Date: 20101025
Docket: IMM-1396-10
Citation: 2010 FC 1046
BETWEEN:
ZEF SHPATI
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
Dockets: IMM-6518-09
IMM-6522-09
AND BETWEEN:
ZEF SHPATI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1]
Zef
Shpati almost had it all. He spent the first 25 years of his life interned in a
labour camp in Albania. In 1991 he escaped to what was then Yugoslavia. The United
Nations High Commissioner for Refugees named him as a person of concern. He was
issued travel documents to the United States. He settled in Michigan with his
wife and children and became a permanent resident of that country. His parents
and brother came to live in the same neighbourhood.
[2]
Years
later he did a very stupid thing. He used his wife’s Permanent Resident Card
(Green Card) to bring his brother’s wife into the United States. He was
caught out and deported back to Albania in 2005. He promptly
turned around and came to Canada where he unsuccessfully applied for
refugee status.
[3]
He
then sought a pre-removal risk assessment (PRRA) and asked for permission to
apply for permanent resident status from within Canada on
humanitarian and compassionate grounds (H&C). His requests were denied. At
that point he was ready to be removed from Canada. Section 48
of the Immigration and Refugee Protection Act (IRPA) requires that such
a foreign national leave Canada immediately. If not, the removal order
“must be enforced as soon as is reasonably practicable.”
[4]
He
promptly filed applications in this Court for leave and for judicial review of
both decisions. While those applications for leave were pending, an enforcement
officer with the Canada Border Services Agency sought to remove him to Albania. Mr. Shpati
requested that his removal be deferred pending the outcome of the two
applications. The officer refused. This gave rise to a third application to
this Court, one for leave and for judicial review of that decision. He also
moved this Court for a stay of his removal pending the outcome of the three
judicial reviews.
[5]
In
March of this year I granted a stay pending the outcome of the application for
leave and for judicial review of the decision of the enforcement officer not to
defer. I dismissed the motions in the PRRA and H&C applications as they
were then moot. My reasons are reported in Shpati v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 367.
[6]
Thereafter,
I granted leave in all three applications. The judicial reviews were heard
together.
THE STAY OF REMOVAL
[7]
The
reasons I granted a stay of removal in the application for leave and for
judicial review of the enforcement officer’s decision not to defer are fully
set out in my earlier decision. Suffice it to say that the officer’s opinion
that if Mr. Shpati succeeded in his PRRA he would be able to return to Canada
raised a serious issue in that it did not take into account the decision of the
Federal Court of Appeal in Perez v. Canada (Minister of Citizenship and
Immigration), 2009 FCA 171, 82 Imm. L.R. (3d) 167. That case stands
for the proposition that only those physically in Canada are entitled
to a PRRA. Even if one is removed from Canada
involuntarily, the PRRA still becomes moot. The irreparable harm was that the
officer assessed the risk Mr. Shpati might face on return to Albania, an
assessment which he was not qualified to carry out. It followed that the
balance of convenience favoured Mr. Shpati. The inconvenience to the Minister
is that if Mr. Shpati is not ultimately successful in either his PRRA or
H&C application he will remain for a short time beyond his normal removal
date. This hardly compares to risk to Mr. Shpati’s life and limb.
LEAVE TO JUDICIALLY REVIEW
[8]
One
does not have an automatic right to have a decision under IRPA judicially
reviewed. Section 72 of the Act provides that leave must first be obtained and,
unless the judge otherwise directs, the application shall be disposed of
“without delay and in a summary way.” The practice is such that the decision is
made without a hearing and without providing reasons, whether the decision be
to grant or to deny leave.
[9]
Leave
is to be given if there is a fairly arguable case, which certainly is a
standard less than that of the balance of probabilities. The leading case is
that of the Federal Court of Appeal in Bains v. Minister of Employment and
Immigration (1990), 109 N.R. 239, 47 Admin. L.R. 317. I endeavoured to set
out my understanding of the process in Hinton v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1007, 333 F.T.R. 288.
[10]
In
order to give an applicant a fair opportunity to make his or her case and the
respondent, usually the Minister, a fair opportunity to reply, the Immigration
and Refugee Protection Rules of the Federal Courts set out a schedule for
the filing of affidavits and the filing of written memoranda of fact and law.
It is noteworthy that unless otherwise directed, affiants are not to be
cross-examined before leave is granted.
[11]
Once
leave is given, the hearing must take place within 90 days. The typical order
granting leave, as do the orders in these cases, requires the underlying
tribunal to provide copies of its record to the parties and to the Court,
contemplates that further affidavits may be filed by both the applicant and the
respondent, that affiants may be cross-examined and that the applicant and
respondent may file further memoranda of argument.
JUDICIAL REVIEW OF THE
PRRA
[12]
Mr.
Shpati’s refugee claim had been dismissed as country conditions had certainly
changed in Albania in the 15
years since he had left. His credibility was suspect in that it was thought
that he attempted to embellish a land dispute involving his family. It was
found that state protection and an internal flight alternative were available.
[13]
The
tri-partite test used to determine whether an interlocutory injunction or a
stay of proceedings should be granted has no application in the judicial review
of the PRRA decision, and for that matter of the H&C decision and the
refusal to grant an administrative deferral. The question is whether the
decision maker erred in law or made an unreasonable finding of fact, either or
both of which led to an unreasonable decision. In light of the Supreme Court’s
holding in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, issues of law are usually assessed on the standard of correctness,
while issues of fact and mixed questions of fact and law are assessed on a
reasonableness standard. Although some decision makers have been accorded
deference in the interpretation of their home or closely related statutes, that
has never been the case with respect to those administering IRPA.
[14]
The
PRRA is limited to new evidence, meaning, in accordance with section 113 of
IRPA, evidence that “arose after the rejection or was not reasonably available,
or that the applicant could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection.” This new
evidence must be evidence which gives rise to a well-founded fear of
persecution within the meaning of section 96 of IRPA or to a danger of torture
or to a risk to life or to a risk of cruel and unusual treatment or punishment
in accordance with section 97.
[15]
Mr.
Shpati, at first glance, arguably presented new evidence in the form of letters
that the ousted communists were still powerful and still looking to do him
harm. Reference was also made to an assassination.
[16]
However,
having now had benefit of full argument and the opportunity to reflect, I am
satisfied on the balance of probabilities that the officer’s decision was
reasonable and should stand. The information provided was extremely vague. The
officer was justified in giving little weight to the documents and in
considering that Mr. Shpati’s allegations were speculative. He had not
successfully rebutted the presumption of state protection with new evidence.
JUDICIAL REVIEW OF THE
H&C APPLICATION
[17]
The
normal rule is that a person must apply for a permanent resident visa from
outside Canada. However
section 25 of IRPA, as it was at the time, provides that the Minister may
examine the circumstances of a foreign national who is inadmissible or who does
not meet the other requirements of the Act and grant him or her permanent
resident status, or an exemption from any other applicable criteria, if of the
opinion that such is justified by H&C considerations “taking into account
the best interests of a child directly affected, or by public policy
considerations.”
[18]
The
decision maker is called upon to balance the applicant’s establishment in
Canada against his life in his homeland, coupled with a prediction as to
whether an application for permanent resident status from outside Canada, which is
the rule, would constitute unusual and undeserved or disproportionate hardship.
Even if concerns of persecution and risk do not satisfy sections 96 and 97 of
IRPA, they may still be relevant in an H&C application with risk
allegations (Hinzman v. Canada (Minister of Citizenship and Immigration),
2010 FCA 177, 321 D.L.R. (4th) 111).
[19]
I
find the officer’s decision (not the same one who decided the PRRA) to be, in
the language of section 18.1 of the Federal Courts Act, “perverse or capricious.”
[20]
During
the five years Mr. Shpati has been in Canada, and even before that
when he attempted to enter Canada as a visitor in 2001, his story has been
consistent and accepted by every decision maker other than the H&C officer.
[21]
Mr.
Shpati’s wife is also Albanian. However she and their three children are now
American citizens. His parents, and interestingly enough his brother and
smuggled sister-in-law, live near her. Mr. Shpati is the sole support of his
wife and children. A river, the Detroit River, runs through
their lives. They live 30 kilometres apart. The family comes over from Canton
Township,
Michigan, on weekends and holidays and stays with him in Windsor. He is
constantly in communication with them. Indeed, the telephone bill produced
suggests two telephone calls a day.
[22]
The
officer found that he had not submitted documentation to support the
proposition that he had been a permanent resident of the United
States.
However, a copy of his Permanent Resident Card was already on file. She also
concluded that there was no evidence that his wife and children were even
permanent residents of the United States, much less citizens,
and that there was no evidence that his family had visited him in Canada on a regular
basis. She was not satisfied that relocating and resettling back in Albania would have a
significant negative impact on the children or the family as a whole that would
amount to unusual and undeserved or disproportionate hardship.
[23]
A
number of statements as to Mr. Shpati’s situation are to be found in lawyers’
letters going back to 2006. It has been held in Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, 74 Imm. L.R. (3d) 306, that
there are instances in which statements from counsel may be considered as
evidence. In this case in addition to statements from counsel there were others
of more recent vintage from an immigration consultant. Given that Mr. Shpati’s
family situation had always been accepted without question, he should have been
informed that the officer wanted more particulars. There is no pleasing some
people, and what satisfies some may not satisfy others. Previous acceptance of
his story led Mr. Shpati’s advisors to naturally assume it would be accepted
again. This is not a case of insufficient evidence. This is a case of
credibility. Indeed, if the officer was concerned with Mr. Shpati’s
credibility, she should have conducted a hearing as prescribed under section
167 of the Immigration and Refugee Protection Regulations.
[24]
Given
how important this decision was to Mr. Shpati, and to his wife and children,
and considering the public policy of family reunification, it was completely
inappropriate for the officer to choose not to believe. If she had concerns,
natural justice dictates that she should have expressed them and given him an
opportunity to address them. Mr. Shpati currently has a good job in Windsor. No analysis
was done of the employment situation in Albania, the gross
domestic product of that country as compared to Canada and the extent to which,
while living in Albania, he would be able to support his family.
[25]
If
the officer doubted that Mr. Shpati’s wife was also a Convention refugee
reluctant to return to Albania, that doubt should have
been raised, so it could have been answered.
[26]
The
officer does not even suggest that an application by Mr. Shpati from outside Canada for
permanent residence would be successful. At present, we have a situation
comparable to many who commute between their work and their home on a weekly
basis. This banishment to Albania certainly did not have
the best interests of the children in mind.
[27]
Childhood
does not last forever. In Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, Madam Justice L’Heureux-Dubé noted at
paragraph 15 that H&C decisions affect the future of individuals’ lives in
a fundamental manner even if only separated from one parent. She added at
paragraph 66 that Parliament placed high value on keeping families together.
The river that runs through the Shpatis’ lives means that their situation is
far from perfect, but it is far better than the alternative. I find the
decision unreasonable.
[28]
Although
I have primarily focused on Mr. Shpati’s situation in Canada, with his
dependent wife and children near by, but able to visit him regularly, the
officer also listed Mr. Shpati’s concerns that he would suffer great emotional
and psychological hardship if required to return to Albania. She simply
concluded that given his employment record he would be able to re-establish
himself in Albania. The fact is
that he was never established in Albania. There was absolutely
no analysis done as to whether a return to a country from which he escaped
because he had lived his entire life there in a labour camp constituted unusual
and underserved or disproportionate hardship. No consideration was given of the
impact of returning to a place where he changed his name to hide his Catholic
identity. A statement of fact coupled with a conclusion, but without an
analysis, does not constitute reasons and is in breach of procedural fairness (R.
v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and North v. West Region
Child and Family Services Inc., 2007 FCA 96, 362 N.R. 83).
THE JUDICIAL REVIEW OF
THE REFUSAL TO DEFER
[29]
The
concern I had that Mr. Shpati was about to be sent by an officer, who had no
training in these matters, to a place where he might suffer irreparable harm
has now been dissipated. Had the officer deferred to the judicial process, Mr.
Shpati would be in exactly the same position in which he presently finds
himself. The judicial review of his PRRA was dismissed. The judicial review of
the H&C decision has been granted. The interlocutory stay I granted has now
been spent. He is entitled to a redetermination of his application for
permanent residence from within Canada.
[30]
An
H&C application does not automatically give rise to an administrative stay
pending the outcome of what, in this case, will be a de novo review. The
Canada Border Service Agency could, notwithstanding that judicial review has
been granted, again take the position it is “reasonably practicable” within the
meaning of section 48 of IRPA to remove Mr. Shpati now. Should Mr. Shpati
be ultimately successful in the reconsideration of his H&C application,
even if removed now, he would, as the jurisprudence presently stands, be
permitted to return (Shchelkanov v. Canada (Minister of Employment and Immigration) (1994), 76
F.T.R. 151, and Selliah v. Canada (Minister of Citizenship and Immigration),
2004 FCA 261).
[31]
The question which naturally rises is whether this particular
judicial review has now become moot in light of the fact that the judicial
review of the PRRA has been dismissed. Certainly there is no point to the usual
remedy of sending the matter back to another enforcement officer for a fresh
determination. However it does not follow that the judicial review itself has
become moot. One of the remedies open to the Court under section 18.1 of the Federal
Courts Act is to declare a decision, order, act or proceeding to be
invalid, and to set it aside, without ordering more. There is still a live
controversy between the parties. Mr. Shpati is still removal ready but wishes
to remain in Canada pending his H&C redetermination (Baron v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FCA 81, 309
D.L.R. (4th) 411).
[32]
My
concern with respect to the PRRA was that, as I understand it, the effect of
the decision of the Federal Court of Appeal in Perez, above, is such
that if removed Mr. Shpati loses any right he would have had to return, unless
the Court decides to hear a matter which has become moot. Although it is open
to the Minister to grant a temporary stay while an H&C application is being
considered, there is no indication as yet that that will be done while Mr.
Shpati’s case is being reconsidered (Immigration and Refugee Protection
Regulations, section 233).
[33]
Faced
with a motion for a stay presented on an urgent basis, a motions judge rarely
has an opportunity to consider the merits of the case in a meaningful way,
particularly when it comes to disputed issues of fact. The Supreme Court does
not expect a motions judge to be in position to make such crucial findings (Manitoba
(Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987]
1 S.C.R. 110, and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311).
Furthermore, the file at the time the motion is heard is incomplete. I am
guided by the decision of Mr. Justice Pelletier in Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 682, where he
said at paragraph 45:
The
order whose deferral is in issue is a mandatory order which the Minister is
bound by law to execute. The exercise of deferral requires justification for
failing to obey a positive obligation imposed by statute. That justification
must be found in the statute or in some other legal obligation imposed on the
Minister which is of sufficient importance to relieve the Minister from
compliance with section 48 of the Act. In considering the duty
imposed and duty to comply with section 48, the availability of an alternate
remedy, such as a right of return, should weigh heavily in the balance against
deferral since it points to a means by which the applicant can be made whole
without the necessity of non-compliance with a statutory obligation. For that
reason, I would be inclined to the view that, absent special considerations, an
H & C application which is not based upon a threat to personal safety would
not justify deferral because there is a remedy other than failing to comply
with a positive statutory obligation.
[My
Emphasis.]
[34]
In
this case, unlike Wang, Mr. Shpati’s H&C application also raised a
threat to personal safety. Although it was determined in his refugee claim and
in his PRRA that he did not have a well-founded fear of persecution and was not
a person in need of Canada’s protection because of a danger of torture, a risk
to life or a risk of cruel and unusual treatment or punishment within the
meaning of sections 96 and 97 of IRPA, the same elements may well constitute
unusual and underserved or disproportionate hardship.
[35]
This case also differs from Wang in that in Wang
the request to the enforcement officer was to defer until the H&C decision
was rendered. This naturally brought forth the requirement that the judge
considering the motion for the stay take a close look at the merits since the
interlocutory motion, if granted, would in effect decide the merits of the
matter. In this case the PRRA and H&C have already been decided. Thus
the request was for a much shorter deferral – just until such time as the
application for leave was decided, and if given, just until the judicial review
was decided.
[36]
In
the circumstances I do not consider the matter moot. The implications of Perez,
above, have given rise to considerable concern and to uneven treatment of stay
motions. Stays have been granted based on the implications of Perez. Stays
have been refused as Shpati has been distinguished on its facts. Stays
have been refused with no reference whatsoever to Perez or to Shpati.
[37]
Stays
based on concerns similar to those I expressed in Shpati were granted by
Mr. Justice Phelan in Dhurmu v. Minister of Citizenship and Immigration,
IMM-1610-10, and in Dhurmu v. Minister of Public Safety and Emergency
Preparedness, IMM-1759-10. Mr. Justice Hughes did likewise in Gjokaj v.
Minister of Citizenship and Immigration and Gjokaj v. Minister of Public
Safety and Emergency Preparedness, IMM-1726-10 and IMM-2002-10.
[38]
Shpati
was
distinguished by Mr. Justice Mosley in Sansores v. Minister of Citizenship
and Immigration, IMM-2532-10, on the grounds that the enforcement
officer did not attempt to assess risk (which, as I held at paragraph 43 of Sphati,
was clearly outside the discretion provided by section 48 of IRPA). Mr. Justice
de Montigny also refused to grant a stay in Cui v. Minister of Citizenship
and Immigration, IMM-4159-10, and in Cui v. Minister of Public
Safety and Emergency Preparedness, IMM-4206-10. He pointed out that Shpati
was circumscribed by the particular facts underlying it.
[39]
In
Therqaj v. Minister of Citizenship and Immigration, IMM-3598-10, Mr.
Justice Zinn referred to Shpati but did not accept that the moot
judicial review application of a negative PRRA decision automatically results
in irreparable harm.
[40]
Finally
in Karthikeyan v. Minister of Citizenship and Immigration, IMM-1602-10,
and in Idyamat v. Minister of Citizenship and Immigration, IMM-2740-10,
Justices Crampton and Boivin dismissed motions for stays. The speaking orders
do not indicate one way or another whether they were referred to Perez and
to Shpati.
[41]
It
seems to me that this Court, counsel and those who administer IRPA would
benefit from the wisdom of the Federal Court of Appeal in these matters.
[42]
Building
on what I said earlier in the first Shpati, both parties took issue with
paragraph 45 thereof which reads:
Although an application for
leave and for judicial review of a negative PRRA does not automatically result
in a stay, I find it difficult to accept that Parliament intended that it was
“reasonably practicable,” for an enforcement officer, who is not trained in
these matters, to deprive an applicant of the very recourse Parliament had
given him.
I remain strongly of that view, but
emphasize that Perez did not deal with a refusal by an enforcement
officer to defer. Perez dealt with a decision of this Court not to grant
a stay.
[43]
Mr.
Shpati suggests, based on Wang, above, and Baron, above,
that the enforcement officer has to consider if the underlying applications for
judicial review of negative PRRA and H&C decisions, with risk allegations,
were made in good faith, and in a timely fashion. If so, an administrative
deferral should be granted as the decision whether or not to grant leave would
come down in the next few months. The Minister notes, however, and rightly in
my view, that a timely application for leave and for judicial review when a
person is already removal ready does not automatically result in a stay.
[44]
Both
parties point out, however, that circumstances could change after a negative
PRRA, or a negative H&C decision, which might give rise to fresh
administrative applications. In such instances the H&C and PRRA officers
seized of these new applications would not be in position to make a quick
decision before the scheduled removal and so there would be no underlying
decision upon which a stay of removal could be granted or refused by this
Court; unless the enforcement officer was asked to defer the removal and
refused. I agree with that proposition and believe I covered it in paragraph 47
of my earlier reasons. Certainly it is well established that the officer has
discretion under section 48 of IRPA to time removals by taking into
consideration fitness to travel, the end of a school year, refund of a rental
deposit, medical issues and whether an H&C decision should have already
been rendered save for bureaucratic delays.
[45]
What
I do say however is that an enforcement officer has not been empowered to opine
on decisions already rendered on PRRA or H&C applications with risk
elements. Nor is he or she in a position to opine whether an applicant will be
successful in an application for leave and for judicial review already filed. I
accept that the officer has jurisdiction to defer removal on the basis that a
decision will soon be rendered by the Court. However it is also open to the
officer to refuse, leaving it to the applicant to seek a stay from a judge of
this Court.
[46]
As
mentioned in my earlier decision in Shpati it may be that in Perez the
Federal Court of Appeal was limiting itself to the case before it which was a
dismissal of a stay motion by a judge of this Court, not a refusal by an
enforcement officer to defer in favour of the judicial process.
[47]
Notwithstanding
that Perez might be distinguishable, it does not appear that way on its
face. Consequently, judicial review should be granted as the enforcement
officer erred in law in stating that if successful in his PRRA, Mr. Shpati
would be entitled to return to Canada. The remedy, however, since he is entitled
to a new H&C, is simply a declaration to that effect – no more.
CERTIFIED QUESTIONS
[48]
At
the close of the hearing, I stated that I was inclined to dismiss the PRRA, and
to grant the H&C. The only indication I gave with respect to the decision
not to defer was my concern that there may be an element of mootness involved.
The parties were invited to frame questions for certification accordingly.
[49]
Neither
party proposed a question in IMM-6522-09, the H&C decision. None shall be
certified.
[50]
In
IMM-6518-09, the PRRA decision, Mr. Shpati proposed two questions. The first
one is:
Where the newly acquired documents
corroborate, validate or clarify an alleged risk that was advanced previously
at their refugee hearing, must the PRRA officer consider this evidence “new”
for the purposes of a PRRA analysis?
[51]
The
second more properly relates to the role of the enforcement officer and will be
considered in that context.
[52]
In
my opinion, the “new” evidence proffered by Mr. Shpati was not, for the reasons
stated, “new” evidence at all and would not support a successful appeal. I
decline to certify.
[53]
With
respect to IMM-1396-10, the refusal to defer removal by the enforcement
officer, there are three proposed questions, one by Mr. Shpati and two by the
Minister.
[54]
Mr.
Shpati’s second question is this:
Where an applicant has pending PRRA
litigation before the Court, does this pending litigation require that he be
allowed to remain in Canada until its conclusion in view of section 72 of the IRPA,
section 31(2) of the Interpretation Act, Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 and the Respondent’s
Manual PP3, without the necessity to seek an application for a stay of removal?
[55]
The
Minister proposed two questions in the alternative:
When a foreign national has a negatively
determined PRRA, has filed an application for leave and judicial review of that
PRRA decision, but continues to maintain the same allegation of risk in a
request to defer removal, does an enforcement officer have the discretion to
defer removal on that basis alone or must a judicial stay based on the PRRA
application for leave and for judicial review be sought in Federal Court?
and:
Does the potential mootness of an
applicant’s PRRA litigation upon removal warrant a deferral of removal pending
resolution of this same litigation?
[56]
My
decision is final, without an appeal to the Federal Court of Appeal unless in
accordance with section 74 of IRPA, I certify that a serious question of
general importance is involved.
[57]
In
Canada (Minister of
Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, the
Federal Court of Appeal was of the view that:
a.
The
question must be one that transcends the interests of the parties to the
litigation and contemplates broad significance or general application;
b.
The
question must be dispositive of the appeal;
c.
The
certification process is not to be equated with declaratory judgments of
questions that need not be decided in order to dispose of the case, or be
equated with the reference process.
[58]
In
Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89,
318 N.R. 365, the Federal Court of Appeal added that if the judge in first
instance decided that an issue need not be dealt with, such issue would not be
an appropriate question for certification.
[59]
More
recently in Varela v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, Mr.
Justice Pelletier speaking for the Federal Court of Appeal added that a serious
question of general importance must arise from the issues in the case and not
from the judge’s reasons.
[60]
In
Varela, above, I certified a number of questions. I certified them
notwithstanding I was comfortable with my own reasons. Would it have made a
difference if I had expressed doubt? Lord Denning in his The Discipline of
Law, Oxford University Press, 1979, quoted Sir George Jessel as saying “I
may be wrong and sometimes am, but I am never in doubt.” The issue is not how
strongly the views of the judge in first instance are held, but rather whether
he or she is open enough to realize that there may be another point of view.
[61]
Nevertheless,
guided by Zazai I did not even deal with the Interpretation Act
and so will not certify a question related thereto.
[62]
The
thrust of Mr. Shpati’s other question is that Perez was wrongly decided.
As the Minister is the only possible appellant, that issue would not be
depositive of the appeal as per Liyanagamage, above. However, as
per Varela, above, and previous cases, if another question is certified,
it is open to the Federal Court of Appeal to consider all relevant issues.
[63]
It
is not for me to say that Perez was wrongly decided. It is for the
Federal Court of Appeal to decide the extent to which it is prepared to revisit
its own decisions. The Court of Appeal has taken the position that it, as an
intermediate court of appeal, ought not to depart from a decision of an earlier
panel merely because it considers that the first case was wrongly decided. The
Supreme Court would normally be the appropriate forum. The leading case is Miller
v. Canada (Attorney
General),
2002 FCA 370, 220 D.L.R. (4th) 149, based to a considerable extent upon its
earlier decision in Canada (Minister of Employment
and Immigration) v. Widmont, [1984] 2 F.C. 274. The Court will not
overrule a decision of another panel unless the previous decision was
manifestly wrong.
[64]
Thus
in Kremikovtzi Trade v. Phoenix Bulk Carriers Ltd., 2006 FCA 1, 3 F.C.R.
475, the presiding panel had a point of view different from the Court’s earlier
decision in Paramount Enterprises International, Inc. v. An Xin Jiang (The),
[2001] 2 F.C. 551, but would not depart from it. However, the Federal Court of
Appeal allowed the appeal and the Supreme Court allowed the subsequent appeal.
In its decision Phoenix Bulk Carriers Ltd. v. Kremikovtzi Trade, 2007
SCC 13, [2007] 1 S.C.R. 588, at paragraph 3 of its reasons, the unanimous
Supreme Court said:
[…] Whatever the merits of the practice that led the Federal
Court of Appeal to allow the appeal, its conclusion that s. 43(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, was not satisfied
in this case cannot stand.
[65]
Neither
Miller or Widmont, above, made reference to the earlier decisions
of the Federal Court of Appeal in Domestic Converters Corporation v. Arctic
Steamship Line, [1980] F.C.J. No. 321 (QL), only officially reported
years later at [1984] 1 F.C. 211, and Miida Electronics, Inc. v. Mitsui O.S.K. Lines Ltd. and ITO --
International Terminal Operators Ltd., [1982] 1 F.C. 406.
[66]
In
Domestic Converters, Justices Pratte and Le Dain concluded that Canadian
maritime law did not encompass a claim against a terminal operator for loss of
cargo after discharge from a ship but before delivery. The third member of the
panel, Deputy Judge Lalonde, dismissed the claim against the terminal operator
on the merits and so deliberately refrained from opining on jurisdiction.
[67]
Not
so many months later, the same issue came up again in Miida. Mr. Justice
Pratte reiterated that the Federal Court did not have jurisdiction over the
terminal operator. Mr. Justice Le Dain said: “On the question of jurisdiction,
I am now of the view that I was wrong in the conclusion which I reached in the Domestics
Converters case.” This time, Deputy Judge Lalonde considered jurisdiction
and came to the same conclusion as Mr. Justice Le Dain. That is the view which
ultimately prevailed in the Supreme Court (ITO – International Terminal
Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 (The
Buenos Aires Maru)).
[68]
The decision as staked out by the Federal Court of Appeal in Domestic
Converters could hardly be considered one that was “manifestly wrong”, yet
it was reversed 2-1 by the same panel which had decided it.
[69]
I
agree with the Respondent’s submissions that both questions he submitted are
serious, of general importance, address the scope of enforcement officers’
jurisdiction, and would support an appeal. I see no reason why both should not
be certified.
[70]
Based
on my reading of Baron, above, I consider that a live controversy still
exists, so that the matter is not moot. I would have come to the opposite
opinion had the judicial review of the H&C decision been dismissed.
SUMMARY
[71]
The
judicial review in the PRRA, IMM-6518-09, is dismissed. The judicial review in
the H&C, IMM-6522-09, is granted. There is no question to certify under
either docket number.
[72]
The
judicial review in IMM-1396-10, the refusal to defer, is granted. Both questions
proposed by the Minister are certified.
[73]
A
copy of these reasons shall be placed in all three docket numbers.
“Sean Harrington”
Ottawa, Ontario
October
25, 2010
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