Docket: IMM-3020-17
Citation:
2017 FC 795
Vancouver, British Columbia, August 31, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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SARBJEET SINGH
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Applicant
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and
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MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is a motion by the Applicant seeking an
order pursuant to Rule 22(1) of the Federal Courts Citizenship, Immigration
and Refugee Protection Rules, SOR/93-22 (FCCIRP Rules) and
Rule 8 of the Federal Courts Rules, SOR/98-106, to extend the time
within which the Applicant may perfect his application for leave under Rule 10
of the FCCIRP Rules, until 30 days after the Supreme Court of Canada (SCC)
renders a decision in Tran v Canada (MPSEV) (SCC File No. 36784)
(Tran), and upon such further and other grounds as the Court considers
just and appropriate.
II.
Background
[2]
The facts are not in dispute:
(a)
The Applicant is a national of the Republic of
India. He was sponsored to Canada by his spouse and became a permanent resident
of Canada on March 15, 2009.
(b)
On May 11, 2011, the Applicant was convicted in
London, Ontario, of two counts of “luring a child under
sixteen years of age,” contrary to section 172.1 of the Criminal Code,
RSC 1985, c C-46. He was sentenced to 15 months imprisonment and three
years’ probation.
(c)
By letter dated March 8, 2016, the Canada Border
Services Agency (CBSA) gave the Applicant notice of a section 44 report and an
opportunity to provide submissions as to why the report should not be referred
to the Immigration Division of the Immigration and Refugee Board (IRB).
(d)
The Immigration Division held a hearing
concerning the section 44 on December 21, 2016, and determined the
Applicant was inadmissible, for serious criminality under paragraph 36(1)(a) of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA):
a permanent resident who is inadmissible to Canada for serious criminality for
having been convicted of a federal offence punishable by a maximum term of
imprisonment of at least 10 years for which a form of imprisonment of more than
six months has been imposed, and issued a deportation order against him.
[3]
The Applicant appealed to the Immigration Appeal
Division (“IAD”) and asked the IAD to stay their
proceedings pending a decision from the Supreme Court of Canada in Tran.
The IAD decided not to stay their proceedings and stated, “the panel finds no infringement of natural justice or
procedural fairness in deciding its jurisdiction at this time, because there
are safeguards that would permit the Appellant to pursue his appeal at the IAD
in the event the SCC hands down a decision that supports the Appellant’s
argument”.
[4]
The Applicant subsequently requested disclosure
from the CBSA for evidence regarding when it was initially informed the
Applicant had been charged with the criminal offences in 2010 and it had first
learned of the Appellant’s 2011 conviction.
[5]
The CBSA advised the Applicant’s counsel it
would not disclose the information and advised that he had to make an
application pursuant to the Access to Information Act, RSC 1985, c A-1
or the Privacy Act, RSC 1985, c P-21.
[6]
The Applicant filed a further application with
the IRB on April 26, 2017, seeking orders from the Board for disclosure of
information from the CBSA and the London Police Service related to the
Applicant’s arrest, charges and conviction.
[7]
In support of the application was an affidavit
from the Applicant in which he recalled being told by a London Police Service
officer when he was arrested in 2010 that the CBSA would be informed of the
charges. The issue of a possible abuse of process was raised in seeking the
disclosure of information.
[8]
The IAD went on to determine that it lacked
jurisdiction to hear the appeal because the Applicant was barred by subsection
64(2) of the IRPA, given that he had been sentenced to more than six
months imprisonment.
[9]
The Applicant then commenced an application for
leave and judicial review.
[10]
The Applicant argues that the Court has the
discretion to stay a leave application for judicial review pending the outcome
of Tran, which could be binding on the Court. The Applicant states that Tran
is considering the same issues as in this case, namely, whether legislation
affecting the appellant’s rights is to be determined as of the date he was
convicted of a criminal offence giving rise to his admissibility, or the law as
it stands at the date his section 44 report was referred to the IRB.
III.
Issue
[11]
The issue for the Court is whether, in all the
circumstances, it is in the interests of justice to delay the Applicant’s
application for a two month extension, in anticipation of the Supreme Court of
Canada’s decision in Tran (Mylan Pharmaceuticals ULC v AstraZeneca
Canada, Inc et al, 2011 FCA 312 (Mylan), at para 14). I agree with
the Respondent that while the motion characterizes this application as an
extension request, in reality it is an application for a stay of the proceeding
pending the Supreme Court of Canada decision in Tran.
[12]
The standard of review of the impugned decision
of the IAD not to extend the time for the hearing in respect of the ID
decision, pending the appeal to the SCC of the FCA decision in Tran, is
reasonableness.
[13]
The Applicant’s position is that the Court needs
to determine if:
- the Board erred
in refusing to defer its decision pending a decision by the SCC in Tran;
- the Board erred
in failing to consider the Applicant’s motion for disclosure of
information relating to issues concerning abuse of process;
- the Board erred
in determining that it had no jurisdiction to hear the appeal, because his
case was referred to a hearing before the IRB, after the current
subsection 64(2) of the IRPA came into effect in June, 2013;
- the Court should
exercise its discretion to stay the proceeding based on broad
discretionary considerations, including the public interest, given the factual
circumstances here: Mylan, above, at para 5; and Sanchez
v Canada (MCI), 2014 FCA 19 (Sanchez), at para 8; and
- particularly,
unlike the cases relied upon by the Respondent, dealing with delay not
being in the public interest, the SCC decision in Tran is imminent,
having been heard in January 2017.
[14]
The Applicant acknowledges that while the Mylan
and Sanchez cases considered section 50(1) of the Federal
Courts Act, RSC 1985, c F-7, and there is no express equivalent to section
50 of the Federal Courts Act in the IRPA or the Immigration
Appeal Division Rules, SOR/2002-230, nevertheless there is a broad
discretion for all decisions at the IRB under subsection 162(2) of the IRPA
and Rule 57 of the Immigration Appeal Division Rules:
Procedure
162(2) Each Division shall deal with all
proceedings before it as informally and quickly as the circumstances and the
considerations of fairness and natural justice permit.
No applicable rule
57 In the absence of a provision in these
Rules dealing with a matter raised during an appeal, the Division may do
whatever is necessary to deal with the matter.
[15]
As such, the Applicant argues that the Court
should consider, as in Mylan and Sanchez, the length of delay,
whether there is a strong nexus between the matter before the IAD and the
higher court (i.e. Tran in the SCC), and whether a delay would prejudice
the public interest in the prompt determination of immigration proceedings.
[16]
The Respondent replies that it is not in the
interests of justice to stay the proceedings pending the Supreme Court’s
decision in Tran, because:
a)
Tran is not interactive to the Applicant’s
application;
b)
it is contrary to principles of judicial review;
and
c)
there is no merit to the underlying application.
[17]
The Respondent argues that unlike the Tran
proceedings, which involved amendments to the Controlled Drugs and Substance
Act, SC 1996, c 19, which did not have transitional provisions, this case
relates to amendments to the IRPA, which include a transitional provision.
[18]
Moreover, the Respondent argues that given the
need for finality, the summary and expeditious nature of judicial review and
the duty to apply the law as it stands, even if the Tran decision could
have some relevance, the stay should nevertheless be refused.
[19]
The Respondent’s position is that the decision
in Tran, while heard in January, 2017, may or may not be imminent and
the timing is purely speculative, and may or may not provide a definitive
answer to the Applicant’s underlying issues in his application for judicial
review. The public interest will only be served with a prompt determination of
these proceedings and it is in the interests of justice to follow the current
state of the law – several recent decisions have confirmed that the Federal
Court of Appeal’s decision in Tran, Canada (MPSEV) v Tran,
2015 FCA 237, is currently the determinative state of law that binds the
Court: Nguyen v Canada (Citizenship and Immigration), 2016 FC 305, at
para 11; Shehzad v Canada (Citizenship and Immigration), 2016 FC 79 at
paras 11 to 14; and Kidd v Canada (Public Safety and Emergency Preparedness),
2016 FC 1044, at para 23.
[20]
Finally, the Respondent state that it is not in
the interest of justice to stay the Applicant’s proceedings pending the outcome
in Tran, because the Applicant’s underlying application is without merit. The
IAD decision to stay their own proceedings is entirely discretionary and the
Court should defer to them on that matter. There is also no merit to the
argument that the IAD decision refusing jurisdiction is unreasonable, because
the applicable transition provision foreclosed appeal and they followed the law
as it stood at the time.
[21]
I agree with the Respondent that while the Tran
decision in the SCC may be issued sometime in the next few months, that timing
is at best speculative and there is no certainty that the outcome of that
decision will be determinative of the Applicant’s rights in this case.
[22]
Moreover, I also agree that the applicable transition
provision with respect to subsection 64(2) was followed by the IAD and is
currently determinative of the state of the law that binds this Court. The
interests of justice do not support the delay sought by the Applicant.
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