Date: 20050920
Docket: IMM-99-05
Citation: 2005 FC 1294
Ottawa, Ontario, September 20, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
THE SOLICITOR GENERAL OF CANADA
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicants
and
SANJEEVAN SIVANANTHAN
Respondents
REASONS FOR ORDER AND ORDER
[1] The issue in this case is whether the Immigration Appeal Division of the Immigration and Refugee Board breached the rules of procedural fairness in its handling of this case. The applicants assert that the presiding member acted unfairly in 'jumping the gun' - that is, by making a decision before the time had expired for the parties to provide their submissions.
[2] I agree that there was a serious denial of procedural fairness in this case, and as a result, the application for judicial review will be allowed.
Chronology of Events
[3] Sanjeevan Sivananthan was ordered deported on March 18, 2002 as a result of his having been convicted of several criminal offences including assault causing bodily harm, failing to comply with a recognizance, obstructing the police and causing a disturbance.
[4] On January 10, 2003, Mr. Sivananthan's removal was stayed, provided that he complied with a number of conditions. These included the requirement that he not commit any further criminal offences, and that he immediately advise the Department of Citizenship and Immigration if he were either charged with or convicted of a criminal offence. Mr. Sivananthan was also required to make reasonable efforts to seek and maintain full-time employment, to report any changes in his employment status, and to keep the peace and be of good behaviour.
[5] According to the Certified Tribunal Record, Mr. Sivananthan's file was placed before an IAD member on September 21, 2004. The member directed that a "Notice of Final Reconsideration of Appeal Stay" be sent to the parties, and that the parties be given until November 1, 2004 to respond. The member also asked that the matter be brought forward on November 2, 2004. It does not appear that this document was provided to the parties at the time.
[6] By letter dated October 26, 2004, the IAD advised the parties that Mr. Sivananthan's case was to be reviewed, in accordance with subsection 74(2) of the former Immigration Act. The letter states, in part:
In accordance with the order of the Immigration and Refugee Board, Appeal Division, signed the 10th day of January, 2003, the execution of the removal order made against you was stayed.
This is to advise you that the Appeal Division will review your case in chambers on or about JANUARY 10, 2005. Neither the appellant nor the respondent is required to attend this review.
[...]
NOTE: The respondent is required to indicate in writing the position of the Minister in regards to this [re]view. [emphasis in the original]
There is no mention in this letter of the November 1, 2004 deadline for submissions.
[7] From the Certified Tribunal Record, it appears that on November 23, 2004, a Case Management Officer noted on the file that no response had been received from the parties in relation to the file. The matter was then returned to the presiding member, who some time in late November of 2004, endorsed the following on the file:
- Stay cancelled;
- Deportation order quashed;
- Appeal allowed
[8] It does not appear that this decision was communicated to the parties at this time.
[9] On December 6, 2004, counsel for the Solicitor General sent detailed submissions regarding Mr. Sivananthan's case to the Board. These submissions indicated that it was the Minister's position that Mr. Sivananthan's stay should be cancelled, as he had not complied with the conditions of the stay. Evidence was provided that since the stay had been granted, Mr. Sivananthan had been convicted of obstructing a police officer, and had been charged with other criminal and provincial offences. Counsel also advised that Mr. Sivananthan had failed to notify the Department of Citizenship and Immigration of either the charges or the criminal conviction, which was in further breach of the conditions of the stay.
[10] In the Minister's view, Mr. Sivananthan had shown complete disregard for the conditions imposed upon him. As a consequence, counsel for the Solicitor General submitted that Mr. Sivananthan's appeal should be dismissed, or an oral hearing scheduled to review the matter.
[11] The Minister's submissions were evidently sent to the Board by fax, but are not found in the Certified Tribunal Record.
[12] Although it appears that the decision in relation to Mr. Sivananthan's case was actually made in late November, 2004, on December 20, 2004, the presiding member signed a formal set of reasons cancelling the January 10, 2003 order staying Mr. Sivananthan's deportation, and quashing the removal order. The reasons observe that:
Even thus duly requested, the Minister of Citizenship and Immigration (the "respondent") did not respond to [the] August 10, 2004 letter of the IAD, regarding the appellant's compliance [with] his stay nor did they provide any adverse information regarding the appellant.
[13] It should be noted that there is no August 10, 2004 letter from the IAD to the parties in the Tribunal Record. The only notice given to the parties in relation to this matter is the October 26, 2004 letter referred to above, which indicates that the matter would be dealt with "on or about January 10, 2005".
Standard of Review
[14] The issue in this case is whether the process followed by the IAD was fair. Questions of procedural fairness are reviewed against a standard of correctness: [2003] 1 S.C.R. 539=">C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at para. 100, 2003 SCC 29">2003 SCC 29.
Analysis
[15] It is very clear that the process followed by the IAD in this case was seriously flawed. The only notice provided to the parties indicated that Mr. Sivananthan's case was to be reviewed "on or about January 10, 2005". No deadline was provided to the parties for filing their submissions. However, the Minister's submissions were sent to the Board in a timely fashion, over a month before the matter was apparently to be dealt with.
[16] These submissions contained information that was very damaging to Mr. Sivananthan's case, and would very likely have affected the decision. In this regard, it should be noted that Mr. Sivananthan does not challenge the accuracy of the information contained in the Minister's submissions, nor does he deny that he was in breach of the conditions imposed upon him by the 2003 order of the IAD.
[17] Counsel for Mr. Sivananthan argues that it is not clear that the submissions were sent to the correct number, as the fax transmittal sheet filed by the Minister shows a different fax number than the fax number that is publicly available for the IAD. There is no evidence before the Court, however, to support this argument. Moreover, the fax transmittal sheet indicates that the document was sent to the Immigration and Refugee Board. It does not appear from the record, however, that the submissions ever made it to Mr. Sivananthan's file or that they were provided to the presiding member for his consideration.
[18] In the circumstances, I am satisfied that the Minister's submissions were indeed provided to the Board in a timely fashion, and were not considered by the presiding member in reaching his decision.
[19] Moreover, it appears that the decision in Mr. Sivananthan's case was made approximately six weeks before the January 10, 2005 date referred to in the October 26, 2004 letter to the parties. In my view, a decision made in late November is not one made "on or about" January 10 of the following year. It was fundamentally unfair for the IAD to have dealt with the matter well in advance of the date provided to the parties, thereby denying them the reasonable opportunity to participate in the process.
Conclusion
[20] For these reasons, the application for judicial review is allowed.
Certification
[21] None of the parties have suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, the decision of the IAD is quashed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"Anne Mactavish"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-99-05
STYLE OF CAUSE: SOLICITOR GENERAL OF CANADA and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicants
and
SANJEEVAN SIVANANTHAN
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 13, 2005
REASONS FOR ORDER
AND ORDER: MACTAVISH, J.
DATED: SEPTEMBER 20, 2005
APPEARANCES:
Martina Karvellas FOR APPLICANTS
M. Max Chaudhary FOR RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR APPLICANTS
Deputy Attorney General of Canada
Department of Justice
Toronto Ontario
M. Max Chaudhary FOR RESPONDENT
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