Date:20010402
Docket: IMM-1859-00
Neutral Citation: 2001 FCT 276
BETWEEN:
PHUOC LUU
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
[1] Mr. Phuoc Luu (the "Applicant") seeks judicial review of a decision made by the Immigration Appeal Division ("IAD"). In its decision, dated March 3, 2000, the IAD denied a motion by the Applicant to reopen an appeal which had been deemed abandoned by the IAD on May 26, 1998.[1]
FACTS
[2] The Applicant was born in Vietnam and granted permanent residence on April 23, 1990. He was convicted on February 2, 1995 for the commission of an offence contrary to the Criminal Code. This led to an inquiry pursuant to section 27 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[3] On March 1996, the Minister issued an opinion pursuant to section 70(5) of the Act, that the Applicant is a danger to the public. The Applicant successfully challenged that opinion and it was quashed. An inquiry was held in Calgary on October 22, 1996 and the Applicant was ordered deported. On the same day, the Applicant filed a Notice of Appeal against the deportation order.
[4] The appeal was scheduled to be heard by the IAD on May 26, 1998.
[5] On May 26, 1998, then counsel for the Applicant applied for leave to withdraw on the basis that he had been unable to maintain contact with his client and had not had any communication with the Applicant for some thirteen months. The IAD granted counsel's application to withdraw and according to the transcript, waited a short period of time to see if the Applicant would appear in person. He did not and counsel for the Respondent successfully applied for an order deeming the appeal abandoned pursuant to section 76 of the Act.
[6] On January 12, 2000, the Applicant filed a Notice of Motion seeking to reopen his appeal. He was represented by counsel and submissions were made on his behalf. By a written decision dated March 3, 2000, the Appeal Division dismissed his motion to reopen on the grounds that the Applicant had failed to show that there were sufficient reasons and in the interests of justice to do so.
[7] The Applicant then brought this application for judicial review.
ISSUES
[8] The Applicant raises two issues on this application, as follows:
Did the IAD err in law, exceed jurisdiction or decline jurisdiction, or make an erroneous finding of fact, in that the IAD misunderstood or misapplied the test for reopening the Applicant's appeal?
Did the IAD err in law, exceed jurisdiction or decline jurisdiction, or make erroneous findings of fact, in that the IAD misunderstood or misapplied the evidence and arguments of the Applicant?
APPLICANT'S SUBMISSIONS
[9] The Applicant argues that the IAD misconstrued the evidence when it found that he was alleging that his former counsel had failed to advise him that the appeal against the deportation order was a different proceeding, independent of his successful attempt to quash the danger opinion.
[10] The Applicant says there was nothing on the evidence to show or suggest that he was blaming his former counsel in any way relating to his appeal before the IAD. The Applicant says that the evidence clearly shows that he misunderstood the process and did not understand that there was a separate proceeding, that is the appeal against the deportation order.
[11] The Applicant says that he thought all matters were resolved once the danger opinion was quashed. The Applicant says that because the IAD misunderstood the evidence, it reached an erroneous conclusion is not supported by the evidence. Accordingly, the decision is flawed.
[12] Next, the Applicant argues that the IAD erred in interpreting its jurisdiction by applying the wrong test. The Applicant says that the IAD erred by failing to consider the interests of justice in disposing of his motion to reopen his appeal. The Applicant says the error is apparent in the Reasons of the IAD when it said as follows:
As the applicant failed to provide a satisfactory explanation for his failure to both appear for his scheduled hearing and for delaying in taking action with respect to this appeal for well over one year after it was declared abandoned, I believe the applicant has failed to establish that his appeal ought to be reopened or that it is in the interests of justice to do so.
RESPONDENT'S SUBMISSIONS
[13] The Respondent says that the IAD correctly understood its jurisdiction and applied the right test. The Respondent argues that the IAD neither erred in its interpretation of the evidence nor misappreciated the extent of its jurisdiction. The Respondent says that the IAD considered the merits of the Applicant's appeal when it considered the sufficiency of his reasons for applying to reopen the appeal. Furthermore, the Respondent submits that the IAD correctly stated the facts as they appeared from the evidence.
ANALYSIS
[14] The operative provision upon a motion to reopen an appeal is Rule 32 of the Immigration Appeal Division Rules:
| 32. (1) Where the Appeal Division has declared an appeal to be abandoned by a party, the party may, by motion made pursuant to subrules 27(2) to (7), apply to the Appeal Division for the appeal to be reopened.
(2) A motion made by a party other than the Minister to reopen an appeal shall, where the party is not represented by counsel, include the party's address and telephone number.
(3) The Appeal Division shall grant a motion to reopen an appeal where there are sufficient reasons why the appeal should be reopened and it is in the interests of justice to do so.
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32. (1) Dans le cas où la section d'appel a conclu au désistement de l'appel d'une partie, la partie peut lui demander la réouverture de son appel par voie de requête conformément aux paragraphes 27(2) à (7).
(2) La requête en réouverture présentée par une partie, autre que le ministre, qui n'est pas représentée par un conseil doit porter l'adresse et le numéro de téléphone de celle-ci.
(3) La section d'appel fait droit à la requête en réouverture lorsqu'il y a des motifs suffisants d'agir ainsi et que l'intérêt de la justice le justifie.
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[15] This Rule was considered by Justice Evans in Handjiev v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 175 at paragraph 12 where he said as follows:
In my opinion, when determining whether the facts found constitute "sufficient reasons" for reopening an appeal, the Board is not required to be "correct" in order to avoid committing an error of law. The application of this open-textured phrase obviously requires the Board to consider and weigh all the relevant facts before it, a function that lies within its specialized jurisdiction. It is not the function of the Court on an application for judicial review to reweigh these facts and substitute its view for that of the Board on whether they amount to "sufficient reasons" to reopen. This is a decision entrusted by Parliament to the Board.
[16] In my opinion, the IAD here erred in its interpretation of the evidence. Its conclusion, that the Applicant was attributing fault to his former counsel in failing to advise him about the nature of the outstanding appeal, is not supported by the evidence before the IAD. The IAD misunderstood the facts. This is an error of law and is the basis upon which this application should be allowed.
[17] It is not necessary for me to consider whether the IAD subsequently applied the proper test since it was proceeding upon a misapprehension of the evidence.
[18] The application for judicial review is allowed. The decision of the Appeal Division is set aside and the matter is referred back for determination by a differently constituted panel. No directions will be given concerning the conduct of the new hearing.
[19] Although Counsel for the Applicant proposed a question for certification I am of the opinion that no certified question arises from this application.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
April 2, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1859-00
STYLE OF CAUSE: PHUOC LUU
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, JANUARY 18, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HENEGHAN J.
DATED: MONDAY, APRIL 2, 2001
APPEARANCES BY: Mr. Michael Crane
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: MICHAEL CRANE
Barrister & Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010402
Docket: IMM-1859-00
BETWEEN:
PHUOC LUU
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1]Order and Reasons of the IAD dated March 3, 2000, Tribunal Record, page 1
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