Date: 20071016
Docket: IMM-1190-07
Citation:
2007 FC 1047
Ottawa, Ontario, October 16, 2007
Present:
The Honourable Mr. Justice Shore
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
PALUMBO, Vincenzo
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
SUMMARY
[1]
The
decision of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board was made without complying with subsection 26(3) of the Immigration
Appeal Division Rules, SOR‑2002‑230 (IAD Rules), which requires
that the parties must be notified if the Division reconsiders an appeal on its
own initiative. In addition to being a violation of its own rules, this non‑compliance
constitutes a breach of the rules of procedural fairness and natural justice.
[2]
It is
important to point out that in Canada (Minister of Citizenship and
Immigration) v. Charabi, 2006 FC 996, [2006] F.C.J. No. 1272 (QL), Mr.
Justice Pierre Blais set aside a similar decision by the same member.
[3]
In that
case, despite notifying the parties that it was planning to conduct an interim
reconsideration of the stay, the IAD deprived the applicant of the right to be
heard because the notice that was given did not constitute sufficient notice of
the nature of the hearing before the member, who ultimately set aside the stay
of the applicant’s removal order and allowed his appeal.
[4]
In this
case, the violation of the parties’ rights is even more flagrant in that the
IAD did not even notify them that it was planning to conduct an interim
reconsideration of the stay.
INTRODUCTION
[5]
This is an
application for leave and judicial review of a decision of IAD member Robert
Néron, dated February 21, 2007, in file MA5-02237, in which he reconsidered and
amended the terms and conditions of the stay of the removal order that had been
granted to the respondent on May 31, 2006.
[6]
The
applicant challenges this decision because member Néron opened the file on his
own initiative and unilaterally reconsidered it without notifying the parties.
This was a breach of the rules of natural justice and procedural fairness.
[7]
[17] I will refer to some doctrine and jurisprudence. Referring
to Administrative Law, Third Edition, David J. Mullan cites at page 240,
paragraph 111:
Adequate notice requires that the
decision-maker supply persons who are entitled to notice with sufficient
information on the nature of the proceedings and sufficient warning of the
intention to make a decision as will enable them to prepare their proofs and
arguments for presentation and to respond to the proofs and arguments
anticipated from those maintaining a contrary position, and to appear and
participate effectively at any oral hearings. In proceedings where there are
contesting parties, this obligation may extend as far as requiring that each
side reveal to the other matters that it intends to put in issue at the
hearing.
[18] Also, the Supreme Court of Canada in Confederation
Broadcasting (Ottawa) Ltd. v. Canada (Canadian Radio-Television Commission),
[1971] S.C.R. 906 held:
It is quite plain that the requirements of
natural justice demand that a person have full and complete notice of the
charges against him and an opportunity to reply thereto. It has been said in
this Court in two recent decisions: Regina v. Quebec Labour Relations Board,
ex parte Komo Construction Inc., [1968] S.C.R. 172, 1 D.L.R. (3d) 125] and Quebec
Labour Relations Board v. Canadian Ingersoll Rand Co. Ltd. et al., [1998]
S.C.R. 695, 1 D.L.R. (3d) 417], that the requirement of natural justice did not
extend to demanding that a hearing policy be had. These cases cited by counsel
for the respondent on the present appeal are not, in my opinion, important on
the present issue because here there was a hearing but in both judgments it is
said plainly that “each party be given the opportunity to put its arguments” (Komo
case) and “what is required is that the parties be given the opportunity to put
forward their arguments” (Canadian Ingersoll Rand case).
In the present case, the complaint is not
that there was not a hearing but that the respondent failed to indicate in any
fashion whatsoever what issue would be considered on that hearing.
[19] In Stocking, above,
Justice Nadon stated at paragraph 16:
The Appeal Division’s letter of August
21, 1997, which I reproduced in full earlier, does not constitute adequate or
reasonable notice to the applicant. If the Appeal Division intended to review
the applicant’s file to determine whether the stay should be continued, as it
was entitled to under subsection 74(3) of the Act, it could and should have
given the applicant notice of its intention to do so. What the applicant was
informed of was that the Appeal Division would inquire whether he had complied
with the terms of the stay. The evidence, as found by the presiding member, was
that the applicant had complied with the terms imposed upon him. That, in my
view, should have been sufficient to dispose of the issue before the Appeal
Division on October 20, 1997. In the circumstances, I am therefore of the view
that the rules of natural justice require that the decision of the Appeal
Division be set aside. If the Board wishes to review the original stay it has
the jurisdiction to do so, however, the rules of natural justice require that
the applicant be notified of the Board’s intent and be given the opportunity to
respond.
(Charabi, above)
FACTS
[8]
As for the
facts of the case, the applicant relies completely on, and refers the Court to,
the affidavit of Ms. Nathalie Bélanger, senior advisor for the Canada Border
Services Agency.
[9]
The
respondent, Mr. Vincenzo Palumbo, is an Italian citizen. He arrived in Canada
on April 11, 1981, and became a permanent resident the same day.
[10]
On
November 22, 2004, he was convicted of two offences under the Criminal Code,
R.S.C. 1985, c. C-46, and the Controlled Drugs and Substances Act,
1996, c. 19, and sentenced to a term of nine months in prison for conspiracy to
traffic in cocaine and possession of cocaine for the purpose of trafficking.
[11]
On March
22, 2006, he was the subject of an inadmissibility report under section 44 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on
grounds of serious criminality under paragraph 36(1)(a) of the Act. The
Minister of Citizenship and Immigration referred the matter to the Immigration
Division (ID) of the Immigration and Refugee Board for investigation.
[12]
On May 18,
2005, the ID ordered that the respondent be deported from Canada.
[13]
The
respondent appealed this decision to the IAD based on humanitarian and
compassionate grounds.
[14]
On May 31,
2006, IAD member Mr. Tony Manglaviti ordered that the removal order be stayed
for seven years, subject to certain conditions, as set out in exhibit B to the
affidavit of Ms. Bélanger.
[15]
The IAD’s
decision also provided that an interim review of the applicant’s case could, if
necessary, occur on or about August 2, 2007.
[16]
On
February 21, 2007, member Néron reviewed the case and ordered that the stay
continue on the same conditions as in the order of May 31, 2006, but reduced
the stay by three years.
[17]
The IAD
Registry confirmed that the file did not contain a request by the applicant to
reconsider or revise the stay, and that the parties were never informed of the
panel’s intention to reconsider or amend the stay.
ISSUE
[18]
Did the
IAD comply with the rules of natural justice and procedural fairness?
ANALYSIS
[19]
There is
no doubt in this case that the IAD failed to comply with the rules of natural
justice and procedural fairness.
[20]
The appeal
process before the IAD is governed by sections 62 to 71 of the IRPA and
sections 26 and 27 of the IAD Rules.
[21]
Section 68
of the IRPA provides, inter alia, that the IAD may, on application or on
its own initiative, cancel, vary or review a stay:
|
Removal order stayed
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.
Effect
(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.
Reconsideration
(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.
Termination and
cancellation
(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.
|
Sursis
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.
Effet
(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.
Suivi
(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.
Classement et annulation
(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.
|
[22]
The IAD’s
decision does not comply with subsection 26(3) of the IAD Rules, which requires
that the parties must be notified if the panel reconsiders an appeal on its own
initiative. In addition to being a violation of its own rules, this
non-compliance constitutes a breach of the rules of procedural fairness and
natural justice:
|
26. …
Reconsideration on Division's
own initiative
(3) If the Division reconsiders
an appeal on its own initiative, the Division must notify the parties. The
parties must provide to the Division and each other, within the time period
specified by the Division, a written statement of whether the subject of the
appeal has complied with the conditions of the stay.
|
26. [...]
Reprise de l'appel
par la Section de sa propre initiative
(3) Dans le cas où la Section
reprend l'appel de sa propre initiative, elle en avise les parties. Chaque
partie transmet, à la Section et à l'autre partie, dans le délai fixé par la
Section, une déclaration écrite portant sur le respect ou non, par la
personne en cause, des conditions du sursis.
|
[23]
It is
important to point out that in Charabi, above, Blais J. set aside a
similar decision by the same member in 2006.
[24]
In that
case, despite notifying the parties that it was planning to conduct an interim
reconsideration of the stay, the IAD deprived the applicant of the right to be
heard because the notice that was given did not constitute sufficient notice of
the nature of the hearing before the member, who ultimately set aside the stay
of the applicant’s removal order and allowed his appeal.
[25]
In this
case, the violation of the parties’ rights is even more flagrant in that the
IAD did not even notify them that it was planning to conduct an interim
reconsideration of the stay.
[26]
The
failure to notify the parties invalidates the IAD’s decision.
CONCLUSION
[27]
This Court
summarizes the comments of Blais J. in Charabi, above, and states that
if the IAD intended to review or amend the stay, all it had to do was simply
provide the parties with appropriate notice of this intention.
[28]
The failure
to do so constitutes a breach of the rules of natural justice and procedural
fairness, which requires the intervention of this Court.
JUDGMENT
Considering
that a serious question has been raised and that the situation demonstrates
that this is a reasonable and defendable case,
THE COURT ORDERS that the application for judicial
review of the decision by the Immigration Appeal Division of the Immigration
and Refugee Board be allowed and that the matter be remitted for
redetermination by a differently constituted panel.
“Michel
M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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