Date: 20080304
Docket: IMM-1859-07
Citation: 2008 FC 293
Ottawa, Ontario,
March 4, 2008
PRESENT: The
Honourable Mr. Justice O’Keefe
BETWEEN:
JUNIOR CHRISTOPHER WEEKES
By his litigation guardian John Norquay
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
O’KEEFE
J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Immigration Appeal Division (IAD) dated April 3, 2007, wherein
the board member determined that the applicant would not be permitted an
extension of time in which to appeal his removal order.
[2]
The
applicant requested an order quashing the decision not to allow the applicant’s
application for an extension of time to file his notice of appeal of the
removal order.
Background
[3]
Junior
Christopher Weekes (the applicant) is a citizen of Guyana. He became a
permanent resident of Canada on June 2, 1995 having been sponsored by his
father.
[4]
In
1997 and 1998, the applicant was arrested and charged with a number of criminal
offences including cocaine possession, failure to attend Court, obstructing a peace
officer, failure to comply with a probation order, uttering forged documents
and possession of stolen property exceeding $5000. On October 23, 1998, a
deportation order was issued against the applicant who was being detained at
Maplehurst Detention Centre.
[5]
The
applicant alleges that on November 3, 1999, a previous immigration counsel
filed an application with the IAD for an extension of time within which to
appeal the deportation order (the first application). The applicant alleges
that his previous counsel never received a response to this application. The
respondent claims that this application was never received by the appropriate
department.
[6]
From
the time when the deportation order was issued on October 23, 1998 to his
scheduled removal on October 26, 2006, the applicant appears to have been
detained and released on bond twice. On September 8, 2006, the applicant was
informed of his removal date. He attended his pre-removal interview on October
12, 2006. On October 16, 2006, the applicant submitted an application to extend
the time to file a notice of appeal of the deportation order issued on October
23, 1998 (the second application). In a decision dated April 3, 2007, the IAD
denied the application. This is the judicial review of the IAD’s decision.
Board’s Decision
[7]
The
entirety of the IAD’s decision reads as follows:
The application for the late filing of
Notice of Appeal of deportation order issued over 8 years ago is denied. The
appellant failed to establish as to why he had to wait so long before filing an
appeal against his deportation.
I certify that this is the decision and
reasons of the member in this appeal.
Issues
[8]
The
applicant submitted the following issues for consideration:
1. Are the reasons for
this decision inadequate and hence a breach of procedural fairness?
2. Did the IAD come to
its decision without regard to the evidence before it, contrary to paragraph
18.1(4)(d) of the Federal Courts Act?
3. What is the standard
of review for this decision?
4. Was this decision an
unreasonable (or patently unreasonable) one?
[9]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the IAD breach
procedural fairness in failing to provide the applicant with adequate reasons
for its decision?
3. Did the IAD commit
an error of fact in finding that the applicant had failed to establish why he
had to wait so long before filing an appeal against his deportation?
4. Did the IAD err in
denying the application?
Applicant’s Submissions
[10]
The
applicant submitted that the appropriate standard of review was one of
reasonableness (Khosa v. Canda (Minister of Citizenship and Immigration),
2007 FCA 24). In applying the pragmatic and functional approach, the applicant
submitted: (1) the decision was not protected by a full privative clause, (2)
the IAD has expertise on fact finding, but not procedural protections for
vulnerable parties, (3) a fundamental purpose of IRPA and the IAD Rules is to
protect vulnerable persons, and (4) the question was one of mixed law and fact.
[11]
The
applicant submitted that the IAD breached procedural fairness in failing to
provide adequate reasons for their decision. Adequate reasons are those that
serve the functions for which the duty to provide them was imposed. The decision
maker’s reasons must be set out and reflect consideration of the main relevant
factors (Via Rail Canada Inc. v. National Transportation Agency,
[2001] 2 F.C. 25 (C.A.) at paragraph 22). The applicant submitted that the
application was based on two important issues. Firstly, that the applicant had,
through his previous lawyer, filed a similar application in 1999. And secondly,
that the applicant was a vulnerable person not capable of appreciating that he
had to appeal the decision within a certain time period. The applicant
submitted that the IAD’s reasons did not refer to either of these issues and
thus they do not meet the necessary standard. In situations where a decision is
subject to a deferential standard of review, knowing and understanding the
rational behind a decision is particularly important (Via Rail Canada Inc. above
at paragraph 19).
[12]
The
applicant also submitted that the IAD made its decision without regard to the
evidence before it and thus contrary to paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F-7. The applicant submitted that there was no
mention in the IAD’s brief decision of the procedural fairness breach from the
Department’s apparent misplacement of the first application in 1999, nor was
there an appreciation of the applicant’s vulnerabilities as a mentally ill man.
The applicant submitted that the IAD’s use of the phrase “waiting so long
before filing an appeal” demonstrates a failure to appreciate the significant
problems and particular circumstances faced by the applicant and is not in the
spirit of Guidelines 8 on Procedures with Respect to Vulnerable Persons
Appearing Before the IRB.
[13]
And
finally, the applicant submitted that the IAD’s decision is reviewable on its
substance. The applicant submitted that given the minimum reasons provided, the
decision cannot stand up to even a somewhat probing examination.
Respondent’s Submissions
[14]
The
respondent submitted that section 169 of IRPA provides that reasons are to be
given in three circumstances: (1) with respect to final decision of any division
of the Immigration and Refugee Board, (2) where the Refugee Division rejects a
claimant’s claim for refugee protection, and (3) where the person concerned or
the Minister requests written reasons for the final decision. The respondent
submitted that as the decision in question was an interlocutory one, the IAD
was not required to give written reasons for its decision (Faghihi v. Canada
(Minister of Citizenship and Immigration), [2000] 1 F.C. 249 (T.D.), upheld
on appeal in 2001 FCA 163; Ali v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1153). In the alternative, the respondent submitted
that the reasons provided by the IAD were adequate as they set out the
rationale for the IAD’s decision (Rahman v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 487 (F.C.A.) at paragraphs 3
to 4).
[15]
The
respondent also submitted that the IAD is presumed to have considered the
totality of the evidence. The respondent submitted that the applicant’s
submission that the IAD failed to consider the medical or psychiatric evidence
cannot succeed. The IAD has no obligation to list each and every piece of
evidence brought before it (Hassan v. Canada (Minister of Employment
and Immigration) (1992), 147 N.R. 317 (F.C.A.)). The respondent noted that
the only medical evidence was a letter from Dr. Jerry Cooper, who speculatively
concluded that the applicant may have schizophrenia, but that he was not
certain. The respondent noted that Dr. Cooper’s letter further stated that he
found the applicant to be of low average to average intelligence, oriented in
all spheres with social judgment superficially intact. The respondent submitted
that there was also evidence before the IAD showing that the applicant was
capable of, in the past and currently, appointing a lawyer to represent him in
immigration and criminal matters.
[16]
And
finally, the respondent submitted that the applicant waived his opportunity to
raise an objection to the appeal process on the basis of his alleged mental
condition at the time of his appeal or in the eight years following it.
Inadequate representation from counsel does not entitle the applicant to have a
decision set aside (Jagessar v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 6
(F.C.A.)).
Analysis and Decision
[17]
Issue
1
What is the appropriate
standard of review?
The requirement of reasons is
normally a matter of procedural fairness reviewable on a standard of
correctness; however, section 169 of IRPA mandates when reasons are necessary
in the immigration process. Nevertheless, interpreting section 169 of IRPA is a
question of law and is also reviewable on a standard of correctness. The
adequacy of the IAD’s reasons is a question of procedural fairness and is
viewable on a standard of correctness (C.U.P.E. v. Ontario (Minister of
Labour), [2003]
1 S.C.R. 539). Errors of fact are reviewable on a standard of patently
unreasonable. The overall decision of the IAD is a question of mixed law and
fact, reviewable on a standard of reasonableness.
[18]
Issue
2
Did the IAD breach
procedural fairness in failing to provide the applicant with adequate reasons
for its decision?
The applicant submitted that
the IAD breached procedural fairness in failing to provide adequate reasons for
its decision. The respondent submitted that the decision was interlocutory in
nature and thus no reasons were required as per section 169 of IRPA. In the
alternative, the respondent submitted that if reasons were required, those
provided by the IAD were adequate.
[19]
Subsection169(b)
of IRPA reads as follows:
169. In the case of a decision of a
Division, other than an interlocutory decision:
[…]
(b) reasons for the decision must be
given;
[…]
Subsection 169(b) requires that upon
rendering a decision, the IAD must provide reasons unless the decision in
question is an interlocutory one.
[20]
The
respondent has submitted that the decision presently under review was an
interlocutory one. In making this argument, the respondent relied on the cases
of Faghihi above, and Ali above. These cases dealt with
applications to reopen decisions on the claimants’ refugee applications and
held that decisions denying the request to reopen were interlocutory in nature
and thus no reasons were required under section 169 of IRPA.
[21]
More
recently in Shahid v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1954, Justice Simpson
of this Court reviewed Faghihi above and Ali above. The case of Shahid
above, also dealt with the judicial review of a decision of the Immigration
and Refugee Board that dismissed the applicant’s application to reopen his
refugee claim. Similarly to the present case, in Shahid above, the
respondent also relied on Faghihi above and Ali above to support
the argument that the decision was an interlocutory one. At paragraphs 8 to 10
of Shahid above, Justice Simpson commented on these cases:
In my view, the respondent’s cases are
not helpful because it is clear that, both Justice Evans and Justice Mosley
were considering the nature of the motion rather than the decision.
In Reebok Canada v. Canada (Deputy Minister of National
Revenue, Customs and Excise) (1995), 179 N.R. 300, [1995- F.C.J. No. 220], the Federal
Court of Appeal considered whether a decision was final or interlocutory. The
decision was made by a judge of the Federal Court Trial Division who granted
leave to appeal to the Court of Appeal from a decision of the Canadian
International Trade Tribunal. The Court held that the decision granting leave
was interlocutory because it did not determine substantive rights but merely
enabled the appellant to have its substantive rights determined by the Court of
Appeal.
Against this background, the question is
how to characterize a decision not to re-open a refugee claim. Such a decision
means that a refugee claimant’s substantive rights will never be determined and
that the proceedings are at an end. For these reasons, I have concluded that a
negative decision on a motion to re-open is a final decision and that reasons
are required by subsection 169(b) of the IRPA.
[22]
My
understanding of Shahid above, is that the cases of Faghihi
above, and Ali above, are not helpful because they dealt with
interlocutory “matters” and not final “decisions”. I note that the exception
for providing reasons in section 169 of IRPA is for interlocutory “decisions”.
[23]
Based
on the reasoning in Shahid above, I find that the decision in the
present case is a final decision, not an interlocutory one. I am of this opinion
because the IAD’s decision has the effect of denying the applicant the
opportunity to have his substantive rights determined; the decision essentially
terminated any further action on the issue. If the decision had been a positive
decision, it would have been comparable to the situation in Reebok Canada v.
Canada (Deputy
Minister of National Revenue, Customs and Excise) (1995), 179 N.R. 300, and
interlocutory in nature as it would have enabled the appellant to have his
substantive rights determined. As such, I find that section 169 of IRPA
required the IAD to provide the applicant with reasons for its decision.
[24]
As
reasons were required, I must now consider whether those provided by the IAD
were adequate. The leading case on the adequacy of reasons is VIA Rail
Canada Inc. above, within which the Federal Court of Appeal at paragraphs
21 and 22 articulated that:
The duty to give reasons is only
fulfilled if the reasons provided are adequate. What constitutes adequate
reasons is a matter to be determined in light of the particular circumstances
of each case. However, as a general rule, adequate reasons are those that serve
the functions for which the duty to provide them was imposed. In the words of
my learned colleague Evans J.A., “Any attempt to formulate a standard of
adequacy that must be met before a tribunal can be said to have discharged its
duty to give reasons must ultimately reflect the purposes served by a duty to
give reasons.” (J.M. Evans et al., Administrative Law (4th ed.) (Toronto: Emond
Montgomery, 1995) at 507.
The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion. (Northwestern Utilities Ltd. v. Edmonton
(City), [1979] 1 S.C.R. 684 at 706, 89 D.L.R. (3d) 161.) Rather, the
decision-maker must set out its findings of fact and the principal evidence
upon which those findings were based. (Desai v. Brantford General
Hospital (1991), 87 D.L.R. (4th) 140 (Ont. Div. Ct.) at 148.) The reasons
must address the major points in issue. The reasoning process followed by the
decision-maker must be set out (Northwestern Utilities, supra at 707)
and must reflect consideration of the main relevant factors. (Suresh v. Canada (Minister of Citizenship and
Immigration), [2000]
2 F.C. 592 at 637 and 687-688, 183 D.L.R. (4th) 629 (C.A.)).
[25]
The
reasons provided by the IAD for its decision in the present case read as
follows:
The appellant failed to establish as to
why he had to wait so long before filing an appeal against his deportation.
[26]
In
my opinion, these reasons are inadequate. They fail to address the main issues
raised by the applicant in his application, to provide insight as to the
reasoning process and to reflect consideration of the main relevant factors.
[27]
I
am of the opinion that the result is a breach of the duty of procedural
fairness.
[28]
Because
of my finding on this issue, I need not deal with the remaining issues.
[29]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the IAD for redetermination.
[30]
The
respondent submitted the following proposed serious questions of general
importance for my consideration for certification:
1. What is the standard for
adequate reasons for a decision of the IAD on a motion for an extension of time
to commence an appeal?
2. What is the standard of review
on a judicial review of a decision of the IAD on a motion for an extension of time
to commence an appeal?
[31]
I
am not prepared to certify either of these questions. In Via Rail Canada
Inc. v. National Transportation Agency, [2000] F.C.J. No. 1685, the
Federal Court of Appeal reviewed the appropriate standard at paragraph 22:
The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion.
Rather, the decision-maker must set out its findings of fact and the principal
evidence upon which those findings were based. The reasons must address the
major points in issue. The reasoning process followed by the decision-maker
must be set out and must reflect consideration of the main relevant factors.
This determines that the first question
should not be certified.
[32]
As
to the second proposed question, I am of the view that previous case law has
established that the overall decision of the IAD should be reviewed on a
standard of reasonableness simpliciter. In any event, the standard can
be determined by applying a pragmatic and functional analysis.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the IAD for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Federal
Courts Act, R.S.C. 1985, c. F-7:
|
18.1(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
(a) acted
without jurisdiction, acted beyond its jurisdiction or refused to exercise
its jurisdiction;
(b) failed to
observe a principle of natural justice, procedural fairness or other
procedure that it was required by law to observe;
(c) erred in
law in making a decision or an order, whether or not the error appears on the
face of the record;
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
(e) acted, or
failed to act, by reason of fraud or perjured evidence; or
(f) acted in
any other way that was contrary to law.
|
18.1(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l'office fédéral, selon le cas:
a) a
agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b)
n’a pas observé un principe de justice naturelle ou d’équité procédurale ou
toute autre procédure qu’il était légalement tenu de respecter;
c)
a rendu une décision ou une ordonnance entachée d’une erreur de droit, que
celle-ci soit manifeste ou non au vu du dossier;
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
e)
a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f)
a agi de toute autre façon contraire à la loi.
|
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27:
|
169. In the case of a decision of a
Division, other than an interlocutory decision:
(a) the
decision takes effect in accordance with the rules;
(b) reasons
for the decision must be given;
(c) the
decision may be rendered orally or in writing, except a decision of the
Refugee Appeal Division, which must be rendered in writing;
(d) if the
Refugee Protection Division rejects a claim, written reasons must be provided
to the claimant and the Minister;
(e) if the
person who is the subject of proceedings before the Board or the Minister
requests reasons for a decision within 10 days of notification of the
decision, or in circumstances set out in the rules of the Board, the Division
must provide written reasons; and
(f) the period
in which to apply for judicial review with respect to a decision of the Board
is calculated from the giving of notice of the decision or from the sending
of written reasons, whichever is later.
|
169.
Les dispositions qui suivent s’appliquent aux décisions, autres
qu’interlocutoires, des sections:
a)
elles prennent effet conformément aux règles;
b)
elles sont motivées;
c)
elles sont rendues oralement ou par écrit, celles de la Section d’appel des
réfugiés devant toutefois être rendues par écrit;
d)
le rejet de la demande d’asile par la Section de la protection des réfugiés
est motivé par écrit et les motifs sont transmis au demandeur et au ministre;
e)
les motifs écrits sont transmis à la personne en cause et au ministre sur
demande faite dans les dix jours suivant la notification ou dans les cas
prévus par les règles de la Commission;
f)
les délais de contrôle judiciaire courent à compter du dernier en date des
faits suivants : notification de la décision et transmission des motifs
écrits.
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