Date: 20120515
Docket: IMM-6377-11
Citation: 2012 FC 582
Ottawa, Ontario, May 15,
2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Applicant
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and
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CHRISTOPHER SMITH
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of a member of the Immigration Appeal Division of the Immigration and
Refugee Board (the Board), dated August 31, 2011, wherein the respondent’s stay
of removal was restored. This conclusion was based on the Board’s finding that
the consequences of subsection 68(4) of the Act no longer applied to the
respondent and therefore the order cancelling his stay and terminating his
appeal was null and void. The Board therefore reinstated the respondent’s stay
of removal with a nominal end date of February 1, 2012 and a planned
reconsideration of the stay.
[2]
The applicant requests that the Board’s decision
be set aside and the matter be referred back for redetermination by a
differently constituted panel.
Background
[3]
The
respondent, Christopher Smith, is a citizen of Jamaica. He first came to Canada in 1989 to compete in a
culinary competition. In 1990, the respondent returned to Canada on a visitor’s visa. He
obtained various extensions and work permits until his first wife successfully
sponsored him. The respondent was granted permanent resident status on March
23, 1993.
[4]
In Canada, the respondent worked
as a chef and restaurant manager. To supplement his income, he sold crack
cocaine. He was first convicted for possession of crack cocaine on March 12,
1998. On April 2, 1998, he was convicted of two counts of failing to comply
with a recognizance by selling crack cocaine to undercover police officers.
Five years later, on February 20, 2003, the respondent was convicted of two
counts of possession of crack cocaine for the purpose of trafficking and of
possession of proceeds of property obtained by crime.
[5]
On
October 29, 2003, a deportation order was issued against the respondent. This
decision was rendered on the basis that the respondent’s convictions placed him
within the scope of paragraph 36(1)(a) of the Act (serious criminality). The
respondent appealed the deportation order. On April 28, 2005, the Immigration
Appeal Division (IAD) granted a stay of the deportation order for five years
subject to specific conditions. This decision was based on the IAD’s finding
that there were sufficient humanitarian and compassionate (H&C) grounds to
warrant special relief, taking into account the respondent’s five biological
children and two stepchildren in Canada.
[6]
On
October 11, 2005, the respondent was convicted of assault, assault with a
weapon and failure to comply with a probation order. Subsequently, the
applicant filed an application asking the IAD to have the respondent’s stay
cancelled and his appeal dismissed. On June 6, 2006, the IAD found that the
respondent’s stay of removal was cancelled under subsection 68(4) of the Act by
virtue of his new conviction.
[7]
On
October 15, 2007, the respondent’s assault with a weapon conviction was
overturned. The following month, on November 13, 2007, the respondent filed an
application to reopen his appeal of the removal order. On January 26, 2008, the
IAD allowed the respondent’s application to reopen the appeal on the basis that
his conviction had been quashed and was therefore no longer valid. The
applicant sought judicial review of this decision. Application for leave was
granted on October 15, 2008. The application for judicial review commenced on
January 13, 2009. The hearing was subsequently adjourned to allow the
respondent to file an H&C application.
[8]
On
December 9, 2010, Mr. Justice Michael Kelen of the Federal Court issued a direction
indicating that the basis of the adjournment no longer existed as almost two
years had lapsed without the respondent having filed an H&C application. Mr.
Justice Kelen noted that although the Immigration and Refugee Board “clearly
did not have the jurisdiction to reopen the respondent’s appeal from his
deportation order because his conviction had been overturned”, it was clear to
both parties that an H&C application would likely have provided the respondent
with an exemption since his criminal conviction, which was the basis of his
deportation, had been overturned. The parties were directed to provide
submissions before the Court made a final decision.
[9]
On
January 7, 2011, Mr. Justice Kelen issued a decision allowing the application
for judicial review and referring the matter back for redetermination by a
different panel. Mr. Justice Kelen acknowledged the respondent’s explanation
that he had been facing criminal charges during the past two years which made
an H&C application impossible. However, Mr. Justice Kelen noted that the
Court had only adjourned the previous hearing on the expectation that the
respondent would file his H&C application within a matter of weeks. The
current circumstances indicated that it would be a further three years before
the respondent would be in a position to file an H&C application and then
only if he was acquitted of the outstanding criminal charges. Thus, the Court
proceeded with its decision allowing the application for judicial review.
[10]
On
July 15, 2011, a member of the IAD wrote to the parties asking them to address
the relevance of Nabiloo v Canada (Citizenship and Immigration), 2008 FC 125, [2008]
FCJ No 159 with respect to the opening of the respondent’s appeal.
Board’s Decision
[11]
The
Board issued its decision on August 31, 2011.
[12]
At
the outset, the Board acknowledged that there was no provision for it to reopen
the appeal. Pursuant to section 71 of the Act, the Board was only empowered to
grant a reopening if there had been a breach of natural justice on the part of
the IAD. The Board found that there was no such breach because at the time of
the termination of the respondent’s appeal, his conviction was valid.
[13]
The
Board also acknowledged the parties’ submissions on the relevance of Nabiloo
above. On the one hand, the respondent submitted that he is in a more
favourable position by virtue of his acquittal; the appellant in Nabiloo
above, only had sentence reductions. Conversely, the applicant submitted that
if the Board were to consider relaxing its procedures to allow an extension of
time as in Nabiloo above, the respondent should be required to stipulate
whether he had been convicted or charged with any further criminal offences.
[14]
The
Board noted that although Nabiloo above, was not directly on point with
the case at bar, it was nonetheless relevant in its recognition that there must
be a remedy where a statutory disqualification to appeal, that previously
existed, ends. Here, the disqualification ended when the respondent’s
conviction was overturned. The Board found that the respondent’s acquittal put
him back to the position he was in at the time of the cancellation of his stay
of removal. Therefore, the Board concluded that although the respondent’s
appeal was not being reopened under section 71 of the Act, the consequences of
subsection 68(4) no longer applied to him and the order cancelling his stay and
terminating his appeal was therefore null and void. As such, the Board restored
the respondent’s stay.
[15]
The
Board also noted the submissions made on the expiry of the five year stay of
removal on April 28, 2010. However, it held that a stay of removal does not
expire, rather, at the end of a stay, it is reviewed by an IAD member who makes
a decision to allow the appeal, dismiss it or extend the stay.
[16]
The
Board concluded that the appropriate remedy was to put the respondent back on
the stay of removal on the conditions originally specified therein with a
nominal end date of February 1, 2012. The respondent was required to file a statement
of compliance within a set deadline, to which the applicant was granted an
opportunity to respond.
Issues
[17]
The
applicant submits the following point at issue:
The Board erred in its
interpretation and application of section 71 of the Act by concluding that it
had jurisdiction to reopen the respondent’s appeal and restore the respondent’s
stay of deportation.
[18]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the Board err in
restoring the respondent’s stay of removal?
Applicant’s Written Submissions
[19]
The
applicant submits that the interpretation of the legal effect of subsection
68(4) of the Act is a question of law that warrants no deference. Issues of
jurisdiction are also reviewable on a standard of correctness.
[20]
The
applicant submits that the Board’s jurisdiction to reopen is confined to cases
where there has been a breach of natural justice. Thus, the existence of new
evidence or a change in circumstances is not sufficient to support an
application to reopen.
[21]
The
applicant submits that the Board’s reasons do not reflect the existence of a
breach of natural justice that justifies reopening the respondent’s appeal.
Thus, the applicant submits that the Board erred when it assumed jurisdiction
in reopening the respondent’s appeal. In rendering its decision, the Board
committed the same error identified by Mr. Justice Kelen in his decision dated
January 7, 2011.
[22]
The
applicant acknowledges that the result of allowing the cancellation of the stay
to stand when the criminal conviction that led to its termination has
successfully been appealed may appear illogical, unfair or constitute hardship.
However, this does not invalidate a properly tendered decision. Nor does it
entitle the Board to exceed its jurisdiction by reopening an appeal. The
applicant submits that the Board validly lost jurisdiction at the time of the
conviction. Thus, the Board erred by reopening the appeal and restoring the
respondent’s stay of removal.
Respondent’s Written Submissions
[23]
The
respondent made oral submissions at the hearing.
Analysis and Decision
[24]
Issue
1
What is the appropriate standard
of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue before the
court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[25]
It
is well established that a question of the IAD’s jurisdiction is a question of
law that is reviewable on a correctness standard (see Nabiloo above, at
paragraph 9). Similarly, the interpretation of the legal effect of provisions
of the Act is a question of law that warrants no deference (see Nazifpour v Canada (Minister of
Citizenship and Immigration), 2007 FCA 35, [2007] FCJ No 179 at paragraph
21). No deference is owed to the Board on these issues (see Dunsmuir
above, at paragraph 50).
[26]
Issue
2
Did the Board err in restoring the
respondent’s stay of removal?
In its decision, the Board correctly
acknowledged that it did not have the jurisdiction to reopen the respondent’s
appeal under section 71 of the Act as, at the time of the termination of his
appeal, his conviction was valid and there was no breach in natural justice.
However, the Board then found that the respondent’s statutory disqualification
ended when his conviction was overturned. On this basis, the Board concluded
that the consequences of subsection 68(4) no longer applied and that the order
cancelling his stay and terminating his appeal was null and void. Thus, the
Board held that the appropriate remedy was to put the respondent back on the
original stay of removal with a revised end day of February 1, 2012. The Board
erred in this part of its analysis.
[27]
Under
the current statutory framework, the Board has very limited jurisdiction in an
application to reopen an appeal. Section 71 of the Act clearly limits the
Board’s jurisdiction to instances where there have been breaches of natural
justice. Here, although the Board explicitly stated that it was not reopening the
appeal, the effect of its decision was in fact exactly that as it had no other
jurisdiction, including any equitable powers, to grant the remedy it did.
[28]
A
somewhat similar situation arose in Almrei v Canada (Minister of
Citizenship and Immigration), 2011 FC 554, [2011] FCJ No 781. There, a
security certificate that had been issued against the applicant was
subsequently quashed. At issue was whether the decision denying the applicant’s
permanent residence application could stand given that the underlying evidence,
namely the security certificate, had been quashed. Madam Justice Judith Snider concluded
that although the decision was not a nullity or void, it could not be relied on
to remove the applicant from Canada (see Almrei above, at paragraph 46):
In
it appears that, while the issue is not free from doubt (Nagra, above),
the better legal view is that a decision taken before a fundamental change in
evidence is not a nullity or void ab inititio. However, on a
going-forward basis, any such decision could not be enforced or otherwise acted
or relied on. In this case, the Officer's decision is not a nullity. What I
believe, however, is that, based on decisions such as Kalicharan, the
Minister could not rely on that particular decision to take further steps to
remove the Applicant from Canada. [emphasis added]
[29]
The
older case of Kalicharan v Canada (Minister of Manpower and Immigration), [1976] FCJ No 21 (TD)
is also pertinent. There, the applicant had been ordered deported due to his
criminal convictions. He was subsequently granted a discharge. The Court
explained that the granting of a conditional discharge by the Court of Appeal
was “not merely new evidence” but rather a basis for finding that the
deportation order no longer existed (at paragraph 4). In Almrei above, Madam
Justice Snider noted that Kalicharan above, “seems to stand for the
proposition that a deportation order or other instrument seeking to remove the
Applicant from Canada could not be enforced – nothing more” (at paragraph 38).
[30]
In this case, the
Board reinstated the respondent’s stay of deportation because the underlying
decision, namely the removal of the stay, was based on a conviction that had
subsequently been overturned. However, as the Board and both parties
acknowledged that there had been no breach of natural justice, the Board had no
jurisdiction to reinstate the respondent’s stay. The Board also erred when it
characterized the underlying decision as null and void. Rather, as stated by
Madam Justice Snider, the
effect was that “the Minister could not rely on that particular decision to
take further steps to remove the Applicant from Canada” (see Almrei above, at paragraph
46).
[31]
Thus,
the practical effect of the overturned conviction can only be that the
applicant cannot rely on the removal of the stay of deportation in seeking to
remove the respondent from Canada. At the hearing, applicant’s counsel
admitted that it was unlikely that the respondent will be removed. This
understanding is in accordance with existing jurisprudence.
[32]
I
would therefore allow this judicial review and set aside the Board’s decision.
The matter is referred back for redetermination by a differently constituted
panel with a direction that the new panel render a decision in accordance with
its limited jurisdiction under section 71 of the Act.
[33]
The
respondent proposed the following question for my consideration for
certification as a serious question of general importance:
What is the impact of a criminal
conviction that is quashed and a not guilty plea substituted therefore when
that conviction was the basis for a prior finding by the IAD that said
conviction could by operation of law, result in a quashing of a stay of removal
order due to criminality?
[34]
I
am not prepared to certify this question. In my opinion, the issue of the
jurisdiction of the IAD to reopen an appeal pursuant to section 71 of the Act
has already been dealt with by the Federal Court of Appeal in Nazifpour above. The IAD can only
reopen an appeal if it has failed to observe a principle of natural justice as
dictated by section 71 of the Act. The IAD has no jurisdiction to consider the
effect of the reversal of a conviction on a stay of removal order validly
issued. As such, I do not accept the proposed question as a serious question of
general importance.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The application for
judicial review is allowed and the decision of the IAD is set aside and the
matter is referred to a different panel of the Board for redetermination.
2. No serious question
of general importance will be certified.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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36. (1) A
permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by a maximum term of imprisonment 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;
(b) having
been convicted of an offence outside Canada that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years; or
(c) committing
an act outside Canada that is an offence in the place where
it was committed and that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years.
50. A
removal order is stayed
…
(c) for
the duration of a stay imposed by the Immigration Appeal Division or any
other court of competent jurisdiction;
68. (1) To
stay a removal order, the Immigration Appeal Division must be 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.
(2) Where
the Immigration Appeal Division stays the removal order
(a) it
shall impose any condition that is prescribed and may impose any condition
that it considers necessary;
(b) all
conditions imposed by the Immigration Division are cancelled;
(c) it
may vary or cancel any non-prescribed condition imposed under paragraph (a);
and
(d) it may
cancel the stay, on application or on its own initiative.
(3) If
the Immigration Appeal Division has stayed a removal order, it may at any
time, on application or on its own initiative, reconsider the appeal under
this Division.
(4) If
the Immigration Appeal Division has stayed a removal order against a
permanent resident or a foreign national who was found inadmissible on
grounds of serious criminality or criminality, and they are convicted of
another offence referred to in subsection 36(1), the stay is cancelled by
operation of law and the appeal is terminated.
71. The
Immigration Appeal Division, on application by a foreign national who has not
left Canada under a removal order, may reopen an
appeal if it is satisfied that it failed to observe a principle of natural
justice.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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36. (1) Emportent
interdiction de territoire pour grande criminalité les faits suivants :
a) être
déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé;
b) être
déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c) commettre,
à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait
une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans.
50. Il y
a sursis de la mesure de renvoi dans les cas suivants :
…
c) pour
la durée prévue par la Section d’appel de l’immigration ou toute autre
juridiction compétente;
68. (1) Il
est sursis à la mesure de renvoi sur preuve qu’il y a — compte tenu de
l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre
humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de
mesures spéciales.
(2) La
section impose les conditions prévues par règlement et celles qu’elle estime
indiquées, celles imposées par la Section de l’immigration étant alors
annulées; les conditions non réglementaires peuvent être modifiées ou levées;
le sursis est révocable d’office ou sur demande.
(3) Par
la suite, l’appel peut, sur demande ou d’office, être repris et il en est
disposé au titre de la présente section.
(4) Le
sursis de la mesure de renvoi pour interdiction de territoire pour grande
criminalité ou criminalité est révoqué de plein droit si le résident
permanent ou l’étranger est reconnu coupable d’une autre infraction
mentionnée au paragraphe 36(1), l’appel étant dès lors classé.
71. L’étranger
qui n’a pas quitté le Canada à la suite de la mesure de renvoi peut
demander la réouverture de l’appel sur preuve de manquement à un principe de
justice naturelle.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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