Date: 20090323
Docket: IMM-2666-08
Citation: 2009 FC 306
Ottawa, Ontario, March 23,
2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
CALVIN ANTHONY WILKS
Applicant
and
THE IMMIGRATION AND REFUGEE
BOARD
and THE MINISTER OF PUBLIC SAFETY
(CANADA BORDER SERVICES AGENCY)
Respondents
UREASONS FOR JUDGMENT AND JUDGMENT
[1]
Calvin
Anthony Wilks applies, pursuant to section 72 of the Immigration and Refugee
Protection Act (IRPA), for judicial review of a May 28, 2008 decision of
the Immigration Appeal Division Panel (the IAD Panel) refusing his application
to re-open his appeal.
[2]
Mr.
Wilks, who had landed status, was ordered deported from Canada to Jamaica for reasons
of serious criminality following an admissibility hearing on October 31, 2005.
He appealed the Removal Order to the Immigration Appeal Board (IAD) that same
day.
[3]
On
April 30, 2007, the IAD sent Mr. Wilks correspondence requiring his
confirmation of his readiness to proceed. When no response was received, the
IAD sent Mr. Wilks a Notice to Appear at a show cause conference as to why the
appeal should not be declared abandoned. Mr. Wilks neither responded nor appeared
at the June 27, 2007 show cause conference. As a result, his appeal was determined
to be abandoned pursuant to s. 168(1) of IRPA on July 10, 2007.
[4]
On
November 26, 2007, Mr. Wilks filed a change of address with the IAD. In March
2008 he was arrested at that address and is detained on an immigration warrant.
[5]
On
March 28, 2008 Mr. Wilks’ lawyer was advised that the IAD correspondence and Notice
to Appear to Mr. Wilks had not been returned to the IAD. On March 31, 2008,
the IAD recorded the return of the undelivered readiness correspondence sent the
previous year on April 30, 2007.
[6]
Mr.
Wilks applied to re-open his appeal. On May 28, 2008 the IAD Panel denied his
application to re-open the appeal because it did not find the IAD had failed to
observe a principle of natural justice and also because it had no jurisdiction
to re-open the appeal on equitable grounds.
The Issues
[7]
Mr.
Wilks submitted that the IAD breached a principle of natural justice by failing
to contact him by a still-valid mobile telephone number recorded in his original
contact information when he had not responded to the IAD correspondence and Notice.
Mr. Wilks says he has a prior history of attending when required. He also questioned
the late receipt of the returned readiness correspondence eleven months after
it had been mailed. Finally, he submitted that he should be entitled to
equitable relief in the circumstances.
[8]
The
issues are as follows:
Did the IAD Panel err in its finding of
fact or in determining that the IAD had not breached the principles of natural
justice when it refused to reopen his appeal?
The Facts
[9]
Calvin
Anthony Wilks is a Jamaican citizen. He was sponsored by his sister and received
landed status in Canada in 1984 when he was twenty years old. In 1997,
Mr. Wilks was convicted of trafficking cocaine and received a sentence of six
months imprisonment.
[10]
An
admissibility hearing commenced on whether he should be held inadmissible on
grounds of serious criminality following his conviction for trafficking in a
controlled substance. The admissibility hearing was adjourned on numerous
occasions because Mr. Wilks was unable to obtain legal counsel. However, he
attended as required at all times. On October 31, 2005, he was held to be
inadmissible. As a result, Mr. Wilks was ordered to be deported from Canada.
[11]
Mr.
Wilks appealed the Removal Order on the same day as the inadmissibility
decision. In his Notice of Appeal, Mr. Wilks provided his residential address
and a mobile cell phone number.
[12]
The
IAD acknowledged receipt of his appeal on November 17, 2005. The IAD letter informed
him that “It is your responsibility to let us know where we can contact you.
The IAD is not responsible for trying to locate you if you move.” The letter
also included a note advising that, under s. 168(1) of IRPA, if he should fail
to appear or communicate when requested, his appeal may be determined to be
abandoned.
[13]
On
April 30, 2007, the IAD sent Mr. Wilks correspondence requesting his Notice of
Readiness. He was required to complete and return the form no later than 15
days of receipt of the letter. Mr. Wilks did not respond to the readiness correspondence.
On June 1, 2007, the IAD sent Mr. Wilks a Notice to Appear to attend a show
cause conference to show why his appeal should not be declared abandoned. Mr.
Wilks did not respond or attend the show cause conference on June 27, 2007. On
July 4, 2007 Mr. Wilks’ appeal was determined to be abandoned.
[14]
At
the time the readiness correspondence and the Notice to Appear were mailed Mr.
Wilks was no longer living at the original address on the IAD file. He had
moved. Shortly after moving to a new address, he had to vacate his new
premises as well. He spent two months at a shelter during which time he lost
his identification and his landing documentation.
[15]
In
February 2007 Mr. Wilks moved into a new residence. With the help of social
service agencies he obtained new identification and then, in November 2007,
filed a change of address notice with the IAD. He declares, however, that he
still had his original mobile telephone with him until the latter part of 2007.
The mobile telephone number was listed in his IAD original contact information
and that he could be reached at that number.
[16]
In
March 2008, Mr. Wilks was arrested at his new address on an immigration
warrant. He has remained in custody since arrest. While in detention he
obtained the services of legal counsel who made inquires at the IAD. On March
28, 2008, the IAD wrote to advise Mr. Wilks’ lawyer that there had been no
return of mail sent. Three days later, on March 31, 2008, the IAD received and
date stamped as returned the readiness correspondence sent to Mr. Wilks eleven
months earlier. On April 9, 2008, an IAD clerk phoned Mr. Wilks’ lawyer
advising that the IAD was in receipt of the returned readiness correspondence
and asked for Mr. Wilks current address.
[17]
On
May 1, 2008 Mr. Wilks applied to re-open the appeal of the negative
admissibility decision. The IAD Panel denied the application to re-open his
appeal on May 28, 2008.
The Decision Under
Review
[18]
The
IAD Panel noted that at the time Mr. Wilks was ordered deported he resided at 2417
Brookhurst Road, Mississauga, Ontario L5J 1R4 which was the
address he provided on filing his appeal to the IAD. The address remained on
file until he filed a change of address on November 26, 2007. The Panel noted
that both the readiness correspondence and the Notice to Appear were sent to
Mr. Wilks at the Brookhurst address and were not returned to the IAD prior to
the abandonment decision (made on June 1, 2007). Finally the IAD Panel noted
that the IAD was not in receipt of any returned mail marked undelivered prior
to March 31, 2008 when the readiness correspondence was returned to the IAD
marked “return to sender-moved/unknown”.
[19]
The
IAD Panel noted that its ability to declare an appeal abandoned derives from s.
168(1) of IRPA. When Mr. Wilks failed to respond to the readiness
correspondence, he was afforded an opportunity to show cause why the appeal
should not be considered abandoned. The IAD Panel considered the question of
whether Mr. Wilks was given adequate notice of the show cause conference. It
decided adequate notice was provided in that the IAD sent out the notice to the
address on file. Previous correspondence sent to Mr. Wilks at the Brookhurst
address had not been returned.
[20]
The
IAD Panel acknowledged the possibility that the address might not be correct
because of human error. The Panel stated that an important indicator that
there was no problem is the absence of returned mail. It noted that the IAD
relies on a presumption of regularity in the postal handling of mail. The post
office is presumed to do its job in accordance with the regulations governing
mail. This presumption was refutable by credible evidence to the contrary.
Since there was no returned mail until March 2008 and even then only one of
several letters sent to Mr. Wilks returned, the Panel stated that “it cannot be
concluded that procedural fairness was breached in respect of the provision of
adequate notice.”
[21]
The
IAD Panel decided that while it had a duty of care, Mr. Wilks had a positive
obligation to inform the IAD of any change of address. He had been reminded of
that obligation in the Notice of Appeal documentation and in the IAD
acknowledgement of his Notice of Appeal. The Panel noted that he did not file
a change of address until six months after his appeal had been abandoned. The
Panel held that Mr. Wilks did not, after re-establishing his residence, file a
change of address “without delay” while ten months lapsed when he
re-established his residence in February 2007 and when he filed his change of
address in November 2007.
[22]
The
IAD Panel noted counsel’s submissions concerning the late return of the
readiness correspondence. It found that if the mail had been returned in a
timely manner, the IAD would, in accordance with general operating practise, attempt
to contact Mr. Wilks. The Panel held that a condition precedent to the IAD
taking extra steps to telephone an appellant is that the IAD must be aware
there is a problem with the mail such that direct contact is required. However,
the Panel found there was no evidence that the readiness correspondence was
returned on a date other than indicated by the March 31, 2008 date stamp. Since
the IAD had no previous knowledge that Mr. Wilks was no longer at the address
he had provided, the IAD Panel did not perceive any fault to lie with the IAD
for the failure of timely notice to Mr. Wilks.
[23]
The
IAD Panel held that the only ground for re-opening an appeal is a breach of
natural justice. The Panel held that “it is satisfied that the IAD did not
fail to observe a principle of natural justice when it declared the appeal
abandoned for the following reason.”
[24]
Finally,
the IAD Panel noted that while the IAD has equitable jurisdiction in appeals,
it did not in respect of re-opening appeals. The Panel noted that Mr. Wilks’
circumstances speak to a re-opening of the appeal on equitable grounds but the
Panel may only re-open an appeal when it is clearly established that the IAD
has failed to observe a principle of natural justice.
Standard of Review
[25]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9 at para. 62 stated that, in
determining the appropriate standard of review, two steps are involved.
First, the court must determine whether the jurisprudence has already assessed
the degree of deference to be accorded with regard to the particular issue at
hand. Second, if the jurisprudence has not determined an appropriate standard
of review the court must evaluate the standard of review factors. The Supreme
Court confirmed this analysis in Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12.
[26]
In
Dubrézil v. Canada (M.C.I.), 2006 FC
142, Justice Noёl, deciding on the same issue as in this proceeding,
found that the standard of review was patent unreasonableness.
[27]
Issues
that will attract review on the reasonableness standard include matters of
fact, mixed law and fact, discretion and policy: Dunsmuir at paras. 51
and 53. The IAD Panel’s decision is based on mixed fact and law and, therefore,
the standard of review is reasonableness.
Law
[28]
Section
168 of IRPA states as follows:
|
Abandonment of proceeding
168. (1) A Division may determine
that a proceeding before it has been abandoned if the Division is of the
opinion that the applicant is in default in the proceedings, including by
failing to appear for a hearing, to provide information required by the
Division or to communicate with the Division on being requested to do so.
|
Désistement
168. (1) Chacune des sections peut prononcer le désistement dans l’affaire
dont elle est saisie si elle estime que l’intéressé omet de poursuivre
l’affaire, notamment par défaut de comparution, de fournir les renseignements
qu’elle peut requérir ou de donner suite à ses demandes de communication.
|
[29]
Immigration
Appeal Division Rules, SOR/2002-230, subsection 13(4) states :
|
Change
to contact information
13.(4) If the contact
information of the person or their counsel changes, the person must without
delay provide the changes in writing to the Division and the Minister.
|
Changement de coordonnées
13.(4) Dès que les
coordonnées de la personne en cause ou celles de son conseil, le cas échéant,
changent, la personne en cause transmet les nouvelles coordonnées par écrit à
la Section et au ministre.
|
[30]
Pursuant
to s.71 of IRPA the only ground the IAD can grant a motion to re-open an appeal
is if the IAD failed to observe a principle of natural justice. The section
states as follows:
|
Reopening appeal
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.
|
Réouverture de l’appel
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.
|
Analysis
[31]
Mr.
Wilks
submits that the IAD Panel erred in finding that the IAD did not fail to
observe a principle of natural justice. He also submits that he was entitled
to judicial review on equitable grounds but abandoned that submission during
argument.
[32]
Mr.
Wilks referred to three immigration cases, Canada (Minister of Citizenship
and Immigration, Minister of Public Safety and Emergency Preparedness) v. Ishmael,
2007 FC 212; Dubrézil v. Canada (Minister of Citizenship and Immigration),
2006 FC 142; and Ramcharan v. Canada (Minister of Public Safety and
Emergency Preparedness), [2008] I.A.D.D. No. 358.
[33]
Mr.
Wilks acknowledges that in Ishmael there was adequate notice to the
applicant who was aware of the hearing at issue. Mr. Wilks argues that his
circumstances are different than that in Ishmael since he did not have actual
notice of the show cause hearing because the IAD had his then still-valid mobile
telephone number on record and did not attempt to contact him.
[34]
Mr.
Wilks submits that, in Ramcharan, the IAD scheduling unit attempted to
contact the appellant at his work and telephone number provided in his Notice
of Appeal (although unsuccessfully). The point being that IAD was telephoning
appellants during the same year that Mr. Wilks’ show cause conference was
scheduled.
[35]
In
Dubrézil, Justice Noёl found there was no breach of
procedural fairness when “The IAD did what it could to contact the applicant.”
However, in Dubrézil, there is no mention of whether the IAD had
telephone contact information for Mr. Dubrézil.
[36]
Mr.
Wilks does not dispute that he was in receipt of the November 17, 2005 IAD
acknowledgement of the Notice of Appeal. This IAD letter confirmed receipt of
his Notice of Appeal and reminded him of the importance of informing the IAD of
any change of contact information. Mr. Wilks says it is the later readiness
correspondence and the Notice to Appear which he did not receive.
[37]
Mr.
Wilks submits that the IAD should have used the provided mobile telephone
number to contact him after there was no response to its letters and notices.
Mr. Wilks submits that the IAD Panel erred in finding that the IAD had not
breached procedural fairness by not attempting to phone him when it had his
mobile telephone number on hand.
[38]
The
wording of section. 71 of IRPA, “[T]he Immigration Appeal DivisionU … may reopen an appeal if
it is satisfied tThat it failed to observe
a principle of natural justice” (emphasis added), makes it
clear that the breach must be the fault of the IAD as an entity and not merely
to the decision maker who determines the appeal to be abandoned.
[39]
The
IAD processes involve documentation. The transmission of the documents is
ordinarily done through the mail. Given the regulatory regime that governs the
postal delivery and return of mail the IAD is entitled to rely on the presumption
mail is delivered to the address provided by an applicant and, if the address
is no longer valid, that mail will be returned to the IAD.
[40]
While
s. 71 of IRPA exists to prevent the person concerned from being prejudiced by
an error of the IAD, it does not permit a person concerned to benefit from his
own actions or omissions. Mr. Wilks’ hearing was properly considered abandoned
by the IAD under s. 168(1) of IRPA because he did not appear when required or
communicate with the IAD when requested to do so. Section 168(1) imputes a
degree of responsibility on an applicant. Mr. Wilks was aware that he was
required to keep his contact information up to date at the IAD but he failed to
fulfill his responsibility.
[41]
In
Dubrézil, Justice Noёl made it very clear that responsibility for
maintaining contact lay with the applicant. The last known mailing address for
Mr. Dubrézil was the Bordeaux prison. Letters were
returned to the IAD from the prison, as Mr. Dubrézil was no longer resident
there. The IAD then sent its letter to his last known address on file, which
was also unsuccessful. Justice Noёl stated:
The IAD was not bound to act as the
applicant’s legal counsel, or to remind him of the seriousness of the proceedings
in which he was involved, or to ensure that he properly understood that he had
to show up at his scheduling conference or that he was bound to advise the IAD
of his change of address.
[42]
Given
the above limit to the IAD’s obligations, the IAD is not obligated to take
further measures such as telephoning when it relies on a mailing address provided
by an applicant unless it has an indication that the provided address is
invalid. Without an indication that the mail was going to an invalid address,
there is no obligation on the IAD to make further efforts to contact Mr. Wilks.
[43]
The
IAD had no reason to believe Mr. Wilks had not received any of its
correspondence or the Notice to Appear since none were returned before the abandonment
determination was issued on July 4, 2007. The IAD Panel’s conclusion that the
IAD is entitled to presume that its correspondence and Notices sent to the
address provided by Mr. Wilks were received when that mail was not returned was
reasonable.
[44]
There
remains the question of the late return of the readiness correspondence on
March 31, 2008.
[45]
Mr.
Wilks submits three possibilities: (1) the mail was unlawfully delayed by a
person living at the indicated address; (2) the mail was in the possession of
Canada Post even though mail may not be detained for more than 30 days; and (3)
a clerical error on the part of the IAD failing to log and handle the Readiness
correspondence returned on an unspecified earlier date such that it did not
make it into Mr. Wilks’ file.
[46]
The
first two possibilities do not assist Mr. Wilks in that they do not indicate a
breach of natural justice by the IAD at the time Mr. Wilks appeal was
determined to be abandoned. The IAD Panel accepted the date stamp of March 31,
2008 as being the date the readiness correspondence was returned. The Panel
noted that the decision maker checked that the mail had been sent to the
address on file and that no mail had been returned at the time the abandonment
decision was made on July 4, 2007.
[47]
However,
the presence of a date stamp itself does not rule out the third possibility
that the return mail was received earlier but had not been properly recorded at
the time. Was there evidence before the IAD Panel upon which the Panel could
conclude as it did?
[48]
On
careful review of the Record, I find that there was evidence upon which the IAD
Panel could find the date stamp properly reflected the date of receipt of the readiness
correspondence. First, the date stamp is accompanied by initials, which is an
indication that the usual IAD procedures were being followed when the readiness
correspondence was returned on March 31, 2008. Second, the IAD staff proceeded
to follow up on April 9, 2008, in accordance with IAD procedure of phoning an
applicant when mail was returned. The IAD Panel was cognizant of both these
facts and could reasonably conclude from this evidence that the date stamp
reflected the actual date of return of the readiness correspondence.
[49]
Equally
important, the IAD Panel noted that there was no contrary evidence concerning the
return date of the readiness correspondence.
[50]
Since
the IAD Panel had evidence upon which to base its finding, I conclude the IAD
Panel factual finding was reasonable.
[51]
In
his original written submission, Mr. Wilks had submitted that he was entitled
to equitable relief. That submission was withdrawn at the hearing, correctly,
in my view.
[52]
In
Ishmael, Justice Shore found that
the IAD had erred in law because it found that natural justice had not been
breached, and yet re-opened the appeal, apparently on equitable grounds.
Section 71 of IRPA provides that the IAD only has jurisdiction to re-open an
appeal when natural justice has been breached. The IAD found that the
appellant had received adequate notice, and therefore no breach of procedural
fairness. Yet it re-opened the appeal. Justice Shore noted at
para. 22:
“The Panel’s decision
to re-open simply ignores its own assessment of the evidence and,
therefore, falls outside of its jurisdiction to re-open an appeal.” (original
emphasis)
[53]
In
considering an application to re-open under s. 71 of IRPA, the
legislation and jurisprudence is clear. The IAD does not have jurisdiction to
re-open an appeal under s. 71 on equitable grounds.
[54]
The
application for judicial review is dismissed.
UJUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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