Docket: IMM-1514-15
Citation:
2015 FC 1269
Ottawa, Ontario, November 13, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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AUSTIN ALPHONSO
LEWIS
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Lewis has not been an ideal citizen. Indeed,
he is not a Canadian citizen at all, which is at the heart of his problem. He
has been a permanent resident since 1975, but remains a Jamaican citizen.
[2]
Over the years, he has been convicted of various
drug and other offences. He was ordered deported in 2006. He appealed. In 2009,
the Immigration Appeal Division of the Immigration and Refugee Board of Canada
stayed his removal provided Mr. Lewis abided by various conditions. That stay
was extended both in 2013 and 2014, with substantially the same conditions
remaining in place.
[3]
This is the judicial review of the February 2015
order of a member of the Immigration Appeal Division. The Minister asked that
the stay be extended another year as there were fresh outstanding criminal
charges against him. However, the Member set aside the removal order, which has
the effect of allowing him to come and go as he pleases. The Minister focuses
on paragraphs 22 and 23 of the decision which read:
[22] The question for me is whether
given the positive factors that I have articulated, foremost amongst which is
40 to 43 years in Canada, seven years of no convictions and since 1998 no
reportable offense, whether I should nonetheless extend this stay as a direct
consequence of his breaches of existing conditions. And I have determined that
it makes little economic sense to do so at this stage. If the appellant is
convicted of that offense, assuming it falls within the reportable provision,
the Minister will determine what the Minister wants to do.
[23] If the appellant commits further
criminal offences, I’m sure his very able counsel has informed him of the
changes to the Immigration and Refugee Protection Act, that any sentence
in excess of six months gets him an automatic ride to the airport; automatic,
no appeal. If that does not serve to dissuade this appellant, it is what it is.
However, given the positive factors, to keep this matter going at the expense
of both the Immigration Appeal Division, Canada Boarder Services Agency and
seemingly Legal Aid, makes little sense to me. Therefore I am going to allow
this appeal.
[4]
The Member noted that Mr. Lewis was in technical
default of the conditions imposed upon him. He considered all was outweighed by
the so-called “Ribic factors”, arising from an earlier decision of the Immigration
Appeal Division in Ribic v Canada (Minister of Employment and Immigration,
[1985] IABD No 4, which has set the standard for stays of removal and has been
approved by the Supreme Court in Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.
[5]
The Board had stated that in exercising its
discretion it had to consider all the circumstances of the case, including a)
the seriousness of the offence or offences leading to the deportation; b) the
possibility of rehabilitation; c) the failure to meet the conditions of
admission, which led to the deportation order; d) the length of time spent in
Canada; e) the degree to which the applicant is established; the support
available; and f) the degree of hardship which would be caused by his return to
his country of nationality.
[6]
Although these matters are reviewed on the
reasonableness standard, in this case it is not necessary to decide whether the
decision was otherwise reasonable. There is an issue of procedural fairness
which is outside the scope of judicial review in the sense that no deference is
owed to the decision maker. One might say that the standard of review is
correctness (Canadian Union of Public Employees (CUPE) v Ontario (Minister
of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539).
[7]
It is acknowledged that the economics of the
process were not raised by Mr. Lewis or by the Minister, or by the Member prior
to rendering the decision.
[8]
Natural justice requires that the Minister be
given a fair opportunity to meet the case against him. Indeed, he did not even
know that there was a case, because economic factors were not on the table.
Counsel for Mr. Lewis valiantly pointed out that under subsection 162(2) of the
Immigration and Refugee Protection Act the Board has to deal with all
proceedings before it “as informally and quickly as the
circumstances and the considerations of fairness and natural justice permit”.
This equation of efficiency with economics does not sit well. One only has to
consider the “certificate” cases which have drawn millions of dollars out of
the public purse.
JUDGMENT
FOR REASONS GIVEN;
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review of the
decision of the Immigration Appeal Division, of the Immigration and Refugee
Board of Canada, dated February 11, 2015, is granted.
2.
The matter is remitted back to a differently
constituted panel of the Immigration Appeal Division for reconsideration.
3.
There is no serious question of general
importance to certify.
“Sean Harrington”
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