Docket: IMM-914-16
Citation:
2016 FC 1059
Ottawa, Ontario, September 20, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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KULJEET SINGH
BISLA
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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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JUDGMENT AND REASONS
[1]
The Applicant, Kuljeet Singh Bisla [the
Applicant or Mr. Bisla], challenges a deportation order [Decision] issued by
the Immigration Division [the ID, or Board] dated April 27, 2015 pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act]. Mr. Bisla, who appeared by telephone, was (a) self-represented
before the ID and (b) required a Punjabi translator. It was these two aspects
of that ID hearing which have been challenged in this judicial review
application. For the reasons set out below, the application is dismissed.
I.
Background
[2]
Mr. Bisla was born October 7, 1986 and is a
citizen of India. He became a Canadian permanent resident on February 19, 2001,
as an accompanying child of his parents. He never became a Canadian citizen
and thus finds himself in the current predicament.
[3]
On January 19, 2015, Mr. Bisla pled guilty and
was convicted of sexual interference with a minor contrary to section 151 of
the Canadian Criminal Code, RSC 1985, c C-46. The maximum term of
incarceration for this offence is ten years. Mr. Bisla was sentenced to 18
months in jail and two years of probation, given that “the
accused alone is responsible for these offences”, which “are serious offences such that his moral culpability is at
the higher end of the scale”.
[4]
In the sentencing report, the Court recognized
that Mr. Bisla “likely has some cognitive difficulties”
and was “immature”, but nonetheless, he had
maintained a job for many years, and lived in the family home.
[5]
On February 23, 2015, a report under section
44(1) of the Act was issued against Mr. Bisla and he was determined to be
inadmissible to Canada pursuant to section 36(1)(a) of the Act.
[6]
On April 27, 2015, Mr. Bisla appeared by phone
before the ID for an admissibility hearing. At the hearing, which took place
via teleconference, Mr. Bisla requested a Punjabi translator shortly after the
hearing had begun. Once a translator was arranged, the ID Member reviewed what
had been previously discussed. Mr. Bisla confirmed that he had been convicted
of sexual interference with a minor. A deportation order was issued against Mr.
Bisla at the end of the proceedings.
[7]
Applicant’s counsel, by way of this judicial
review, argues that because an interpreter was not provided from the start of
the hearing, Mr. Bisla was unable to appreciate the nature of the proceedings
at the ID and lacked the opportunity for proper translation and legal
representation, rendering the process unfair.
[8]
The Applicant further argues that a designated representative
should have been appointed per the Immigration Division Rules,
SOR/2002-229, and that he should have been advised of a right to counsel
instead of just being asked whether he had counsel, to which he responded that
he was unable to find a lawyer, so he would not be represented.
[9]
The Respondent, relying on Li v Canada
(Minister of Citizenship and Immigration), 2015 FC 927 at para 14, counters
that the appropriate standard of review for an applicant’s access to counsel is
reasonableness. The Respondent contends that Mr. Bisla was specifically asked
if he understood the reason for the proceedings and he answered “yes”. The questions posed by the ID Member were
simple confirmations of the Applicant’s conviction and sentence. The Applicant
did not express concern with the questions posed to him.
[10]
Furthermore, the Respondent asserts that the ID
provided an interpreter immediately upon the Applicant’s request, and that Mr.
Bisla understood the interpreter. The decision, and process, in the
Respondent’s view, were entirely reasonable,
[11]
The standard of review applicable to questions
of procedural fairness is the correctness standard: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12. The Courts give no deference to
decision-makers where the application of the duty of fairness is called into
question: Re: Sound v Fitness Industry Council of Canada and Goodlife
Fitness Centres Inc., 2014 FCA 48, at para 35. Any errors of fact, on the
other hand, are to be reviewed on a standard of reasonableness: Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47.
[12]
I agree with the Respondent in finding that the
Applicant’s rights to natural justice and procedural fairness were not breached
in the ID proceedings under review.
[13]
Regarding comprehension of the proceedings, I
note first that Mr. Bisla was asked at all points in the proceedings whether he
understood, and he answered that he did. He both asked and answered questions
of the ID Member, without any indication of a lack of understanding.
[14]
Also noteworthy is the fact that the Applicant
underwent various interviews with different CBSA officers. He provided
significant input during these interviews and no interpreter was present. The
evidence also shows that the Applicant maintained a job in Canada for many years.
[15]
Second, when Mr. Bisla decided that he wanted an
interpreter after the ID hearing had commenced, the Member immediately acceded
to this request and went off the record, waiting for the interpreter. When the
interpreter joined shortly afterwards, the ID Member reviewed what had taken
place earlier -- with interpretation.
[16]
As for the lack of counsel, the purpose of this
ID proceeding was to confirm Mr. Bisla’s prior conviction. This required a
simple “yes” or “no”
answer; one which I find Mr. Bisla was capable of both understanding and
providing with or without counsel. Then, having confirmed that the Applicant
had been convicted of an indictable offence and receiving a sentence of over
six months, the ID Member had no choice but to issue a deportation order in the
circumstances (by operation of subsection 45(d) of the Act and para 229(1)(c)
of the Immigration and Refugee Protection Regulations, SOR/2002-227).
As Jusice de Montigny held in Canada (Citizenship and Immigration) v Fox, 2009
FC 987 at para 39:
The Tribunal’s function at the admissibility
hearing is exclusively to find facts. If the member finds the person described
in section 36(1)(a) of the IRPA, then pursuant to section 45(d)
of the IRPA and section 229(1)(c) of the Immigration and Refugee
Protection Regulations, the Tribunal must issue a Deportation Order
against the person.
[17]
Furthermore, no medical or psychological
evidence pertaining to Mr. Bisla’s alleged cognitive disability was placed
before the ID Member. I agree with Mr. Bisla’s counsel in this judicial review
that any disability of Mr. Bisla, as a permanent resident, should be considered
at the start of the ID hearing: Cha v Canada (Minister of Citizenship and
Immigration), 2006 FCA 126 at para 41. That said, I do not find that the
Board erred in proceeding with the inadmissibility hearing based on the
background documentation, and/or its interaction with the Applicant during the
hearing, both before and after the interpreter was present. In short, the
Applicant’s duty of fairness was respected.
[18]
I also disagree with the Applicant’s argument
that Rules 18 and 50 Immigration Division Rules, SOR/2002-229, assist
Mr. Bisla. These Rules read as follows:
Rule 18 – Duty of counsel to notify the
Division
If counsel for a party believes that the
Division should designate a representative for the permanent resident or
foreign national in the proceedings because they are under 18 years of age or
unable to appreciate the nature of the proceedings, counsel must without delay
notify the Division and the other party in writing. If counsel is aware of a
person in Canada who meets the requirements to be designated as a
representative, counsel must provide the person’s contact information in the
notice.
Rule 50 – Powers of the Division
The Division may
(a) act on its own, without a party
having to make an application or request to the Division;
(b) change a requirement of a rule;
(c) excuse a person from a requirement
of a rule; and
(d) extend or shorten a time limit,
before or after the time limit has passed.
[19]
There was no obligation in this instance for the
Member to have made available a designated representative on the basis of Rules
50 and 18. To hold otherwise would be to impose a positive obligation on
opposing counsel and the ID Member to assess an applicant’s mental capacity
where the Applicant confirmed that he understood the nature of the proceedings,
and the Board believed the Applicant appreciated the nature of the
proceedings. In other words, the Member met his obligation to satisfy himself
of the Applicant’s capacity to understand the proceedings, based on the input
of the Applicant, his exchanges with the Applicant and the documentation placed
before the Board.
[20]
Finally, the Applicant raised an issue with the
pre-removal risk assessment [PRRA]. This Court neither has the facts nor
supporting documentation to make any determination with respect to a previous
PRRA. The only evidence presented in this judicial review is a single sentence
in the Affidavit of Gail Begley stating that she offered Mr. Bisla a PRRA, and
he responded that he was not going to apply for it. The PRRA issue falls
outside of the scope of this judicial review. If the Applicant feels that any
PRRA-related procedure was breached, that should be raised in a separate application
with supporting materials.
[21]
Ultimately, Parliament drew a harsh line when it
drafted subsection 45(d) and paragraph 129(1)(c) of the Act and its Regulations
respectively. These provisions provide that once the ID receives a s. 44
referral for serious criminality, its sole function is to conduct a factual
inquiry. If the facts underlying the inadmissibility based on serious
criminality are correct, the ID has no choice but to issue the removal order.
Here, the facts before the ID were that the Applicant received an 18 month
prison sentence for having committed the offence.
[22]
As explained to Applicant’s counsel at the
judicial review hearing, this judicial review application was not the right
context in which to raise or contest humanitarian and risk-related factors,
given the stage of enforcement being challenged. Rather, the right time to
have raised those considerations would have been when there may have been some
limited discretion for the officer, before issuance of the section 44(1)
report. However, that train had long left the station by the time the matter
arrived at Federal Court.
[23]
In sum, I find no error in the ID Member’s
finding that the Applicant had committed the offence in question, and in
subsequently issuing the deportation order. The application for judicial
review is accordingly dismissed.
IV.
CONCLUSION
[24]
This application for judicial review is
dismissed. Neither counsel raised any questions for certification. No costs
will be ordered.
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