Date: 20070227
Docket: IMM-1984-06
Citation: 2007 FC 212
Ottawa, Ontario, February 27, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicants
and
GREGORY
GEORGE ISHMAEL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
Section
71 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), requires that, for the Panel to have the jurisdiction to re-open an
appeal, there must be a failure to observe a principle of natural justice for
which the Immigration Appeal Division (IAD), itself, is responsible. The breach
must be the fault of the IAD, not due to the wilful choice (or deemed wilful
choice) of the person concerned.
[2]
If
any breach of natural justice occurred due to the Respondent’s wilful choice
(or deemed wilful choice) to miss the hearing, then, to allow the request to
re-open, on the basis of that wilful choice (or deemed wilful choice) of the
Respondent to miss the hearing, would be to disregard the purpose for which the
right to re-open exists.
INTRODUCTION
[3]
The
Applicant asserts that its application for judicial review of the IAD decision
to re-open the Respondent’s appeal must be allowed, given the errors of law
committed by the Panel:
·
assessing
whether the principles of natural justice had been infringed;
·
understanding
its jurisdiction when assessing a motion to re-open under s. 71 of the IRPA;
·
in
drawing a finding that has absurd consequences; and
·
applying
the jurisprudence relevant to its determination.
BACKGROUND
[4]
The
Respondent, Mr. Gregory George Ishmael, entered Canada as a
permanent resident on January 23, 1991. He is married and has eight children in
Canada, all of whom
are Canadian citizens. He resides with his wife and four children in
Scarborough.
[5]
Mr.
Ishmael, was found inadmissible under three provisions of the former Immigration
Act, R.S.C. 1985, c. I-2, and a deportation order was issued against him.
He appealed the deportation order to the IAD, where he sought a stay of the
order for four years based on all the circumstances of his case. In June 2001,
the IAD granted Mr. Ishmael a four year stay of the removal order, on some
eight terms and conditions. (Caracciolo Affidavit, Exhibit “A”, pp. 1-2 and
14-16; Applicant’s Application Record, pp. 15-16 and 28-30).
[6]
On
May 19, 2005, the IAD advised the parties that it intended to conduct, a four
year review of Mr. Ishmael’s stay, in chambers. On June 3, 2005, the Applicant
invited Mr. Ishmael to submit information concerning his adherence to the terms
and conditions imposed on his stay. This invitation was sent to Mr. Ishmael’s
home at 59
McKnight Drive, Scarborough, Ontario. (Caracciolo Affidavit,
Exhibits “B” and “C”; Applicant’s Application Record, pp. 31-32).
[7]
On
June 9, 2005, the Applicant requested that the IAD conduct an oral review of
Mr. Ishmael’s stay of removal. This request was copied to Mr. Ishmael at
his home at 59
McKnight Drive, Scarborough, Ontario. (Caracciolo Affidavit,
Exhibit “D”; Applicant’s Application Record, pp. 33-44).
[8]
On
June 14, 2005, the Applicant wrote the IAD advising of its position on how Mr.
Ishmael failed to meet the terms and conditions of his stay. The evidence
adduced by the Applicant arose out of a meeting with Mr. Ishmael. The meeting
stemmed from the June 3, 2005, Call-in-Notice that was sent to Mr. Ishmael’s
home at 59
McKnight Drive, Scarborough, Ontario. The Applicant’s June 3,
2005, letter did reach Mr. Ishmael when it was sent to 59 McKnight Drive, Scarborough, Ontario. (Caracciolo
Affidavit, Exhibit “E”; Applicant’s Application Record, pp. 45-51).
[9]
Mr.
Ishmael was advised by telephone that the hearing on his appeal would occur on
November 30, 2005. He was also sent a written Notice to Appear on June 27, 2005,
advising him of the November 30, 2005, hearing, to his home address – 59 McKnight
Drive, Scarborough, Ontario. The hearing
into Mr. Ishmael’s stay was held on November 30, 2005; however, Mr. Ishmael did
not attend. The IAD declared Mr. Ishmael’s appeal abandoned due to this failure
to attend the hearing. Caracciolo Affidavit, Exhibits “F” and “G”; Applicant’s
Application Record, pp. 52-55).
[10]
On
February 3, 2006, Mr. Ishmael filed a motion to re-open his appeal. The motion
was based on the understanding that the IAD sent the Notice to Appear for the
November 30, 2005, hearing to the wrong address (59 McKnight Drive, Scarborough, Ontario) as opposed
to Mr. Ishmael’s correct address (59 McKnight Drive, Toronto, Ontario). Mr.
Ishmael also acknowledged that he received correspondence in the past from the Immigration
and Refugee Board (IRB) and the Canadian Border Services Agency (CBSA) that had
been directed to him at the Scarborough address. Mr. Ishmael
never stated that he did not receive the June 27 Notice to Appear. He
submitted, however, that the appeal should be re-opened as the Panel breached
the principles of natural justice by not providing him with adequate notice of
the hearing date. (Caracciolo Affidavit, Exhibit “H”, pp. 4-5, 16-22;
Applicant’s Application Record, pp. 56-77).
[11]
The
Applicant relied on the following evidence to oppose the motion:
·
The
Respondent received a letter sent to him at 59 McKnight Drive, Scarborough,
Ontario;
·
Information
from the Canada Post website indicating that the Respondent’s correct mailing
address was 59
McKnight Drive, Scarborough, Ontario;
·
A
copy of the Respondent’s T4 indicating that he resided at 59 McKnight
Drive,
Scarborough, Ontario;
·
A
copy of a Citizenship and Immigration Canada (CIC) “Reporting Form” that the
Respondent completed on December 2004, wherein he indicated that he resided at
59 McKnight Drive, Scarborough, Ontario; and
·
A
copy of an IRB Statement of Service indicating that the June 27, 2005, Notice
to Appear was sent to the Respondent at his home address of 59 McKnight
Drive,
Scarborough, Ontario.
(Caracciolo
Affidavit, Exhibit “I”; Exhibits “A”, “B”, “C”, “D”, “E” to the Foreman
affidavit; Applicant’s Application Record, pp. 90-92-94-96-99 and 100).
The Applicant argued that Mr. Ishmael’s
appeal could not be re-opened because there was no evidence that he failed to
receive the June 27, 2005, Notice to Appear. The Applicant argued that Mr.
Ishmael did not show that there had been a breach of natural justice that would
justify re-opening the appeal. (Caracciolo Affidavit, Exhibit “I”; Applicant’s Application
Record, pp. 80-85).
[12]
The
IAD allowed the motion to re-open. The Panel determined that it was not
credible that Mr. Ishmael did not receive the June 27, 2006, Notice to
Appear and that Mr. Ishmael was aware that a hearing of his stay would be held
on November 30, 2005, that he was aware of this, as of June 22, 2005, and
as well that Mr. Ishmael likely received the Notice to Appear. The Panel
concluded that the IRB dispensed with its obligation to inform Mr. Ishmael of
the time and place of his hearing and that it was Mr. Ishmael who was
accountable for his failure to attend the hearing; however, the Panel granted
the motion to re-open on the basis that it would not be fair for Mr. Ishmael’s
case to be dismissed without giving him an opportunity to explain why he did
not attend the hearing and why his appeal should not be declared abandoned.
(Reasons for decision, pp. 3-6; Application record, pp. 7-10).
[13]
In
paragraph 3 of his affidavit, Mr. Ishmael asserts that he never received a
Notice to Appear for the November 30, 2005, hearing; however, this assertion
sharply contrasts with what the Panel found – Mr. Ishmael knew in June 2005
that a hearing into his appeal would be held on November 30, 2005; furthermore,
the real question is whether Mr. Ishmael received adequate notice of the
November 30, 2005, hearing. Mr. Ishmael admits that he knew of the November 30,
2005, hearing in June 2005 when he was informed by the Board that a hearing
would take place on November 30, 2005. As such, even if Mr. Ishmael did not
receive a Notice to Appear for the November 30, 2005, hearing – contrary to the
finding of the Panel – this does not signify that he was denied adequate notice
of the hearing to attend it and present his position. (Applicant’s application
record, p. 8, para. 12; Affidavit of Respondent, paras. 3 and 5 (Respondent’s
Application Record, p. 1).
ISSUE
[14]
Did
the Panel err in ordering the appeal re-opened?
STANDARD OF REVIEW
[15]
With
respect to questions of law, the standard of review is that of correctness, the
Court may intervene where it is demonstrated that an error in law occurred. (Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour),
[2003] S.C.R. 539).
ANALYSIS
Did the Panel
err in ordering the appeal re-opened?
[16]
Section
71 of the IRPA only permits the IAD to re-open an appeal where it failed to
observe a principle of natural justice.
|
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.
|
[17]
Mr.
Ishmael based his motion to re-open on his failure to receive the Notice of
Application for the November 30, 2005, hearing. He asserted that the lack of
notice deprived him of the right to be heard. (Caracciolo affidavit, Exhibit
“H”, pp. 15-20; Applicant’s Application Record, pp. 70-75).
[18]
The
requirement of adequate notice is designed to ensure basic natural justice
guarantees – knowledge that a hearing will be held: to ensure an opportunity to
attend the hearing and make submissions.
[19]
The Panel
found that Mr. Ishmael was aware of the November 30 hearing:
[12]
If is true that the applicant never directly says in his statutory declaration
that he was unaware of his November 30, 2005 hearing but rather states that he
did not receive a Notice to Appear for his oral review. But there is a clear
inference made by the applicant, in the panel’s opinion, that in not receiving
his Notice to Appear, he was unaware that he had a hearing on November 30,
2005. But there is evidence that at least in June 2005, he was aware of a
hearing date scheduled for November 30, 2005. Based on the information before
it, the panel is prepared to find that, on a balance of probabilities, the
appellant did know of his hearing in June 2005 and did receive the Notice to
Appear as it was sent to an address that has been effectively used as his home
address.
…
[15] The
issue for the panel to ultimately decide in an application for reopening under
section 71 of IRPA is whether there was a failure to observe a principle
of natural justice. The panel is satisfied the IAD dispensed its initial
responsibility to duly notify the applicant of the time and place of his
hearing before the IAD on November 30, 2005. It did so in writing to an address
that the panel finds to be a reasonable and indeed reliable version of his home
address and it communicated the same information orally to the applicant. The
panel is satisfied that the applicant was aware of the time and place of his
scheduled hearing. The fact that the applicant failed to appear is hardly the
fault of the IAD; it is the applicant who is accountable for failing to appear
on November 30, 2005, as required. The panel is of the opinion that this
failure to appear is likely an oversight of some kind, not a deliberate effort
to avoid appearing before the IAD. (Emphasis of the Court.)
[20]
In
finding that Mr. Ishmael has received notice of the November 30 hearing, the Panel,
in effect, found that Mr. Ishmael was afforded the natural justice guarantee of
adequate notice: knowledge of a hearing to be held concerning his interests and
an opportunity to attend and make submissions in his case.
[21]
The
test for re-opening required the IAD to be satisfied that it breached a
principle of natural justice. In the case at bar, on the allegation of a
natural justice breach advanced by Mr. Ishmael, the implications of the Panel’s
determination is that no natural justice breach could have occurred. It was,
therefore, not open to the Panel to find a breach of natural justice –
vis-à-vis Mr. Ishmael’s opportunity to attend the hearing and state his case
that would have warranted re-opening the appeal.
[22]
The
Panel’s
decision to re-open simply ignores its own assessment of the evidence
and, therefore, falls outside of its jurisdiction to re-open an appeal. (If the
Panel ignored IAD errors in this file, that is another matter, then, there may
have been a breach of a principle of natural justice; it is just that the Panel
cannot have it both ways: re-open the Appeal, if it did not breach natural
justice; and not agree to re-open the appeal, if it did breach natural
justice).
[23]
Mr.
Ishmael asserts that the Panel was correct in re-opening his appeal on the
basis of a breach of natural justice as (according to Beals v. Saldanha,
[2003] 3 S.C.R. 416) natural justice required that he be afforded the right
to a notice of the hearing as well as an adequate opportunity to state his
case; however, there are, at least, three reasons why this argument does not
succeed under the present reasoning of the Panel:
a) Beals
is a conflict of law decision, discussing the breach of natural justice
exemption to the enforcement of foreign judgments. It is doubtful that the
passage quoted by Mr. Ishmael makes any holding about the minimum
standards of procedural fairness owed by the IAD. In this context, it exceeds
the access to the opportunity to make submissions.
b) Even
assuming that Beals did provide guidance as to what natural justice
requires in the administrative law context, Mr. Ishmael was afforded the
same. In the process by which his claim was declared abandoned, he was given
both adequate notice of his hearing as well as adequate opportunity to state
his position – adequate notice, in that, he was told of the hearing date in
June 2005 and the opportunity to state his position on the ultimate decision of
his appeal at the November 30, 2005, hearing. Mr. Ishmael had only to
attend and make submissions. Thus, even under the rule in Beals,
Mr. Ishmael was given that which natural justice required.
c) Mr. Ishmael
proposes that the adequate notice requirement of natural justice only be met
when the person affected actually attends the hearing and makes submissions.
Not only would this be an incorrect expansion of the adequate notice
requirement, it would bring the administrative decision-making process to a
standstill, no decision could be made until the person concerned chose to
attend and argue his case. In addition, it would effectively negate s. 71 of
the IRPA – that a tribunal may have to declare an appeal abandoned when the
person concerned chooses not to attend their hearing.
JURISDICTION TO RE-OPEN BASED ON PURPORTED
NATURAL JUSTICE BREACH
[24]
Section
71 of the IRPA, requires that, for the Panel to have the jurisdiction to
re-open an appeal, there must be a failure to observe a principle of natural
justice for which the IAD itself, is responsible. The breach must be the fault
of the IAD, not of the wilful choice (or deemed wilful choice) of the person
concerned.
[25]
If
any breach of natural justice occurred from Mr. Ishmael’s wilful choice (or
deemed wilful choice) to miss the hearing, then, to allow the request to
re-open on the basis, of that wilful choice (or deemed wilful choice) of Mr.
Ishmael to miss the hearing, would be to disregard the purpose for which the
right to re-open exists.
WRONG UNDERSTANDING OF WHAT IS A BREACH OF NATURAL
JUSTICE
[26]
The
Panel granted the motion to re-open on the following basis:
[16] The
panel is of the opinion that the principle of natural justice should consider
the broader issues of procedural fairness in this case, that is to consider
more than the question of whether the IAD duly served notice to the applicant
of his oral review. Should the applicant, who did appear before the IAD as
required in 2001 for his appeal hearing, who has demonstrated a significant
degree of compliance with the conditions of his stay, who has worked
cooperatively with CBSA, who at the end of his four years stay, is potentially
in a position to have his appeal allowed, who duly pursued an application to
re-opening in a timely fashion, be subject to removal from Canada for having
failed to appear at a scheduled oral review, without any opportunity to explain
why he failed to appear and to show cause why his appeal should not be
abandoned. The panel is of the opinion that it is within the purview of the IAD
to re-open the applicant’s appeal on the basis that, given the particular facts
of this case, not to do so would be a breach of procedural fairness and natural
justice.
[27]
In
making this finding, the Panel erred in understanding its role in assessing if
the principles of natural justice had been infringed. Natural justice is a
general concept that guarantees a process by which a person is afforded minimum
fairness requirements. This entails a specific fairness assessment of that
which is warranted in the circumstances. It is an assessment of what procedural
fairness entitlements – right to notice, right to counsel, right to confront
adverse evidence, etc. – are required in a given context. A procedural fairness
assessment consists of the setting of a fair procedure; while natural justice is
the overall barometer reading to determine whether the person was afforded minimum
fairness requirements. That can be illustrated using the case at bar. Ensuring
that the substantive and procedural rights of Mr. Ishmael were respected
constitutes the procedural fairness guarantee, embodied in the concept of
natural justice.
[28]
The
task for the Panel deciding the motion to re-open was to assess whether the IAD
gave Mr. Ishmael adequate notice of his November 30, 2005, hearing to enable
him to attend the hearing and make submissions in his case.
RATIONALE PRODUCES ABSURDITIES
[29]
The
rationale of the Panel’s decision to re-open the appeal produces the
absurdities of rendering ss. 168(1) of the IRPA useless and would result in the
situation that an appellant could ignore a direction to attend without
consequence until it becomes beneficial for him so to do.
[30]
Subsection
168(1) of the IRPA permits a Division of the IRB to declare a proceeding
abandoned, if it is of the opinion that the person concerned is in default of
the proceeding, including, the grounds that the person failed to appear for a
hearing; however, if the IAD Panel is correct, and an appellant before the Appeal
Division must be given an opportunity to explain why a case should not be
declared abandoned; then, it would not be possible for a Division to declare a
claim, abandoned, on the basis of the failure of the person concerned to attend
the hearing. Not only is the Panel’s interpretation inconsistent with the
intent of Parliament in ss. 168(1) of the Act, it also poses the difficulty,
outlined in Ye v. Canada (Minister of Citizenship and Immigration), 2004 FC 964, [2004]
F.C.J. No. 1185 (QL).
[31]
In Ye,
Justice Michael Kelen explained that the new rule in s. 71, allows a re-opening
on the basis of a breach of natural justice to prevent abuses of the IAD:
[18] …Without limiting the
right of the IAD to reopen an appeal, the IAD immigration process becomes a
merry-go-round. In my view, Parliament has limited the right of the IAD to
reopen an appeal to only cases involving breaches of the rules of natural
justice. For these reasons, this application for judicial review will be
dismissed.
[32]
A
similar “merry-go-round” situation could arise in the case at bar. The
appellant could continually ignore Notices to Appear, but not face any
consequences until attending a hearing to decide whether the appeal should be
declared, abandoned. Such a situation would only further risk the misuse of the
Appeal Division’s process, and put the appellant in the position of directing
the appeal.
[33]
The
points of distinction, argued by Mr. Ishmael in respect of the Ye
decision, are not relevant for the following reasons:
·
The
issue in Ye is relevant to the case at bar, in respect to the scope of
the Appeal Division’s jurisdiction to re-open an appeal under s. 71 of the
IRPA. The factual differences between Ye and this case – as they do not
detract from the applicability of the principles enunciated in Ye –
cannot be used to argue that Ye does not apply.
·
The
Panel’s finding that the person must be allowed to explain why the case should
not be declared abandoned after failure to appear at the hearing would produce
absurdities. Mr. Ishmael’s arguments for distinguishing Ye do not alter
the fact that the Panel’s decision produces absurdities;
·
The
fact that Ye sought judicial review of the decision to dismiss the
original appeal does not bar its application to this case. Mr. Ishmael, having
obtained (in part) the relief that he sought from the Appeal Division – a stay
of his removal – had no need to seek judicial review of a negative decision as
did Ms. Ye.
·
Mr.
Ishmael points to the fact that Ms. Ye enjoyed a full hearing before the Appeal
Division but, then, so did he enjoy the same in 2001 – when his appeal resulted
in the stay of his removal order – and on November 30, 2005, when he had the
opportunity to attend the hearing to make submissions on that point.
·
One
should also consider the ultimate result in Ye. Ye sought a
re-opening based on the purported incompetence of her counsel, which the Appeal
Division did not accept. This finding was implicitly accepted by the Federal
Court which found no reviewable error in the decision, not to re-open. As such,
the Federal Court’s decision in Ye, in clarifying the standard
application in s. 71, and in applying the standard, must be read as a
pronouncement on the test for re-opening in s. 71, not just a specific
case-limited consideration of the provision.
·
Finally,
Ye has been universally followed by the Federal Court as a pronouncement
on how s. 71 of the IRPA should operate. It cannot be a decision of limited
application as Mr. Ishmael suggests. (Griffiths v. Canada (Minister of
Citizenship and Immigration), 2005 FC 971, [2005] F.C.J. No. 1194 (QL); Nazifpour
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1694, [2005]
F.C.J. No. 2097 (QL); Baldeo v. Canada (Minister of Citizenship and Immigration), 2006 FC 79 [2006]
F.C.J. No. 100 (QL)).
ERRONEOUS INTERPRETATION OF THE JURISPRUDENCE
[34]
In
deciding the motion to re-open, the Panel considered the Hung v. Canada (Minister of
Citizenship and Immigration), 2004 FC 966, [2004] F.C.J. No. 1237 (QL) and Dubrézil
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 142, [2006] F.C.J. No. 154 (QL) cases;
however, the Panel erred in interpreting Hung and failed to appreciate
the applicability of Dubrézil.
Erroneous interpretation
of Hung
[35]
The
Panel interpreted Hung, above, as holding that natural justice requires
that the appellant be given the opportunity to address the IAD on the merits of
declaring an appeal abandoned before the appeal is declared abandoned.
[36]
In Hung,
the appellant agreed that his counsel would represent him at the scheduling
conference. On the date of the scheduling conference, counsel was unable to
attend due to a medical ailment. The Appeal Division dismissed the appeal due
to the appellant’s failure to attend the scheduling conference.
[37]
Hung should not govern the
re-opening motion in this case. To begin with, there are important factual
distinctions. The hearing, in Hung, was a scheduling conference, while
the hearing that Mr. Ishmael failed to attend was a hearing on the merits of
the appeal; furthermore, Hung had a valid reason for not
attending the hearing – counsel stated that he would attend for the appellant
but later could not attend due to illness. In contrast, the Panel, in the case
at bar, determined that Mr. Ishmael was aware of the hearing date but failed to
attend. (Reasons, p. 5, para. 15; Application Record, p. 9). The reason for the
failure to attend in Hung – a medical ailment – is unintentional and not
the result of the person concerned’s own conduct. Absence was due to a medical
ailment that culminated in a lack of representation. That gave rise to the
breach of natural justice, and not the failure to attend itself. Thus, given
the different facts, the Panel should not have applied Hung to Mr.
Ishmael’s case.
[38]
The
IAD Panel erred in determining the legal finding to be drawn from Hung.
Justice François Lemieux overturned the decision to dismiss the motion to
re-open, explaining that:
[10] In my view, the panel erred fundamentally in finding that it
had not failed to observe a principle of natural justice when on December 13,
2004, the member declared that the appeal had been abandoned.
…
[12] In my opinion, in declaring the appeal abandoned without
giving the applicant or his counsel the opportunity to explain why they were
absent, the member failed to observe the principles of natural justice, in the
circumstances of this case.
[39]
Justice
Lemieux did not find, as a general principle, that the Appeal Division must
invite an appellant to explain why his case should not be declared abandoned in
every situation where the appellant failed to attend a hearing. In contrast,
Justice Lemieux found that natural justice required that Hung be given
an opportunity because of the unique circumstances of his case: the illness of counsel
denied the person concerned his right to attend the hearing; and, thus, have
someone represent his interests. The Panel could not have interpreted Hung
as requiring Mr. Ishmael be given an automatic opportunity to explain why his
appeal should not be declared abandoned, and consequently, the Panel could not
determine that Mr. Ishmael was denied natural justice by the IAD because he was
not afforded such an opportunity.
[40]
Finally,
the wide interpretation that the Panel, in the case at bar, gave to Hung,
could lead to illogical results. It would ignore the clear intention of Justice
Lemieux to limit his findings on natural justice to the specific and unique
circumstances of the case. The result, that a decision to declare the claim
abandoned, could not be made, in each and every case, until counsel or the person
concerned had the opportunity to explain their absence which would create a
“merry-go-round” situation.
[41]
The
Panel is in error in the manner it determined that i) Hung governed the
situation in the case at bar; and ii) that Hung set out a rule for determining
a motion to re-open in every case.
Impact of Dubrézil
[42]
The
Panel noted that the Dubrézil case involved a fact pattern similar to
the case at bar, but chose not to apply it. In so doing, the Panel breached the
principle of stare decisis.
[43]
Stare
decisis requires
that lower judicial bodies follow the decisions of higher judicial bodies on
cases involving legal issues and sufficiently similar facts. Under the
principle, the IAD Panel is required to follow a Federal Court decision in a
motion to re-open involving similar facts.
[44]
Dubrézil was summoned to appear
at an IAD hearing; however, because he did not advise the Board of a change in
his address, he did not receive the notice of the hearing and consequently did
not attend. His appeal was declared abandoned pursuant to ss. 168(1) of the
IRPA. Dubrézil made a motion to re-open his claim, citing his failure to
receive the notice as grounds for the re-opening. The motion to re-open was
dismissed. On judicial review, the Federal Court dismissed the application,
finding that there could be no basis for-re-opening the appeal on natural
justice grounds as any failure of Dubrézil to receive the notice was not
the fault of the IRB, but of Dubrézil for failing to update his address
with the Board.
[45]
The
determination in Dubrézil does apply to the case at bar. As in Dubrézil,
Mr. Ishmael indicated to the Board that his address was 59 McKnight Drive, Scarborough, Ontario. If the June 27,
2005, Notice to Appear did not reach Mr. Ishmael, it is his fault, and not of the
Board. Thus, the Panel, in the present case, unless the Panel could have
shown a distinguishing feature, should have followed Dubrézil to
find that there is no breach of natural justice in the circumstances of this
case that would warrant re-opening the appeal. The Panel erred in law by not
appreciating that Dubrézil was binding, and by failing to explain why it
did not apply Dubrézil.
[46]
Furthermore,
the Court in Dubrézil determined that Hung did not apply in cases
such as the case at bar:
[7] …In that matter, it should be stressed that the applicant
did not show up at the scheduling conference on his counsel's advice, and not
based on his own lack of diligence. Also, his counsel fell ill the day before
the scheduling conference and it was for that reason that he was unable to
attend his hearing.
[8] In this case, the
facts are different. The IAD heard the applicant on the reasons justifying his
failure to attend, but it did not consider the applicant credible. It
considered all of the relevant facts, including the fact that the applicant had
been duly advised by the notice that was given to him on October 31, 2003, that
he had to inform the IAD of his change of address, which he never did. …
…
[10] Furthermore, giving the person who fails to appear the
opportunity to explain the reasons for his default in all cases would render
subsection 168(1) IRPA meaningless. …
…
[12] If the applicant'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 applicant 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 applicant'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 applicant 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 reopening the
appeal.
[47]
The Panel
did not appreciate this determination or ignore it, but rather assumed that Hung
applied. While it may have been open to the Panel to find that Hung did
apply, the Panel was obliged to consider the comments about the applicability
of Hung and explain why the circumstances warranted a departure from the
Federal Court’s assessment of Hung in Dubrézil. This is
especially true, as the Panel, in this case, as in Dubrézil, rejected
the Respondent’s explanation of why he did not attend his hearing. In not considering
the holding in Dubrézil, regarding the determination in Hung,
and, thus, in deciding to apply Hung, the Panel committed a reviewable
error.
PROBLEMS IN ABANDONMENT DECISION NOT RELEVANT
[48]
Mr.
Ishmael noted alleged errors in the IRB documents on the decision to declare
his claim abandoned. The Respondent’s concerns should be raised before the IAD
as grounds for the re-opening when the motion to re-open is returned to the
Immigration Appeal Division for redetermination. (Respondent’s Application Record,
p. 2, para. 14).
[49]
Mr.
Ishmael also suggests that the Appeal Division’s decision to declare the claim
abandoned was taken without jurisdiction as it was made under the former Act
which had been repealed when the abandonment decision was made; however, Mr.
Ishmael’s assertion is incorrect as i) the abandonment decision was taken under
the correct regime; and ii) allowing the latter decision to stand on that
basis, without further explanation, leads to illogical consequences:
·
Decision
taken under the correct regime: there are two Notices of Decision declaring the
claim abandoned. The December 12, 2005, Notice is issued pursuant to ss. 168(1)
of the IRPA. While the December 12 Notice may not bear the correct name of the
Respondent, it correctly identifies him by the IAD File number and his FOSS
number. The December 21, 2005, Notice declaring the claim abandoned under s. 76
of the former Act, bears the correct name, IAD File number and FOSS Number of
the Respondent; however, the December 21 Notice is issued in response to the
Respondent’s information that the earlier Notice bears the wrong name. As of
December 12, 2005, the Panel hearing the case declared the appeal abandoned
under the proper provisions of the IRPA, even though it may have attached the
wrong name on the Notice to Appear. As such, the IAD declared the claim
abandoned under the correct statutory regime, and committed no reviewable
error;
·
Illogical
consequences: Allowing the decision on the motion to re-open to stand on the
basis of the errors in the previous decision to declare the claim abandoned, in
light of the errors in determining the motion to re-open, would lead to
illogical consequences: i) it would be contrary to the principle that
administrative decisions, once accepted by the persons affected by them, should
not be subject to collateral attack; ii) it would ignore the basis of this
application for leave – the Panel’s errors of law and jurisdiction in assessing
the motion to re-open – and offers no remedy for the errors; iii) it would imply
that a latter error can correct a previous error, which cannot be the case for
errors of jurisdiction as either the decision is within the decision-maker’s
jurisdiction or it is not and this implication cannot stand; and iv) the proper
manner to deal with the Respondent’s arguments on the jurisdiction of the
decision to declare the appeal abandoned would be to have those concerns
assessed by the Panel that determines the motion to re-open.
ORAL REVIEW
[50]
Mr.
Ishmael argues that the decision to re-open is correct as it would afford him
an oral review on the merits of the continuation of his appeal. The right to
such an oral interview – determined by the Panel in its reasons to be an
entitlement required by natural justice in the circumstances – was afforded to
Mr. Ishmael at the November 30, 2005, hearing, but he was deemed to have
chosen, not to attend, despite having been given five months notice of the
hearing date. The review could only occur if Mr. Ishmael is still interested in
an appeal. Mr. Ishmael, in failing to attend, appeared to indicate that he was
not interested in his appeal. Furthermore, such a proposition is affected by
the same errors identified in Dubrézil – rendering ss. 168(1) of the
IRPA inoperative, and putting the Appeal Division in a position akin to acting
as counsel for the person. In any event, the assessment of the merits, due
to the errors, if any, committed, should be reserved for the Panel hearing the
continuance of the stay if the appeal is re-opened; that is, if a determination
is made by the Panel that the decision to declare it abandoned is tainted by a
breach of natural justice, stemming from the IAD, itself.
CONCLUSION
[51]
Based on
all of the above, the application for judicial review is allowed and the
matter is remitted for redetermination by a differently constituted panel of
the Immigration Appeal Division.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be allowed
and the matter be remitted for redetermination by a differently constituted Panel
of the Immigration Appeal Division;
2.
No serious question
of general importance be certified.
Obiter
The judgment is largely based
on the interpretation of the specific sections of the legislation in question;
and, thus, the general principles that flow therefrom and apply therein.
That, having been said, in this
specific case, unto itself (cas d’espèce), with its
particular fact pattern, not only was the Panel mistaken in its
interpretation of the current legislation, but, it also misunderstood
distinctions, drawn in respect of the previous legislation.
Additionally, it is important
to ascertain and ensure that the factual errors, committed by the
Panel in respect of the individual circumstances of the Respondent, not
be repeated.
Therefore, it is incumbent on the
newly designated Panel to ensure a complete redetermination of the matter.
“Michel M.J. Shore”
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