Date: 20080122
Docket: IMM-6078-06
Citation: 2008 FC 77
Ottawa, Ontario, January 22,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ASHLEY FRANCISCO RODRIGUES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Four
issues arise out of this judicial review application by Ashley Francisco
Rodrigues (the “applicant”), a 24 year old citizen of India and a
permanent resident of Canada since June 22, 1997 when he came to this
country at the age of 14 with his family. He seeks to set aside the October 27,
2006 decision of the Immigration Appeal Division (the “IAD” or the “tribunal”)
who dismissed his appeal from a deportation order made against him on April 7,
2005 pursuant to paragraph 36(1)(a) of the Immigration and Refugee
Protection Act (IRPA). Specifically the IAD refused to stay the execution
of the deportation order.
[2]
Before
the IAD, Mr. Rodrigues did not contest the legal validity of his deportation
order. His appeal to the tribunal engaged its discretionary authority under
section 68 of the IRPA to stay the deportation order “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”. As will be seen, the tribunal
refused to exercise its humanitarian and compassionate (H&C) jurisdiction
in favour of the applicant.
[3]
Paragraph
67(1)(c) and subsection 68(1) of IRPA read:
|
67. (1)
To allow an appeal, the Immigration Appeal Division must be satisfied that,
at the time that the appeal is disposed of,
…
(c) other than
in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
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.
|
|
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé
:
…
c)
sauf dans le cas de l’appel du ministre, 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.
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.
|
[4]
The
issues raised are:
·
A
preliminary issue raised by counsel for the respondent to the effect the Court
should not hear the applicant’s argument the tribunal’s decision should be set
aside because his former representative at the tribunal’s hearing was
incompetent. His representative was an immigration consultant apparently
retained by his solicitor for the purpose of his appeal to the IAD. Counsel for
the respondent states this issue had not been raised for consideration in the applicant’s
material seeking leave to appeal the tribunal’s decision;
·
If
the Court decides to hear the issue, whether the tribunal’s decision should be
set aside because is his former representative before the tribunal was
incompetent on the basis of the Supreme Court of Canada’s decisions in R. v.
G.D.B., [2000] 1 S.C.R. 520 coupled with its recent decision in Charkaoui
v. Minister of Citizenship and Immigration, [2007] S.C.J. 9 at paragraphs
53, 63 and 64;
·
Whether
the tribunal itself breached the principle of procedural fairness or natural
justice in the manner it handled the hearings; and
·
Whether
the tribunal erred in law in failing to properly consider all of the evidence
before it, especially the evidence on foreign hardship.
Facts
[5]
The
applicant was born in Kuwait in 1983. He is not a citizen of Kuwait but
of India. He
immigrated to Canada on June 22,
1997 with his parents. Aside from having lived for two years at an English
boarding school in India, he has had no contact with Indian culture, has
no relatives or friends there and does not speak the languages spoken in India except
English. He has a younger brother aged 16 at the time of the hearing before the
IAD.
[6]
On
January 18, 2002, before IRPA came into force, he was convicted of two
counts of breaking and entering a dwelling house, an offence under the Criminal
Code of Canada punishable by a maximum term of imprisonment of at least 10 years.
For this offence, he received a 4 months conditional sentence on each count and
12 months of probation. This crime led to an admissibility hearing and a
deportation order in April 2004.
[7]
The
applicant’s other conviction arose from an incident in October 2003. On June
19, 2006, he was convicted of aggravated assault and possession of a weapon for
which he was sentenced to a period of 2 years less 40 days. He has now served
that sentence and has been released from detention.
The tribunal’s decision
[8]
In
reaching its decision, the tribunal stated the onus was on the applicant to
show why he should not be removed from Canada. It held, in
addition to the best interest of a child directly affected, the I.A.D.’s
decision in Ribic as confirmed in the Supreme Court of Canada’s decision
in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 84 outlined the following number of non exhaustive factors which should
be considered in the exercise of its discretionary H&C jurisdiction namely:
(a) the
seriousness of the offence or offences leading to the removal order;
(b) the
possibility of rehabilitation or, alternatively, the circumstances surrounding
the failure to meet the conditions of admission;
(c) the length of
time spent, and the degree to which the appellant is established in Canada;
(d) the family in
Canada and the
dislocation to the family that removal would cause;
(e) the family
and community support available to the appellant;
(f) the degree of
hardship that would be caused to the appellant by the appellant’s return to his
or her country of nationality.
[9]
The
tribunal wrote: “Weight given to each of these factors can vary depending on
the circumstances of the case. In deciding this appeal, I have considered all
of these factors, the best interests of a child [his brother] directly affected
by the decision, and have taken into account all of the circumstances of this
case. I have also considered all of the testimony and documentary evidence, and
the submissions of the parties”.
[10]
The
tribunal also held in deciding the appeal, “I have an obligation to consider
the objectives of IRPA which include an objective “to protect the health
and safety of Canadians and to maintain the security of Canadian society.” It
noted in addition to the crime that led to the deportation order, the applicant
was also convicted of aggravated assault and weapons dangerous observing these
two crimes post-dated the crime which led to the deportation and arose out of
an incident in which a victim was assaulted with a baseball bat and a hammer by
a number of individuals including the applicant. The victim was hospitalized
with a fractured skull. The tribunal found because of the length of that sentence
and the number of the applicant’s crimes: “the overall criminality in this
appeal to be very serious. Serious criminality always weighs the negative
factor in the H&C balance … I assign this particular negative factor very
heavy weight”.
[11]
The
tribunal then analysed the rehabilitation factor holding despite the remorse
expressed at the hearing and his parents’ written supporting statements, it was
not persuaded he was advancing towards rehabilitation and this was particularly
worrisome given the very serious criminality present. The tribunal ruled while
his counsel submitted he was in counselling, “there is no actual evidence before
me of any counselling”. The tribunal then referred to a report of March 15,
2004 concluding the applicant did not realize the seriousness of the crime
which led to his deportation and did not accept responsibility for it. The
tribunal observed, both in the applicant’s testimony and statements and in the
statements of his parents: “a tendency for all of them to blame the appellant’s
criminality on others – e.g. the “wrong crowd.” I find that to be a tell-tale
indication that none of them truly accept that the appellant himself is
responsible for his own crimes. For these reasons, I find that the appellant
remains at substantial risk of re-offending.”
[12]
In
terms of the establishment factor, the tribunal mentioned he was studying
liberal arts at the University of Toronto but was not persuaded
he was established in Canada. It wrote: “He has not been in Canada all that
long – less then ten years, and I have no documentary evidence before me to
persuasively establish any sort of work history.”
[13]
The
tribunal then found there were no interests of a child that are directly
affected by its decision. It noted he had a 16-year old younger brother which
he was not supporting financially. It stated the applicant claimed his
brother’s best interests were affected on the basis he is a “role model”. It
ruled: “My finding in response: given criminal history, the appellant is, in my
view, a bad role model. I therefore find that it would be, at best, neutral,
or, more probably even better for the appellant’s brother’s best interests for
this appeal to be dismissed.”
[14]
It
concluded that all factors analyzed up to this point in its reasons: “weighs
negative in the humanitarian and compassionate balance.” Looking at “the other
side of the scales”, the tribunal said: “I do find several significant positive
factors.” It then referred to his family’s support and to the fact his parents
both gave statements in support and appeared at the hearing prepared to testify.
It recognized there will be significant family dislocation which seemed clear
from the parents’ statements and that of the appellant there is mutual love
between the applicant, his parents and his brother. It also recognized that:
“There will also be significant hardship to the appellant.” It accepted the
fact, while he is a citizen, he had not been to India for a long
time. It accepted the fact he had no relatives in India and English
was his only language. Having said this, the tribunal wrote: “However, I note
that this hardship is ameliorated somewhat by the fact that the appellant did
go to boarding school in Madras when he was a child.”
[15]
Before
expressing its conclusion, the tribunal stated: “No other factor or
circumstance was alleged that would merit my consideration in deciding this
appeal.” Its conclusion is expressed at paragraphs 19 and 20 of its decision as
follows:
[19] Weighing all of the factors above
in the balance, while I find the positive factors significant, I also find that
they are outnumbered by the negative factors and that their combined positive
weight is insufficient to counter the heavy combined weight of the negative
factors found, particularly in light of the deleterious combination of very
serious criminality and a substantial risk of re-offence. I therefore
find that the overall humanitarian and compassionate balance tilts
substantially negative. [Emphasis mine.]
[20] Stays of deportation are, by
their very nature, special relief. However, I find the overall humanitarian and
compassionate balance to weigh negative enough as not to merit any kind of
special relief. If the criminality in this appeal were less serious or the
rehabilitation evidence more persuasive, I might have found the scales to
balance close enough as to merit the granting of a stay. However, with
those two factors, both tilting negative as discussed, the stay outcome clearly
carries far too much risk for me to find that disposition appropriate. I
therefore do not grant a stay of deportation.” [Emphasis mine.]
Analysis
(a) The Standard of Review
[16]
The
standard of review of a decision of the IAD to refuse to grant a stay pursuant
to its H&C jurisdiction has recently been settled by the Federal Court of
Appeal in Khosa v. Canada (Minister of Citizenship and Immigration),
2007 FCA 24. The standard of review is reasonableness. This standard would
apply to the fourth issue.
[17]
A
decision is an unreasonable one if it is a decision, to use the words of
Justice Iacobucci in Canada (Director of Investigation and Research) v.
Southam Inc., [1997], 1 S.C.R. 748: “that, in the main, is not supported by any reasons that can stand
up to a somewhat probing examination.”
[18]
The other issues
raised in this case touch on questions of fairness, jurisdiction and law are to
be gauged on the correctness standard because no deference is owed to the
tribunal.
(b)
Discussion and Conclusions
Issue
no. 1 – The preliminary issue
[19]
I deal briefly with the
preliminary issue raised by counsel for the Minister. She urged I not entertain
the applicant’s argument on the incompetency of the consultant who represented
him before the IAD because that issue was not raised as a ground in the
applicant’s application for leave from this Court. The leave application was
prepared by Max Chaudhary, a barrister and solicitor. The issue of the
consultant’s incompetency was raised for the first time by Lorne Waldman in the
applicant’s further memorandum of fact and law. Counsel for the Minister relied
upon Justice Gibson’s decision in Arora v. Canada (Minister of Citizenship and
Immigration),
IMM-5901-99, January 10, 2001 followed by the Chief Justice’s decision in Garcia
v. the Minister of Citizenship and Immigration, 2006 FC 645.
[20]
As
I read both of these cases and I conclude it is a matter of discretion whether
the Court will allow a party to raise an issue for the first time in a further
memorandum. Both of my colleagues held that, in the particular circumstances
before them, it would be inappropriate to do so.
[21]
The
discretion in this Court to hear such an issue is analogous to the power which
the Federal Court of Appeal has to hear on appeal an issue raised for the first
time. In Benitez v. the Minister of Citizenship and Immigration, 2007
FCA 199, Justice Evans ruled that an
appellant may not normally raise issues for the first time on an appeal,
because that would put the appellate court in the position of having to decide
an issue without the benefit of the opinion of the lower court. He added the
role of an appellate court is generally confined to examining the decision of
the court below for reversible error. However, he noted there were exceptions
referring to the Federal Court of Appeal’s decision in Stumf v. Canada (Minister of Citizenship and
Immigration), 2002 FCA
148. The Federal Court of Appeal focused on two factors: lack of prejudice to
the Minister and whether the designation of a representative in the case could
have affected the outcome. It was satisfied there was a lack of prejudice and
the outcome of the case could have been affected.
[22]
In this case, the
issue of the consultant’s competence is central to the question whether the
applicant had a fair hearing. Moreover, there was no prejudice to the Minister;
the Minister’s counsel fully addressed the issue in her further memorandum of
argument. Counsel for the Minister did not request any adjournment in the
circumstances to address the issue which had not been raised on leave.
[23]
My analysis of the
Court’s discretionary power to hear argument on a point not raised in an
applicant’s leave application is similar to Justice Dawson’s reasoning in Al
Mansuri v. Canada (Minister of Public Safety and Emergency Preparedness),
2007 FC 22 concluding the Court had a discretionary power in the circumstances
and listing a number of non exhaustive factors which should be considered
recognizing that relevancy and weight will vary in the circumstances of each
case.
[24]
In the circumstances,
I reject the Minister’s preliminary objection and will deal with the issue of
the consultant’s competency.
Issue
no. 2 – The consultant’s incompetency
[25]
Both counsel agreed
the test for the consultant’s incompetency governing the matter before me was
as set out by Justice Major on behalf of the Supreme Court of Canada in R.
v. G.D.B., [2000] 1 S.C.R. 520 at paragraphs 26 to 29:
26
The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J. The reasons
contain a performance component and a prejudice component. For an appeal
to succeed, it must be established, first, that counsel’s acts or omissions
constituted incompetence and second, that a miscarriage of justice
resulted.
27
Incompetence is determined by a reasonableness standard. The
analysis proceeds upon a strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance. The onus is on the
appellant to establish the acts or omissions of counsel that are alleged not to
have been the result of reasonable professional judgment. The wisdom of
hindsight has no place in this assessment.
28
Miscarriages of justice may take many forms in this context. In some
instances, counsel’s performance may have resulted in procedural unfairness.
In others, the reliability of the trial’s result may have been compromised.
29
In those cases where it is apparent that no prejudice has occurred, it will
usually be undesirable for appellate courts to consider the performance
component of the analysis. The object of an ineffectiveness claim is
not to grade counsel’s performance or professional conduct. The latter is
left to the profession’s self-governing body. If it is appropriate
to dispose of an ineffectiveness claim on the ground of no prejudice having
occurred, that is the course to follow (Strickland, supra, at p. 697).
[Emphasis mine.]
[26]
In G.D.B., above,
the Court came to the conclusion there was no miscarriage of justice or
prejudice to the convicted appellant because he had been acquitted on the most
serious charge by the tactical decision of his defense counsel not to use a
particular piece of exculpatory evidence because such use would incriminate his
principal witness who was the accused’s spouse.
[27]
In the case before
me, the badges of the incompetence of the consultant, Mr. Aaron Vuppal, were
set out in the affidavit of Max Chaudhary dated September 13, 2007; the
affidavit of the applicant’s father who expressed his surprise that he and his
wife were not called as witness to support his son’s appeal and the affidavit
of Ms. Faruk who detailed Mr. Vuppal’s membership in the Canadian Society of
Immigration Consultants (CSIC) and his subsequent revocation on October 3, 2006
on the grounds that he did not meet the Society’s membership criteria. None of
the deponents were cross-examined.
[28]
Mr. Chaudhary outlined
the following factors which he said shows the applicant did not receive a fair
hearing on his appeal to the IAD:
·
The lack of
documentary evidence disclosure prior to or during the hearing on February 23,
2006. The only documentary disclosure consisted of two short statements from
the applicant’s parents. In particular, Mr. Vuppal did not provide copies of
any of the courses that the applicant had undertaken as part of the rehabilitation
process while in prison. He did not provide copies of the anger management
courses or any of the other rehabilitation courses. He did not obtain a
psychological assessment dealing with the likelihood of the applicant
committing further offences. Mr. Chaudhary states that: “All of this
disclosure is routine in these cases and is essential to a proper
representation by counsel and is what I would do routinely and would expect
from any lawyer working as an employee with me.” Mr. Chaudhary states
that he had discussed these matters with Mr. Vuppal and believed that he too
was complying with the normal practices before the IAD and only learned of his
failure in this case when the matter was brought to his attention by the new
counsel retained to represent him; [Emphasis mine.]
·
The fact Mr. Vuppal,
in chief, only asked the applicant three questions, they were:
(1)
“Sir, would you
please describe your feelings about all of your previous convictions.” to which
the applicant answered: “I completely regret getting involved in these
situations. I am really sorry.”
(2)
“And are you, would
you tell us something about your breach, how the breach occurred in?” [The
breach was a breach of his bail conditions not to associate with certain persons.]
and,
(3)
“And so did you show
good behavior if the panel (inaudible) conditions?” to which the applicant
answered: “Definitely, I will do anything.”
·
Mr. Chaudhary states,
in his affidavit, Mr. Vuppal failed to ask questions about the central issues
related to the case including whether or not the applicant would face hardship
upon return to India, a country where the applicant had never
lived except for three years when he was a child when he lived at the boarding
school. Mr. Vuppal did not explore whether the applicant had feelings of
remorse, his understanding of why he had committed the offences, his
understanding of the seriousness of the offences or his appreciation of the
harm these offences caused to society. He did not explore the issues related to
the hardship on deportation, hardship at being separated from his parents and
any of the other matters related to the humanitarian issues that were before
the IAD. Mr. Chaudhary states: “This too is far short of what I would do or
what I would expect a reasonably competent counsel before the IAD to do.”;
·
After the applicant’s
examination by the IAD member and by counsel for the Minister, Mr. Vuppal
advised the tribunal he had no further questions;
·
The fact he did not
call the applicant’s parents to expand on their very short written statement
which Mr. Chaudhary states did not touch upon key aspects of the issues that
were relevant for the issue of hardship. Mr. Chaudhary states: “Again, in my
practice I would have called the parents to give extensive evidence on the
prospects of rehabilitation, the impact of removal on the family here and on
the applicant given that the family has absolutely no ties or relatives in
India.”;
·
The lack of any
substantive and relevant submissions particularly when he knew the Minister’s
position was that the applicant’s appeal should be dismissed i.e. the applicant
should not be granted a stay from his removal to India;
·
The fact Mr. Vuppal
did not attend the reconvened hearing of the tribunal fixed for June 6, 2006.
The February 23, 2006 hearing had been adjourned to a date to be fixed because,
while the applicant had been convicted of the October 2003 aggravated assault
charge, he had not been sentenced. Nor had an outstanding charge against him
for possession of marijuana been heard and disposed of;
·
The fact Mr. Vuppal
did not object to the procedure of written submissions on the sentence imposed
for the aggravated assault conviction after he had initially insisted an oral
hearing should take place on that sentence so that the applicant could testify.
Mr. Chaudhary states, in his affidavit, Mr. Vuppal’s written submissions were
extremely poor and did nothing to resolve the issues related to the previous
submissions. He states the additional submissions failed to deal with any of
the central issues of the case such as removal to India, rehabilitation, remorse or the likelihood that the
applicant would not commit further offences in the future. Mr. Chaudhary
states that in his view these submissions and representation fell far below
what would be reasonably expected of a competent counsel so as to result in the
applicant being denied a fair hearing. He states: “Indeed the representation is
so inadequate that in my view the applicant was denied a fair hearing.”
[29]
My review of the
certified tribunal record reveals another badge of incompetence: Mr. Vuppal did
not reply to the Minister’s submissions on the sentencing for the aggravated
assault conviction. The Minister’s submissions focused on the gravity of the
offence, the harm suffered by the victim, the applicant’s lack of remorse and
his central role in the assault leading to the Minister’s central conclusion
that to protect the Canadian society he should be deported. Mr. Vuppal also
failed to file and deal with the sentencing decisions of the criminal courts
following conviction. (See the discussion on this point in G.D.B.,
above.)
[30]
Counsel for the
Minister argued a number of points to show the concerns raised regarding the
adequacy of counsel did not rise to the level of breach of natural justice. She
makes the point that in order to succeed the applicant must establish that his
representative’s conduct was incompetent, and that as a result, a miscarriage
of justice occurred noting that general dissatisfaction with the quality of
representation or regret over the litigation strategies pursued does not
constitute incompetence rising to the level of a breach of fundamental justice.
[31]
First, she states, in
essence, the applicant is challenging the litigation strategy that he may or
may not have endorsed. She observes his affidavit is silent on the issue of how
instructed his counsel to proceed and that it was unclear if there was
inadequacy of his counsel or whether the applicant was trying to correct his
previous litigation choices. I cannot accept this argument. It is clear from
Mr. Chaudhary’s affidavit he had discussed the litigation strategy with Mr.
Vuppal who had failed to carry it out (see paragraph 4 of his affidavit).
[32]
Second, counsel for
the Minister argued, while Mr. Vuppal may not have asked many questions, the
gap was filled by the tribunal and by the representative of the Minister. For
example, the IAD member asked the applicant questions related to his age, his
place of birth, the number of years he had lived in India, the citizenship of
his parents, his work history, his education, his plans for future education,
whether he had been on social assistance, his relationship with his brother,
his ability to speak local languages in India, the impact of his removal upon
him and the impact of a removal on his family.
[33]
Counsel for the
Minister raised a number of questions such as what he would do if he was
allowed to remain in Canada, his future career ambitions, questions
about the seriousness of the offences, his remorse for the beatings, his
parents’ reactions to the crimes and his brother’s reaction.
[34]
Counsel for the
Minister states, even if the applicant was inadequately represented, any
inadequacy was cured by the questions put to him by the tribunal and by the
Minister’s representative. She submits, the applicant has failed to establish a
miscarriage of justice rising to the level of a breach of natural justice.
[35]
A review of the
transcript shows the description by counsel for the Minister of the areas
covered in questioning by the tribunal and by the Minister’s representative is
accurate. However, in my view, that questioning did not cure the consultant’s
deficiencies in: (1) not having prepared his case with the applicant and his
parents (interview time with them was less than an hour); (2) not having
covered in chief all of the relevant areas before questioning by others in
order to put his best case forward before questioning by others; (3) not having
asked any follow up questions after the questioning by the tribunal and by the
Minister’s representative to clarify or emphasize answers which the applicant
had given and, in particular, his role during the incident which led to his
conviction of aggravated assault, a conviction which led the tribunal to
conclude was so serious the applicant would likely re-offend and the need to
protect Canadian society from his re-offending required his immediate removal
from Canada without the possibility of a stay with conditions.
[36]
Third, counsel for
the Minister argued the lack of the psychological assessment on his likelihood
to re-offend may not have been done by omission. She argued it was possible
that a psychological assessment may not have assisted the applicant. In my
view, her submission, on this point, is speculative.
[37]
Fourth, she argues
the fact that Mr. Vuppal did not appear for the June 6, 2006 hearing had no
impact on the tribunal’s decision because a reading of the transcript shows the
purpose for the hearing was to discuss the applicant’s sentencing and that the
sentencing had not taken place by June 6, 2006. She adds, contrary to the
applicant’s assertion, no substantive evidence was heard on June 6, 2006 and that
after the sentencing decision had occurred, his consultant addressed the issue
in written submissions.
[38]
My reading of the
transcript does not accord with that of counsel for the Minister. My view is
that the applicant was prejudiced by Mr. Vuppal’s absence because the June 6,
2006 transcript shows:
·
The tribunal and the
Minister’s representative discussed whether at the February 2006 hearing both
he and Mr. Vuppal had made oral submissions on the merits except for
sentencing. The tribunal concluded, after discussion with the Minister’s
representative, that both of them had completed oral submissions except on
sentencing;
·
Whether counsel for the
Minister had asked, at the February 2006 hearing, for dismissal of the
applicant’s appeal before he had the results of the sentencing on the
aggravated assault charge. The tribunal concluded counsel for the Minister had
asked for such a dismissal;
·
An exhibit (R-2) was
entered on that day; and
·
Whether oral
submissions on sentencing should take place or whether written submissions
might suffice was discussed.
[39]
I conclude by finding
the evidentiary record satisfies me the applicant’s representative was incompetent
in the handling of the applicant’s appeal to the IAD and that there was a
miscarriage of justice to the extent it could be said that the applicant had no
meaningful hearing before the IAD which led to the dismissal of his appeal with
the consequence that he could not remain in Canada under strict conditions of a
stay. In my view, the consultant who represented him totally failed to lead any
meaningful or persuasive evidence which might have convinced the tribunal, in
its balancing of relevant factors, a stay was warranted.
[40]
My reading of the
jurisprudence suggests the case at hand is quite similar to Justice Denault’s
decision in Shirwa v. Canada (Minister of Employment and Immigration),
[1994] 2 F.C. 51 where he set aside a decision by the Convention Refugee
Determination Division on the grounds of negligent/incompetent representation
by an immigration consultant. Other comparable cases are Osajie v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1368; Gulishvili v. Canada (Minister of Citizenship and
Immigration), 2002 FCT
1200; Masood v. Canada (Minister of Citizenship and Immigration), 2004
FC 1224; and Taher v. Canada (Minister of Citizenship and
Immigration), 2002 FCT
991.
Other
issues
[41]
Since I have decided
that this judicial review application must be allowed and the matter sent back
to a differently constituted tribunal, I need not and should not decide whether
the tribunal erred on the merits of the applicant’s appeal by giving undue
weight to certain factors or by ignoring evidence.
[42]
It is also
unnecessary for me to decide whether the tribunal itself breached the
principles of fairness.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is allowed, the tribunal’s decision is quashed and the
applicant’s appeal is remitted to a differently constituted tribunal of the IAD
for reconsideration. No certified question was proposed.
“François Lemieux”
________________________
Judge
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