Docket: IMM-1429-16
Citation:
2016 FC 1065
[ENGLISH TRANSLATION]
Ottawa, Ontario, September 20, 2016
PRESENT: The Honourable Mr. Justice Shore
|
BETWEEN:
|
|
HONG NHAN TRAN
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) of a decision of the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board to dismiss the applicant’s
appeal for lack of jurisdiction, on March 15, 2016.
II.
Facts
[2]
The applicant, age 32, is a citizen of
Vietnam. She became a permanent resident of Canada on March 8, 2003.
[3]
On May 24, 2011, the applicant was found
guilty of conspiracy (paragraph 465(1)(c) of the Criminal Code) and
drug trafficking (subsection 5(1) of the Controlled Drugs and
Substances Act). On September 14, 2011, she received a conditional
sentence of two years less a day.
[4]
Following a hearing before the Immigration
Division (ID) on June 18, 2015, the applicant was inadmissible in Canada
for serious criminality under paragraph 36(1)(a) of the IRPA and a removal
order was issued against her.
[5]
On June 18, 2015, the applicant submitted a
Notice of Appeal to the IAD.
[6]
On December 22, 2015, the IAD asked the
parties to file their written representations regarding its jurisdiction,
pursuant to subsections 64(1) and 64(2) of the IRPA, with respect to the
appeal in the case of serious criminality, given the applicant’s sentence.
[7]
On January 11, 2016, the applicant
submitted her written representations to the IAD through her counsel.
[8]
On March 15, 2016, the IAD declined
jurisdiction and dismissed the appeal.
III.
Decision
[9]
In its decision, the IAD considers that the
applicant lost her right to appeal because she was convicted of two offences
under paragraph 36(1)(a) of the IRPA and because she falls under
subsections 64(1) and 64(2) of the IRPA, given that she received a
sentence of imprisonment of at least six months.
[10]
The IAD equates the conditional sentence of two
years less a day to a sentence of imprisonment within the meaning of paragraph 36(1)(a)
of the IRPA, based on the Federal Court decision, Canada (Public Safety and
Emergency Preparedness) v. Tran, 2015 FCA 237 [Tran FCA],
at paragraph 88 (the Court underscores that there is no connection between
the case of the applicant, Hong Nhan Tran, and the decision cited).
A conditional sentence of imprisonment
imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal
Code may reasonably be construed as a term of imprisonment under paragraph 36(1)(a)
of the IRPA.
[11]
Consequently, the IAD finds that it does not
have the required jurisdiction to hear the applicant’s appeal and dismisses it.
IV.
Relevant Provisions
[12]
In this matter, provisions 36(1)(a), 64(1)
and 64(2) of the IRPA apply. They were considered by the Federal Court in Tran
v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1040,
then by the Federal Court of Appeal in Tran FCA, cited above.
V.
Parties’ Representations
[13]
The applicant submits that the IAD’s decision to
consider the sentence of imprisonment of two years less a day to be served in
the community as equivalent to a sentence of imprisonment of at least six
months within the meaning of paragraph 36(1)(a) of the IRPA is
unreasonable. She argues that the Federal Court of Appeal, in spite of its
findings, wanted to leave the ID and IAD decision-makers some latitude.
Obviously the deference granted to
administrative decision makers is in part meant to give them flexibility to
adjust to new arguments and circumstances. It is thus obviously open to the ID
and the IAD to adopt another interpretation should they believe that it is
warranted by the inconsistent consequences described above.
(Tran FCA, cited above, at
paragraph 87)
Thus, according to the applicant, it was
unreasonable for the IAD not to present its own analysis regarding the
inconsistent consequences that this interpretation of paragraph 36(1)(a)
of the IRPA was likely to entail. In effect, a sentence of imprisonment of a
little less than six months would be treated less severely than a conditional
sentence of a little more than six months.
[14]
Furthermore, the applicant maintains that the
IAD committed an error by refusing to suspend the review of her file,
considering that an application for leave to appeal the Tran FCA
decision was filed with the Supreme Court on December 29, 2015, and
granted on April 14, 2016. The applicant argues that the IAD’s decision
not to wait for the Supreme Court’s decision is unreasonable because it does
not take into account the three-year time limit for appealing before the IAD
and it demonstrates a lack of comity towards the Supreme Court.
[15]
Conversely, the respondent maintains that the
IAD was required to apply the principle of stare decisis and follow the
findings established by the Federal Court of Appeal in Tran FCA, rather
than re-interpreting them. Moreover, the respondent notes that the IAD is free
(but not required) to propose an interpretation that differs from that of the
Federal Court of Appeal if new arguments or new circumstances warrant it, which
is not the situation in this case.
[16]
Finally, the respondent says that it is not in
the interests of justice to suspend the applicant’s appeal book for more than a
year, citing the decisions of this Court that established that lower courts are
required to continue to apply the law until it is overturned even when there is
a pending appeal (Ospina Velasquez v. Canada (Citizenship and Immigration),
2013 FC 273, at paragraph 9, and Mata Mazima v. Canada
(Citizenship and Immigration), 2012 FC 698, at paragraph 12).
VI.
Issues in dispute
[17]
The Court identified the following questions in
this matter:
1)
Were there sufficient grounds for the IAD’s
decision to decline jurisdiction and dismiss the applicant’s appeal?
2)
Did the IAD err in fact and in law by deciding
not to suspend the review of the applicant’s case while waiting for the Supreme
Court’s decision in Tran FCA?
[18]
The applicable standard of review for the first
issue in dispute is that of correctness. It involves a principle of procedural
fairness, specifically the requirement that administrative decision-makers give
reasons for their decision (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 SCR 817).
[19]
If the Court answers the first question in the
affirmative and turns to the second issue in dispute, the applicable standard
of review is that of reasonableness (Dunsmuir v. New Brunswick,
[2008] 1 SCR 190, 2008 SCC 9).
VII.
Analysis
[20]
The application for judicial review should be
allowed. The IAD’s decision is unfair in that the IAD breached its duty to
provide sufficient reasons for its decision, in particular, its interpretation
of paragraph 36(1)(a) of the IRPA.
A.
Reasons for the IAD’s decision
[21]
In Tran FCA, at paragraphs 81 and
86, the Federal Court of Appeal points out that a certain interpretation of
paragraph 36(1)(a) of the IRPA might produce inconsistent consequences,
but that the legislative history shows that Parliament was aware of and wanted
this state of affairs:
[81]. The legislative history is
particularly relevant in this case to assessing what I consider the most
serious argument militating against the interpretation adopted by the Minister’s
delegate: the inconsistent consequences and even absurdity when one considers
that the IRPA treats a conditional sentence of imprisonment of seven months
more severely than a five months jail term.
. . .
[86] The opinion that Parliament still
views terms of imprisonment of more than six months served in the community as
serious enough to warrant losing one’s right of appeal of a finding of
inadmissibility is certainly supported by the legislative history when
subsection 64(2) was amended in 2013 allegedly to put it in line with
paragraph 36(1)(a). Although such interpretative tools are typically given
less weight than others, I simply cannot conclude that the interpretation of
the Minister’s delegate, which the legislative history appears to support,
should be found unreasonable on the basis that it produces inconsistent consequences
which might be regarded as absurd. These inconsistencies were clearly spelled
out and considered before the adoption of subsection 64(2) and no change
was made to exclude those inconsistent consequences.
[22]
Nevertheless, as previously mentioned, the
Federal Court of Appeal wanted to give the Courts latitude in applying this
provision:
Obviously the deference granted to
administrative decision makers is in part meant to give them flexibility to
adjust to new arguments and circumstances. It is thus obviously open to the ID
and the IAD to adopt another interpretation should they believe that it is
warranted by the inconsistent consequences described above.
(Tran FCA, cited above, at paragraph 87)
[23]
In this case, although the IAD is not required
to interpret this provision differently, its decision-makers must nevertheless
provide sufficient reasons for their decisions.
[24]
In Febles v. Canada (Citizenship and
Immigration), [2014] 3 SCR 431, 2014 SCC 68, in a
decision written by Chief Justice McLachlin, the Supreme Court
describes the determination of the severity of a crime as follows:
[62] The Federal Court of Appeal in Chan
v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390
(C.A.), and Jayasekara, was of the view that the crime is generally
considered serious if a maximum sentence of ten years or more could have been
imposed had the crime been committed in Canada. I agree. However, this
generalization should not be understood as a rigid presumption that is
impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985,
c. C-46 has a large sentencing range, the upper end being ten years or
more and the lower end being quite low, a claimant whose crime would fall at
the less serious end of the range in Canada should not be presumptively
excluded. Article 1F(b) is designed to exclude only those whose crimes are
serious. The UNHCR has suggested that a presumption of serious crime might be
raised by evidence of commission of any of the following offences: homicide,
rape, child molesting, wounding, arson, drugs trafficking, and armed robbery
(Goodwin-Gill, at p. 179). These are good examples of crimes that are
sufficiently serious to presumptively warrant exclusion from refugee
protection. However, as indicated, the presumption may be rebutted in a
particular case. While consideration of whether a maximum sentence of ten
years or more could have been imposed had the crime been committed in Canada is
a useful guideline, and crimes attracting a maximum sentence of ten years or
more in Canada will generally be sufficiently serious to warrant exclusion, the
ten-year rule should not be applied in a mechanistic, decontextualized, or
unjust manner. [Emphasis of the Court]
[25]
The IAD should have allegedly considered the
applicant’s specific case and provided sufficient reasons for its decision in
order to ensure procedural fairness.
B.
Suspension of the appeal while awaiting the
Supreme Court’s decision.
[26]
Given the Court’s finding on the matter of
procedural fairness, the question of whether or not to suspend the appeal book
until the Supreme Court renders a final ruling on Tran FCA becomes
theoretical.
[27]
However, it should be pointed out that a modern
decision rendered by Justice Yves de Montigny, Federal Court
judge at the time, found that the IAD could have allegedly suspended the case
being appealed, given the significance of the questions raised and in the
interests of justice to avoid inconsistent decisions. Under such circumstances,
deference to the Supreme Court allows a proceeding to be suspended:
[11] In the meantime (on July 4,
2013), the Supreme Court granted leave to appeal in Febles v Canada
(Citizenship and Immigration), 2012 FCA 324 [Febles FCA].
On November 12, 2013, the Applicant requested a stay of this proceeding
pending the SCC decision in Febles. The Applicant also requested to make
further submissions after the Febles SCC decision was rendered.
12. On November 26, 2013,
Chief Justice Crampton granted the request. The SCC decision in Febles
was rendered on October 30, 2014. On January 13, 2015, Justice
Beaudry ordered that the parties make submissions on the impact of the Supreme
Court’s decision in Febles. [Emphasis of the Court]
(Jung v. Canada (Citizenship and
Immigration), 2015 FC 464
[28]
Consequently, the Court is of the opinion that
the IAD’s decision not to suspend the applicant’s appeal until the Supreme
Court renders a decision in Tran FCA merits consideration by the IAD.
VIII.
Conclusion
[29]
The Court finds that there was a breach of the
duty of procedural fairness as a result of the IAD’s failure to present
sufficient grounds for its decision. The application for judicial review is
allowed. The Court refers the case to the IAD for reconsideration by a
different panel of the restriction on the right of appeal.
Email this Content