Date : 20110125
Dossier : IMM-628-10
Citation : 2011 FC 84
Ottawa, Ontario, January 25, 2011
PRESENT: The Honourable Mr. Justice de Montigny
ENTRE :
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DONOVAN ANTHONY JONES
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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
Application is brought pursuant to s. 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (“IRPA”) and s. 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7. It is an application for judicial review
of a decision by the Immigration Appeal Division (“IAD”) of the Immigration and
Refugee Board, dated January 25, 2010, wherein the IAD dismissed the
Applicant’s motion to reopen his appeal, which had been declared abandoned on
August 14, 2009.
I. Facts
[2]
The
Applicant emigrated from Jamaica as a teenager with his mother
and siblings in 1988. Pursuant to some traumatic experiences, including
witnessing the shooting of his own brother and being threatened at gunpoint, he
became involved in criminal activity. His criminal record spans a 10-year
period from October 1992 to October 2002. He has been convicted of several
serious offences including robbery; in February 1993 he was also convicted of the
dangerous operation of a motor vehicle and carrying a concealed weapon. In
addition, he has a number of non-compliance offences including failing to
attend court, failing to comply with a recognizance, and failing to appear.
His last criminal offence was in 2002, when he was fined $300 for possessing
marihuana.
[3]
The
Applicant was ordered deported by the Immigration Division on October 28, 2004
as a result of his conviction in 1997 for trafficking in a narcotic, for which
he was sentenced to eight months in jail. He appealed the deportation order to
the IAD and on April 28, 2006, he obtained a temporary stay of removal. Under
this order, he was required to report changes in address to both the Canadian
Border Services Agency (“CBSA”) and the IAD. The stay order also specified
that his appeal would be reviewed on or about March 22, 2009.
[4]
Subsequently,
the Applicant moved house without informing the IAD of his new address,
although he did report the change to CBSA. He claims that he misunderstood his
obligation and thought that reporting to the CBSA only would be sufficient,
whereas in fact he was also required to make a separate report to the IAD. As
such, notification of his June 25, 2009 appeal review, sent by the IAD on March
10, 2009, did not reach him because it was sent to his former address, the most
recent one the IAD had on file. He therefore did not attend his appeal review
hearing.
[5]
By Notice
to Appear dated July 8, 2009, the IAD thereafter advised the Applicant that a
“no show” conference would take place on August 14, 2009. He did not receive
this notification either because it was also sent to his old address. As a
result, he did not appear at the conference and that day his appeal was
declared abandoned.
[6]
On
December 9, 2009, after having been contacted by the CBSA about his removal,
the Applicant contacted the IAD and sought to reopen his appeal. He had
provided new address information to the IAD on November 24, 2009, after having
been called in to the Greater Toronto Enforcement Centre for possible removal
from Canada. On January 25, 2010, the
IAD dismissed the Applicant’s motion to re-open his appeal.
[7]
The
Applicant is the father of eight children, and supports his unwell, depressed
wife and their children through his job; the family is not currently on social
assistance. The Applicant claims that if he were to be removed from Canada, his family would likely
disintegrate and would need social assistance.
[8]
On
February 15, 2010, my colleague Justice James J. Russell granted the Applicant
a stay of removal until such time as this application for judicial review could
be dealt with.
II. The impugned decision
[9]
The IAD
first set out the procedural and factual background of the Applicant’s case,
before dismissing the Applicant’s motion. The panel noted that under s. 71 of
IRPA, it could only reopen an appeal if it concluded that the IAD had failed to
observe a principle of natural justice, relying on Nazifpour v Canada
(M.C.I.), 2007 FCA 35 for that proposition. The panel concluded that there
was no such failure in this case. It found that the Applicant should have been
aware of the requirement that he keep the IAD informed of his current address,
as this was indicated both in the standard IAD documentation issued to all
appellants, and by the specific conditions listed in the 2006 stay order. It
found that all notices had been properly sent by the IAD, and that the
Applicant had failed to take the second opportunity he was given by failing to
appear at the “no show” conference. Since there was no evidence of any denial
of natural justice or breach of procedural fairness on behalf of the IAD, and
since the panel had no jurisdiction to examine any equitable relief in such an
application, the IAD denied the application to reopen the appeal.
III. Issues
[10]
This
application for judicial review raises the following three questions:
a)
What is
the applicable standard of review?
b)
Did the
IAD err in its interpretation of s. 71 of the IRPA by limiting the inquiry to
whether the IAD had failed to observe a principle of natural justice?
c)
Did the
IAD err in fact in determining that there was no breach of natural justice?
IV. Analysis
A. The Standard of Review
[11]
The
Applicant maintains that because the issue is the interpretation of s. 71 of
IRPA, which is a question of law, the applicable standard of review is
correctness. The Respondent disagrees, stating that the case is not concerned
with a determination of a legal test, since the test is set out unambiguously
in s. 71, but rather whether the IAD erred in a reviewable manner in concluding
that no breach of natural justice occurred when it declared the appeal
abandoned. Accordingly, in his view, the application raises issues of mixed
fact and law, and the standard of reasonableness.
[12]
It seems
to me that the Applicant raises both a legal and a factual question in his
Application. Indeed, he calls into question the proper interpretation to be
given to s. 71 of IRPA, which is clearly a legal issue reviewable on the
correctness standard. When it comes to evaluating whether the tribunal erred
in determining that there was no breach of natural justice, however, the issue
is one of mixed fact and law and it is reviewable on the reasonableness
standard.
B. Did the
IAD err in its Interpretation of s. 71 of IRPA?
[13]
Counsel for
the Applicant contends that the IAD erred in law by interpreting its own
jurisdiction under s. 71 of IRPA as being limited to situations where the IAD
itself had committed a breach of natural justice. The Applicant also argued
that instead of taking such a narrow approach to the section, the IAD should
have focused on broader questions, such as whether the case was ever heard on
the merits, whether the Applicant had had his day in court, and whether he had
expressly stated his intention to abandon the case.
[14]
Unfortunately
for the Applicant, such a reading of s. 71 has been consistently rejected by
this Court and by the Federal Court of Appeal. For ease of reference, it is
worth setting out this provision:
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Right
of Appeal
Reopening
appeal
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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Droit
d’appel
Réouverture
de l’appel
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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[15]
It is true
that under the former legislation, the IAD had a continuing equitable jurisdiction
to accept and address additional evidence. But this Court has consistently
held that Parliament, in enacting s. 71 of IRPA, has limited the jurisdiction
of the IAD to reopen an appeal only to those cases involving breaches of the
rules of natural justice: see, for example, Ye v Canada (M.C.I.), 2004
FC 964; Griffiths v Canada (M.C.I.), 2005 FC 971; Baldeo v Canada (M.C.I.),
2006 FC 79.
[16]
Far from
overruling that case law, the Federal Court of Appeal explicitly upheld it in Nazifpour,
above. After having carefully considered the particular wording of s.
71, as well as its legislative history and the overall objectives of IRPA – one
of which was to give more importance to national security and the expeditious
removal of persons ordered deported on the ground of serious criminality – the
Court of Appeal found that an interpretation of that section which removes the
right to reopen its decisions for reasons other than breach of a principle of
natural justice would be consistent with that statutory aim. The Court of
Appeal then concluded, in no uncertain terms:
78. Despite the absence of evidence establishing
that the IAD’s jurisdiction to reopen on the basis of new evidence had in fact
been abused by appellants, it is, in my opinion, likely that Parliament enacted
section 71 in order to avoid another round
of proceedings before the IAD by unsuccessful appellants on the basis of new
evidence.
79. While the objectives of IRPA
are not limited to the expeditious removal of criminals, deportees who have new
evidence that they would be at serious risk if removed may bring it to the
attention of a PRRA officer under section 112. New evidence relating, for
example, to the appellant’s rehabilitation or family circumstances (including
the best interests of affected children) may form the basis of an application
under section 25 of IRPA to remain in Canada on humanitarian and
compassionate grounds.
80. It is true that the drafter could
easily have avoided all ambiguity by including the word “only” in the text of section
71. However, in my opinion, the reading which best effectuates the general
objects of IRPA, and attributes a plausible function to section 71
itself, is that the section implicitly removes the IAD’s jurisdiction to reopen
appeals on the ground of new evidence, a jurisdiction which would otherwise be
judicially inferred from the nature of the statutory discretion to relieve
against deportation. Section 12 of the Interpretation Act is therefore
not helpful to the appellant.
[17]
There is
nothing ambiguous in those paragraphs. And if any doubts remained, they would
be dispelled by the concluding paragraph of the reasons provided by the Court
in that case:
83. For these reasons, I would dismiss
the appeal and answer in the affirmative the following slightly modified
version of the certified question:
Does section 71 of IRPA
extinguish the continuing “equitable jurisdiction” of the IAD to reopen an
appeal against a deportation order, except where the IAD has failed to observe
a principle of natural justice?
[18]
This
interpretation of the Federal Court of Appeal decision has indeed been
systematically followed by this Court: see, for example, Canada (M.C.I.) v
Kang, 2009 FC 941; Wilks v Canada (M.C.I.), 2009 FC 306. I am therefore unable to
accept the interpretation put forward by the Applicant, despite the interesting
arguments submitted by his counsel, as it would amount to reversing what
appears to be the unanimous jurisprudence of this Court and of the Court of
Appeal.
C. Did
the IAD err in Determining that there was no Breach of Natural Justice?
[19]
The
Applicant argues that if a breach of fundamental justice was indeed required to
reopen the appeal, then that requirement was met and the IAD erred in fact by
determining that there was no such breach. It is alleged that the IAD was at
fault in not making further inquiries of other government departments in order to
obtain an address for the Applicant when it was faced with returned mail from
the Applicant’s last known address.
[20]
I do not
find this argument compelling. The Applicant himself admits that the IAD was
not required by the case law to do anything beyond sending the hearing
notifications to the last address provided. This point is well taken, in light
of the decision reached by Mr. Justice Simon Noël, among others, in Dubrézil
v Canada (M.C.I.), 2006 FC 142, where he stated:
[12] If the appellant’s
reasoning were followed, it would imply that each time a person is absent,
lacks diligence or acts in such a way that clearly suggests that the appeal has
been abandoned, the IAD would be bound to investigate to find those persons, to
remind them of their obligations and to summon them to a new hearing before
deciding that the proceedings are abandoned. I cannot accept such an
interpretation, especially because in this case the appellant did not advise
the IAD of the change in his contact information, so that in any event the IAD
would not have been able to contact him to summon him to a new hearing if it
had had such an obligation. The Iad was not bound to act as the appellant’s
legal counsel, or to remind him of the seriousness of the proceedings in which
he was involved, or to ensure that he properly understood that he had to show
up at his scheduling conference or that he was bound to advise the IAD of his
change of address. The appellant did have the opportunity to argue his grounds
at a full hearing before the IAD, but the IAD did not find that these grounds
were sufficient to justify re-opening the appeal.
[21]
It may
well be that in some cases, the IAD goes out of its way to make an inquiry,
either by contacting the CBSA or by using the telephone numbers provided in the
Notices of Appeal or subsequent notices change of contact information to try to
make direct contact with an appellant. But the IAD cannot be faulted for not
having done so here, particularly when there is nothing in the file to indicate
that a change of address has been made to CBSA. The IAD is rightly entitled to
declare an appeal abandoned in the case of returned mail, and is not required
to investigate with a view to determining if a change of address has been filed
with CBSA or other government departments.
[22]
Furthermore,
it appears that this argument advanced before the Court was not made to the IAD
on the motion to reopen. In his reopening motion materials the Applicant set
out a variety of facts which he felt warranted him being granted a reopening,
but he admitted that he himself was fault in not informing the IAD of his
change of address. He now changes tack and tries to blame the IAD for his
predicament. In raising this new argument on the requirements of natural
justice in the circumstances of his case, the Applicant is supplementing the
record that was before the IAD and is attempting to convert the underlying
challenge (to the refusal to reopen the appeal) into a challenge to the
original abandonment decision. This is not permitted in the context of this
application for judicial review of the decision not to reopen his appeal. It
is well established that the reasonableness of a tribunal’s decision must be
assessed on the basis of the arguments that were put to that tribunal. The
member could not have erred in failing to find that natural justice was
breached for the reasons given by the Applicant when the argument which allegedly
supports such a finding was not put to the IAD.
[23]
In any
event, the argument of the Applicant does not hold water. First of all, it is
not entirely clear whether the IAD did in fact receive the mail returned as
undeliverable, and there is nothing in the record to that effect. Second, I do
not see how the argument can be made that the Minister, who knew the correct
address, should have shared this address with the tribunal, either of its own
initiative or at the prompting of the IAD. As for the first possibility, I
fail to understand how the tribunal’s decision could be overturned on judicial
review based on a failure to act by the opposing party, since such alleged
misconduct by a party in no way represents a reviewable unreasonable decision
on the part of the tribunal itself. Alternatively, requiring the tribunal to
obtain the contact information from the Minister would seem to undermine the
conditions and rules set out in the stay of removal order made by the IAD in
2006, one of which was that the Applicant keep both the Minister and the
tribunal informed of his address. The wording of that condition is to be
contrasted to the wording of other conditions on the same stay, wherein only the
Department of Citizenship and Immigration, rather than the Department and
the IAD, is mentioned (see, for example, conditions 2, 9 and 10).
[24]
Moreover,
conditions 5 and 6 make it abundantly clear that the Department and the IAD are
not to be confused or equated. Condition 5 requests the Applicant to report in
writing to the Department if charged with a criminal offence, while Condition 6
requests that he reports to the Department and the IAD if convicted of a
criminal offence. It may be that the direction to inform individually both the
Department and the IAD of any change of address could have been made even
clearer, but I do not think it can be considered ambiguous as it stands, when
read in the context of the other conditions set out in the stay of removal
order.
[25]
The only
authority cited by the Applicant in support of his argument (Sabet v Canada
(M.C.I.), [1998] FCJ No 926) is far from convincing. In that case, the
decision of the Board was set aside because it was found that the Board should
have been more attentive to the Applicant’s failure to appear, which resulted
from the fact that he had been kidnapped. Needless to say, there is no
possible analogy between that case and the Applicant’s failure to make the
required report of his change of address.
[26]
For all of
the foregoing reasons, I do not believe that the IAD’s finding that there had
been no breach of natural justice was unreasonable.
[27]
Having
said this, I am also of the view that this would be an appropriate case for the
Minister to refrain from deporting the Applicant until an application under
section 25 of IRPA to remain in Canada on humanitarian and compassionate
grounds can be dealt with. The Applicant has clearly met all the other
conditions of his conditional stay of removal, he has not been charged with any
criminal offence since 2002, he his the father of eight children and his
removal from Canada would most likely have a most detrimental impact both on
his wife and on his children. While the Applicant has clearly been negligent
in not reporting his change of address to the IAD, and while there is nothing
in his file that could justify this Court overturning the IAD’s decision not to
reopen his appeal, it appears that he would be a strong candidate for an
H&C decision.
[28]
Counsel
for the Applicant submitted two questions for certification purposes:
1. Does section 71 of IRPA contemplate in
a broad sense a violation of natural justice where there has been no hearing on
the merits of the case? In other words, does section 71 of the IRPA
necessitate a violation by the IAD in a hearing itself or is the concern rooted
in the question as to whether the Applicant has been denied a hearing, on
unreasonable grounds?
2. Being aware that there is confusion by
Appellants about the administrative significance of ensuring that a change of
address be sent to both the IAD and CBSA/CIC and that most Appellants may very
well report that change of address to CBSA/CIC, is the IAD failure to inquire
of CBSA/CIC about whether a change of address has been submitted constitute a
failure of natural justice? Further, given its knowledge that Appellants do
get confused, is its failure to make it clearer that the IAD and CBSA are
separate and apart for purposes of giving a change of address, constitute a
breach of natural justice?
[29]
In my
view, neither of these two questions meets the requirements for certification
pursuant to s. 74(d) of the Act – that is, a serious question of general
importance that is determinative of the appeal. As I have already indicated in
these reasons, both of these questions have been dealt with and decided time
and again by the case law of this Court and of the Federal Court of Appeal.
Moreover, the second question has not been raised before the IAD and cannot be
appropriately addressed by the Court of Appeal.
JUDGMENT
THIS COURT’S JUDGMENT IS THAT this application for judicial
review is dismissed.
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