Date: 20110119
Docket: A-488-10
Citation: 2011 FCA 18
Present: SHARLOW
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
and
JAVED AZIZ
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
respondent Javed Aziz was the subject of a deportation order. He was entitled
to appeal to the Immigration Appeal Division (“IAD”) and did so, without
success. He sought and was granted leave to apply for judicial review of the
IAD decision (IMM-2019-10) but was deported before his application for judicial
review was heard on December 8, 2010. The hearing of his application for judicial
review resulted in an order of the Federal Court dated December 22, 2010 quashing
the IAD decision and requiring the deportation appeal to be reconsidered by a
differently constituted tribunal. The Minister of Citizenship and Immigration
appealed the Federal Court order and now seeks a stay of the Federal Court
order pending the disposition of this appeal. For the following reasons, the
motion for a stay will be dismissed.
[2]
The
Minister alleges that the order under appeal is based on one or more interpretations
of provisions of the Immigration and Refugee Protection Act, S.C. 2001,
c.27, that are wrong, and that were determined by the judge without giving the
Minister the opportunity to make submissions. Of particular concern to the
Minister are the comments of the judge in his endorsement to the order to the
effect that the IAD failed to consider whether to stay the deportation order
with conditions, and that Mr. Aziz “is to be returned to Canada forthwith”. To put those
comments in context, I quote the order and endorsement in their entirety (omitting
the reproduction in the endorsement of sections 66 and 68 of the Immigration
and Refugee Protection Act):
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ORDER
[1]
This judicial review application is granted, the March 18, 2010 decision of
the Immigration Appeal Division (IAD) is set aside and Javed Aziz’s appeal
from a deportation Order dated February 26, 2009 is to be reconsidered by a
differently constituted tribunal. No question of general importance was
proposed.
Endorsement
Javed Aziz, now 21 years old, was born in
Guyana and became a permanent resident of Canada in October 1997 after his father
sponsored his family. He was 8 years old at the time. His father abandoned
his family shortly after they arrived here.
He was ordered deported after a member of the
Immigration Division found him inadmissible under paragraph 361(a) of the Immigration
and Refugee Protection Act (2001, c. 27) (IRPA). He appealed that
deportation to the Immigration Appeal Division (IAD).
He conceded the legal validity of the
deportation order. The member of the IAD said at paragraph 4 of her reasons
that the only issue to be determined is whether there were sufficient
humanitarian and compassionate considerations to warrant special relief.
After setting out the Ribic factors as mandated by the Supreme Court of
Canada’s decision in Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3, she decided to dismiss the appeal principally
for the reason that she was not satisfied Mr. Aziz “has demonstrated that he
is capable of rehabilitation”.
Paragraph 36(1)(a) provides that a permanent
resident is inadmissible on grounds of serious criminality for having
been convicted in Canada of an offence under an Act of Parliament punishable
by a maximum term of at least 10 years or of an offence under an Act of
Parliament for which a term of imprisonment of more than six months has been
imposed.
Section 67(1)(c) enables the IAD to allow on
appeal from a deportation order taking into account the best interests of a
child directly affected by the decision if sufficient humanitarian and
compassionate considerations warrant special relief in light of al of the
circumstances of the case.
The reason this
judicial review must be allowed is because the member of the IAD failed to consider
an alternative ground for special relief, namely, if the appeal was not
allowed and the removal order quashed his Counsel at the IAD’s hearing
submitted “in the alternative I would submit that the execution of the
removal order should be stayed and obviously, clearly Mr. Aziz will abide by
al the conditions imposed by the Board if the order was to be stayed” (see
transcript in the Certified Tribunal Record (CTR) at page 189).
Counsel for the
Minister opposed the stay alternative (see CTR at page 191).
[…]
Nowhere in the
Member’s reasons is there any consideration of the stay alternative nor any
finding on that alternative.
The importance of the
stay alternative was emphasized by my colleague Justice Luc Martineau in Canada (Minister
of Citizenship and Immigration) v Awaleh, 2009 FC 1154 at
paragraphs 20 and 23:
20 The
IAD is bestowed with a great deal of discretion in conducting appeals of
removal orders. Pursuant to subsections 67(1)(c) and 68(1), the IAD may allow
an appeal or stay a removal order where they are satisfied, "taking into
account the best interests of a child directly affected by the decision, that
sufficient humanitarian and compassionate considerations warrant special
relief in light of all the circumstances of the case."
23 Finally,
it is important to reiterate that the impugned decision does not determine
the respondent's appeal of his removal order. The IAD may review the stay at
any time and vary the conditions or reject his appeal (see section 68 of the
Act). The rejection of the appeal would affirm the removal order and result
in the respondent being evicted from Canada.
I understand Mr. Aziz
has been deported to Guyana and is there now. In
view of this decision, he is to be returned to Canada forthwith.
In the light of the
foregoing, I refrain from commenting on the IAD’s decision except to say that
to this Court its finding the Applicant is incapable of rehabilitation
is unreasonable as the Member had no substantive evidence (medical,
psychiatric or from his parole officer) on the question.
THEREFORE, THIS COURT
ORDERS that this judicial review is granted.
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[3]
The
principal concern of the Minister is that the order under appeal could be
interpreted as an order requiring the Minister to return Mr. Aziz to Canada forthwith. I
do not read the order that way. Counsel for Mr. Aziz conceded, and I agree, that
the order does nothing except set aside the decision of the IAD and require a
rehearing. Although the judge stated that as a result of his order Mr. Aziz
would be returned to Canada, that statement appears only in the
endorsement and not in the order. Again I agree with counsel for Mr. Aziz that
this is simply the judge’s understanding of the meaning of section 52 of the Immigration
and Refugee Protection Act. The parties disagree on whether section 52
requires Mr. Aziz to be returned to Canada for the new IAD
hearing, but that is a point on which I am not required to express an opinion.
[4]
In
determining whether to stay an
order pending appeal, this Court follows RJR-MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311. According to that case, a
stay may be granted if a serious
issue is raised on appeal, the appellant will suffer irreparable harm if the stay is not granted, and the
balance of convenience favours the appellant.
[5]
The
order under appeal is governed by section 74 of the Immigration and Refugee
Protection Act.
Generally, such an order cannot be appealed in the absence of a
serious question of general importance certified by the judge who made the order.
In this case, the judge was not asked to certify a question and he did not do
so. I cannot
conclude that the Minister has established the existence of a serious question on appeal unless it is at least arguable
that the Minister was entitled to appeal without a certified question.
[6]
The
Minister argues that in this case no certified question is required. He relies
on a number of immigration cases in which this Court has permitted an appeal to
proceed despite the absence of a certified question. For example, in Forde
v. Canada (M.C.I.) (1997), 210 N.R. 194 (F.C.A.), the Court entertained an
appeal from a Federal Court order staying a deportation pending the disposition
of another immigration case. The Court concluded that no certified question was
required because issue was whether the stay order was within the jurisdiction
of the Federal Court under paragraph 50(1)(b) of the Federal Courts
Act, R.S.C. 1985, c. F-7. In Subhaschanddran v. Canada (Solicitor
General), 2005 FCA 27, [2005] 3 F.C.R. 255, the Court entertained an appeal
from a Federal Court order that it construed as a refusal of a judge to grant
or dismiss a motion to stay a deportation. This Court has also held that no
certified question is required to appeal an order on a motion for recusal based
on an allegation of bias, because such an allegation goes to the jurisdiction
of a judge to adjudicate the case: see, Narvey v. M.C.I., [1999] F.C.J.
25 (C.A.), Re Zündel, 2004 FCA 394.
[7]
In
my view, none of these cases assist the Minister. In this case, the Federal Court judge had
the jurisdiction to make an order disposing of Mr. Aziz’ application for
judicial review, and he did so. He did not decline to decide the application.
He did not purport to make an order on the basis of any statutory authority outside
the Immigration and Refugee Protection Act. There is no allegation of
actual or apprehended bias, and no facts upon which any such allegation could
be made.
[8]
For the
purpose of this motion, I assume without deciding that the judge may have
breached a rule of procedural fairness because he did not have the benefit of
submissions from the Minister when he interpreted section 52 as he did, or when
he concluded as he did that the IAD was obliged to put its mind to the question
of whether to stay the deportation with conditions. However, I am not persuaded
that such error, if it occurred, would have deprived the judge of his
jurisdiction to set aside the decision of the IAD and to order a rehearing. In
my view, the Minister does not have a reasonable basis for arguing that this appeal
may proceed without a certified question. I conclude that the Minister has not
established that a serious question is raised on the appeal.
[9]
That said,
it seems to me that the failure of the judge to give the Minister an opportunity
to make submissions on those two issues (assuming there was such a failure) is
a matter that might give the Minister a basis for seeking reconsideration or a
variation of the order under appeal, including a reconsideration of the issue
of whether this case merits a certified question. Therefore, although I will
make an order dismissing the Minister’s motion for stay, that will be without
prejudice to the right of the Minister to make a motion in the Federal Court
for appropriate relief and, depending upon the outcome of that motion, to
submit a new motion for a stay in this Court if circumstances warrant.
[10]
The
respondent has asked for costs. In my view there are no special circumstances
warranting such an award.
"K. Sharlow"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-488-10
(MOTION FOR ORDER, STAYING THE ORDER OF
THE HONOURABLE JUSTICE LEMIEUX DATED DECEMBER 22, 2010, DOCKET NO. IMM-2019-10)
STYLE OF CAUSE: THE
MINISTER OF CITIZENSHIP AND IMMIGRATION v. JAVED AZIZ
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 18, 2011
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: January 19, 2011
APPEARANCES:
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Brad Gotkin
Daniel Engel
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FOR THE APPELLANT
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Dov
Maierovitz
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE
APPELLANT
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Gertler,
Etienne LLP
Barristers and Solicitors
Toronto, Ontario
|
FOR THE
RESPONDENT
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