a
decision of the Immigration and Refugee Board, Immigration Division (the Board) dated June 26, 2010, concluding that the
Applicant, Mr. Sofi Samad, was inadmissible to Canada
under paragraph 34(1)(f) of the Immigration and Refugee Protection Act (the
IRPA). Consequently, the Board issued a deportation order against the
Applicant, pursuant to subsection 45(d) of the Act and paragraph 229(1)(a) of
the Immigration and Refugee Protection Regulations (the Regulations).
Factual
Background
[3]
The Applicant, Mr.
Sofi Samad, is an Iraqi citizen. He came to Canada
on April 1, 2003, and made his refugee claim.
[4]
The claim was
suspended in 2003 when the
Ministers issued a report under subsection 44(1) of the IRPA alleging that the
Applicant was “inadmissible on security grounds pursuant to sections 34(1)(f)
by (b) and (c) for being a member of an organization that there are reasonable
grounds to believe engages, has engaged or will engage in instigating the
subversion by force of any government; and engaging in terrorism”, and referred
the matter to the Board for an admissibility hearing.
[5]
Before the matter was
heard, the Applicant applied for a Ministerial exception to inadmissibility under
subsection 34(2) of the IRPA and requested a postponement of the admissibility
hearing until the Minister rendered a decision on that application. The Hearing
Officer supported the request for postponement.
[6]
On February 15, 2010,
almost seven years after the filing of the Applicant’s request for a
Ministerial exception, the Director of the Immigration Division issued “Reasons
and Decision” denying further adjournment or postponement of the admissibility
hearing pending the determination of the application for Ministerial relief.
[7]
The Applicant did not
seek judicial review of the February 15, 2010 decision of the Immigration
Division Director.
[8]
The Immigration
Division then proceeded with the admissibility hearing on June 3, 2010.
The
Board’s Decision
[9]
The Board found the
Applicant to be inadmissible to Canada under paragraph 34(1)(f) of the IRPA,
and issued a deportation order against the Applicant, pursuant to subsection
45(d) of the IRPA and paragraph 229(1)(a) of the Regulations. It found that the
Applicant had admitted to being a member of an organization that there are
reasonable grounds to believe has engaged in subversion by force of a
government.
[10]
The Board refused the
Applicant’s request to postpone the issuance of the deportation order finding
that there has already been substantial delay in the admissibility hearing and
that further delay in expectation of the Minister’s decision could be
indefinite. It found that once a removal order is made it had no discretion to
consider the fairness or proportionality of the consequences that would result.
It found that, “…the question of when and where the person concerned will be
removed is entirely a matter for the Minister.” The Board also noted the
Applicant had a number of avenues he may pursue prior to the enforcement of the
deportation order.
Issues
[11]
The Applicant does
not challenge the Board’s inadmissibility finding. The issues raised relate
only to the Board’s issuance of the Deportation Order. As a result, the
following three issues are raised in this application:
a.
Was there a
legitimate expectation for postponing the issuance of the Deportation Order?
b.
Were the Board’s reasons
for refusing to defer the issuance of the Deportation Order adequate?
c.
Was the Board’s decision
not to postpone the issuance of the Deportation Order reasonable?
[12]
I will deal with each
of the above issues in turn.
Legitimate
Expectation
[13]
The Applicant argues
that he had a legitimate expectation that he would receive a decision in application
for Ministerial Relief before proceeding with his admissibility hearing. The
Applicant relied on the conduct of the Minister’s representative in agreeing to
the postponement of the admissibility over the years to feed that expectation.
It is the Director of the Immigration Division that decided on February 15,
2010 not to further postpone the hearing. As stated earlier in these reasons,
the Applicant chose not to judicially challenge that decision.
[14]
It is well
established that the doctrine of legitimate expectation cannot serve to create
substantive rights. The doctrine relates to procedural measures and for the doctrine
to apply, the Applicant must demonstrate, “the existence of a clear,
unambiguous and unqualified past practice on the part of the administrative
decision-maker in question”. See: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R.
817; and Canada (Minister of Employment and Immigration) v. Lidder,
[1992] F.C.J. No. 212 (C.A.).
[15]
The circumstances
here do not establish such a past practice by the Board relating to deferring
the issuance of deportation orders at the conclusion of admissibility hearings.
Section 45 of the IRPA requires that the Board “…make the applicable removal
order against a foreign national if it is satisfied that the foreign national
is inadmissible”. Section 229 of the Regulations provides that such a removal
order to be a deportation order. In the circumstances and given the mandatory
language in the IRPA, there is no factual basis to support the Applicant’s
argument of legitimate expectation. As a result, no legitimate expectation as
alleged by the Applicant arises in the circumstances.
Adequacy
of Reasons
[16]
The Applicant
contends that the Board had the discretion to postpone the issuance of the
Deportation Order and failed to give adequate reasons for refusing to do so. He
argues that the reasons are perverse since they fail to explain how the
consequences of the Deportation Order could be compensated by other avenues and
failed to address the argument of legitimate expectation.
[17]
I reproduce below the
reasons of the Board relating to its decision to decline to adjourn without
issuing the Deportation Order:
[17] Mr. Sofi Samad argued that if I
should find him inadmissible I should adjourn the matter without issuing a
deportation order until the Minister provides a decision on Mr. Sofi Samad’s
application under subjection 34(2) of the Act. That approach was apparently
taken by this Division in a different case, in which an admissibility hearing
was adjourned, after the Member’s finding of inadmissibility but before an
order was issued, to allow the subject of that proceeding to apply to the
Minister for an exemption under subsection 34(2). Mr. Sofi Samad argued that,
if he is determined to be ineligible now to pursue his refugee claim, the
issuance of a deportation order could lead to his removal prior to the Minister’s
decision on the subsection 34(2) application, despite the existence of a
temporary suspension of removals to Iraq, and despite the Pre-Removal Risk
Assessment process. Mr. Sofi Samad’s potential removal under such circumstances
was described as “a pretty draconian result.”
[18] I have insufficient information
about the specific circumstances of the Soe case to satisfy me that it
would be appropriate to adjourn this matter rather than issuing the appropriate
order. I cannot assume that simply because such an approach was taken once in
the past that it is appropriate to imitate it now. Unlike the subject of that
proceeding, Mr. Sofi Samad submitted his application for a subsection 34(2)
exception years ago, prior to the admissibility hearing, and is still awaiting
a decision; this admissibility hearing was already adjourned for years, and
further delay in expectation of the Minister’s decision could be indefinite.
[19] With respect to the possible
implications of the deportation order for Mr. Sofi Samad, the Federal Court has
stated that “When the panel has made a removal order, the question of when and
where the person concerned will be removed is entirely a matter for the
Minister….At this stage, therefore, it cannot be assumed that the deportation
order will be carried out by the Minister.” Mr. Sofi Samad has a number of
avenues he may pursue prior to the enforcement of the deportation order. In any
case, the Federal Court has stated elsewhere that:
the Immigration Division’s admissibility
hearing is not the place…to consider the fairness or proportionality of the
consequences that flow from a resulting deportation order. Those are
consequences that flow inevitably by operation of law and they impart no
mitigatory discretion upon the Immigration Division.
Accordingly, I decline to adjourn this
matter without issuing the deportation order.
[20] I am required, pursuant to
paragraphs 45(d) of the Act and 229(1)(a) of the Immigration and Refugee
Protection Regulations, to issue a deportation order against Mr. Sofi
Samad.
[18]
I am satisfied that
the Board’s reasons are adequate in that they fulfill the fundamental
criteria for reasons as articulated by the Federal Court of Appeal in Vancouver
International Airport Authority et al v. PSAC, 2010 FCA 158, para. 16. The Board
explained why it decided as it did. Based on the reasons, the Applicant could
decide whether he would exercise his right to have the decision reviewed by a
supervising court. Indeed, the within judicial review is based entirely on the Board’s
refusal to adjourn the proceeding without issuance of the Deportation Order.
The reasons were sufficient for this Court to meaningfully assess whether the
decision met the minimum standards of legality. Finally, the decision meets the
standard of “justification, transparency and intelligibility” as set out in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
Was
the Decision Reasonable?
[19]
The Applicant argues
that the Board’s discretion was sufficiently broad to permit deferring a decision
and that it failed to consider the prior agreements of hearing officers who
agreed to adjourn the admissibility hearing over seven years. The Applicant
further contends that the Board failed to consider the purpose and effect of an
exemption granted under the Ministerial relief provision of the IRPA thereby
rendering the decision unreasonable.
[20]
I reject the
Applicant’s argument. There is nothing in the IRPA which would permit the Board
to consider the consequences of issuing a removal order pursuant to paragraph
45(2)(d) as a factor relevant to the determination of whether a hearing
before it should be adjourned or the resulting deportation order postponed to a
future date. I agree with the Respondent, the possible implications and
consequences of the Deportation Order are matters for the Minister. The Board’s
admissibility hearing is not the place to consider the fairness or
proportionality of such consequences. The Board was correct in so finding. In
the circumstances, its decision not to defer the issuance of the Deportation
Order was reasonable.
Conclusion
[21]
Other remedies may
well be available to the Applicant relating to the timeliness of a decision on
his application for a Ministerial exception, which is now approaching seven
years. However, for the reasons set out above, on the issues raised in the
within application, the Board committed no reviewable error. Consequently, the
application for judicial review of the Board’s decision will be dismissed.
Certified
Question
[22]
The
parties have had the opportunity to raise a serious question of general
importance as contemplated by subsection 74(d) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I am
satisfied that no serious question of general importance arises on this record.
I do not propose to certify a question.
JUDGMENT
[23]
THIS
COURT ORDERS that:
1. The style of cause is amended
by changing the Applicant’s name to read “Basti Sofi Samad”.
2. The application for judicial review
of the June 26, 2010 decision of the Immigration and Refugee Board, Immigration
Division is dismissed.
3. No question of general importance is
certified.
“Edmond P. Blanchard”
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