Date:
20121203
Docket:
IMM-2411-12
Citation:
2012 FC 1410
Ottawa, Ontario,
December 3, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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PANCHALINGAM NAGALINGAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision rendered
by the Immigration and Refugee Board’s Immigration Appeal Division (the IAD) on
February 21, 2012, in which it held that it did not have jurisdiction to hear
Mr. Nagalingam’s appeal because the applicant has been found inadmissible on
grounds of organized criminality.
Factual
Background
[2]
Mr.
Panchalingam Nagalingam (the applicant) is a citizen of Sri Lanka and a Tamil. He arrived in Canada in August 1994. He was found to be a Convention
Refugee on March 2, 1995 and became a permanent resident on March 13, 1997.
[3]
Between
1999 and 2001, the applicant was convicted of assault, failure to comply with a
recognizance and mischief. Subsequently, the applicant was found to be
inadmissible for organized criminality under paragraph 37(1)(a) of the
Act because of his membership to the A.K. Kannan Tamil gang. A deportation
order was issued against him on May 28, 2003, by virtue of which he also lost
his permanent resident status. The Federal Court dismissed his application for
judicial review of the decision on inadmissibility (Nagalingam v Canada (Minister of Citizenship and Immigration), 2004 FC 1397, 134 ACWS (3d) 489).
[4]
Because
the applicant had been found to be a Convention refugee, the Minister issued a
danger opinion under paragraph 115(2)(b) of the Act on October 4, 2005. The
applicant was removed from Canada on December 5, 2005. On April 24, 2008, the
Federal Court of Appeal allowed the judicial review of the danger opinion and
it was remitted back for re-determination (Nagalingam v Canada (Minister of Citizenship and Immigration), 2008 FCA 153, [2009] 2 FCR 52). The
applicant made a request to the Minister to allow him to return to Canada. The applicant was returned to Canada on February 24, 2009 on a Temporary Resident Permit.
Upon his return, he was initially detained but eventually released on strict
terms and conditions.
[5]
The
Minister initiated a reconsideration of the paragraph 115(2)(b) danger
opinion prior to the applicant’s return to the country. When another danger
opinion was issued on February 23, 2011, the applicant filed two (2) applications
for leave and judicial review: the first application challenged the 2011 danger
opinion, and the second application sought a declaration that the 2003 removal
order was spent and of no remaining legal force.
[6]
Justice
Russell of the Federal Court heard both applications in October 2011 and
allowed the judicial review of the danger opinion on a breach in procedural
fairness because the applicant was not given the opportunity to cross-examine a
detective who provided evidence (Nagalingam v Canada (Minister of
Citizenship and Immigration), 2012 FC 176, 253 CRR (2d) 310 [Nagalingam,
2012 FC 176]). Justice Russell also allowed, in part, the judicial review of
the 2003 removal order (Nagalingam v Canada (Minister of Public Safety and
Emergency Preparedness), 2012 FC 362, 6 Imm LR (4th) 323 [Nagalingam,
2012 FC 362]). Justice Russell held that “the 2003 [Deportation] Order …,
although valid when made, has now been executed and its force is spent. Hence,
it cannot now be used as the basis of any future deportation of the Applicant
and the Court prohibits the Respondent from using the 2003 Order to remove the
Applicant from Canada”.
[7]
The
Immigration Officer issued a subsection 44(1) report stating that the applicant
is inadmissible under paragraph 36(2)(a) of the Act for reasons of criminality,
on the basis of the 2000-2001 convictions. The applicant was served with this
report on September 9, 2011. Following that report, a new deportation order was
issued against the applicant on September 16, 2011. The applicant is currently
seeking judicial review of the subsection 44(1) report in a separate proceeding
before this Court (IMM-6450-11). It is also this new deportation order that
would have been the subject of the applicant’s appeal to the IAD, if the
Division had concluded to having jurisdiction.
[8]
In
a decision dated February 21, 2012, the IAD determined that it did not have
jurisdiction under subsection 64(1) of the Act to hear the applicant’s appeal
because the applicant has been found inadmissible on grounds of organized
criminality. The IAD’s decision is the one under review in the present
application.
The impugned
decision
[9]
The
IAD concluded that it did not have jurisdiction to hear an appeal by the
applicant pursuant to subsection 64(1) of the Act because the applicant was
found inadmissible for organized criminality, which is all that subsection
64(1) of the Act requires, and thus dismissed the applicant’s appeal of the
deportation order issued against him.
Issue
[10]
This
application raises the following issue: Did the IAD member err in law in
finding that it lacked jurisdiction to hear the applicant’s appeal?
Legislative
Provisions
[11]
The
relevant legislative provisions in this case are set out in Annex to this
judgment.
Standard of
review
[12]
This
application raises a question of true jurisdiction. The standard of review for
such questions is that of correctness (Dunsmuir v New Brunswick, 2008
SCC 9 at paras 50 and 59, [2008] 1 S.C.R. 190; Nabiloo v Canada (Minister of Citizenship and Immigration), 2008 FC 125 at para 9, 323 FTR 258 [Nabiloo]).
Analysis
[13]
The
applicant submits that the IAD member erred in finding that the IAD did not
have jurisdiction to hear his appeal. The applicant contends that the 2003
order continues to operate and hence does not deprive the IAD of its
jurisdiction.
[14]
From
the outset, the Court recalls the objectives of the Act as outlined by the Supreme
Court of Canada in Medovarski v Canada (Minister of Citizenship and
Immigration), 2005 SCC 51 at para 10, [2005] 2 S.C.R. 539:
[10] The objectives as expressed in the IRPA
indicate an intent to prioritize security. This objective is given effect by
preventing the entry of applicants with criminal records, by removing
applicants with such records from Canada, and by emphasizing the obligation of
permanent residents to behave lawfully while in Canada. This marks a change
from the focus in the predecessor statute, which emphasized the successful
integration of applicants more than security: …. Viewed collectively, the
objectives of the IRPA and its provisions concerning permanent
residents, communicate a strong desire to treat criminals and security
threats less leniently than under the former Act.
[Emphasis
added.]
[15]
More
particularly, subsection 64(1) of the Act is not formulated as to prohibit the
appeals of deportation orders pertaining to security, human or
international rights violations, or serious or organized criminality – it
prohibits the individual who is inadmissible on one of these grounds from
requesting an appeal at the IAD. The wording is clear, unambiguous and
consistent in both official languages. If Parliament had intended the lack of
jurisdiction to apply to orders instead of individuals, it could easily have
achieved this goal with different language. As it now stands, the prohibition
under subsection 64(1) is associated with the individual, not the order:
No appeal for
inadmissibility
64. (1) No appeal may
be made to the Immigration Appeal Division by a foreign national …
or by a permanent resident if the foreign national or permanent resident
has been found to be inadmissible on grounds of security, violating
human or international rights, serious criminality or organized criminality.
Restriction du droit
d’appel
64. (1) L’appel ne peut être
interjeté par le résident permanent ou l’étranger qui est interdit de
territoire pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux, grande criminalité ou criminalité organisée […].
[Emphasis
added.]
[16]
In
Kang v Canada (Minister of Citizenship and Immigration), 2005 FC 297,
Justice Mactavish observed the following at para 25:
[25] As the Federal Court of Appeal noted in
Medovarski, in enacting IRPA, Parliament re-balanced the interests of public
safety and individual rights by broadening the categories of persons who
may be removed without an appeal to the IAD. To this end, section 64 is
designed to limit the opportunities for admission to Canada for those
involved in serious criminality, human rights violations or activities giving
rise to national security concerns.
[Emphasis added.]
[17]
It
therefore follows that in light of subsection 64(1) of the Act, it is not the
2003 deportation order that operates to deprive the applicant of an appeal of
another deportation order eight (8) years later, but the finding of inadmissibility.
Hence, the fact that the applicant was deported and that the 2003 deportation
order is spent does not erase the Immigration and Refugee Board’s findings that
made him inadmissible in the first place. This interpretation and approach is
consistent with other decisions of the Federal Court (Holway v Canada (Minister of Citizenship and Immigration) 2005 FC 1261, 279 FTR 277; Thevasagayampillai
v Canada (Minister of Citizenship and Immigration), 2005 FC 596, 280 FTR
149; Kang, above; Nabiloo, above).
[18]
With
respect to the mootness issue, the applicant submits that his appeal to the IAD
would not be moot because the initial deportation order from 2003 is
spent and has no remaining legal force (Nagalingam, 2012 FC 362, above).
Therefore, the outcome of the appeal would be determinative of whether or not
the applicant can be deported. As such, the applicant submits that the IAD has
jurisdiction to hear his appeal, because it is not moot (Jamil v Canada (Minister of Citizenship and Immigration), 2005 FC 758, 277 FTR 163). However,
and the Court agrees with the respondent, the fact that the potential mootness
of removal orders was discussed by Justice Mactavish in Jamil cannot
support the applicant’s contention that this amounts to the legal reasoning behind
the IAD finding that it did not have jurisdiction.
[19]
In
summary, in the case at bar, the applicant’s argument with respect to the deportation
order is irrelevant to the application of subsection 64(1) of the Act. As noted
above, the provision does not preclude an individual from appealing to the IAD
because a deportation order has been issued; rather, it states that no
applicant found inadmissible on grounds of organized criminality (among others)
can appeal to the IAD. It is the finding of inadmissibility that operates to
preclude an appeal at the IAD, not the existence of a deportation order. Thus,
the Court cannot agree with the applicant that the inadmissibility finding
against the applicant was extinguished by his removal (i.e. the execution of
the 2003 deportation order). The admissibility finding remained intact and was
not “erased” or “nullified” by the execution of the 2003 deportation order.
[20]
Finally,
the applicant’s argument to the effect that the IAD failed to provide adequate
reasons is without merit.
[21]
For
all of the above reasons, the Court finds that the IAD was correct in finding
that it did not have jurisdiction in this case. For this reason, the
application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
There
are no questions for certification;
3.
A
copy of the Reasons for Judgment and Judgment is to be placed in file
IMM-6450-11.
“Richard Boivin”
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