Docket: IMM-1372-16
Citation:
2016 FC 1245
Ottawa, Ontario, November 8, 2016
PRESENT: The
Honourable Mr. Alan Diner
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BETWEEN:
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CHUN YIP MA
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Applicant
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And
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [Act or IRPA], of a March 7, 2016 decision by the Immigration Appeal
Division [IAD or Tribunal] finding that it did not have jurisdiction to hear the
Applicant’s appeal of his removal order pursuant to section 64 of the Act
[Decision].
[2]
The key issue raised in this case is whether the
Tribunal erred in finding that the Applicant’s nine-month conditional sentence
order [CSO] was “a term of imprisonment of at least six
months” as per subsection 64(2) of the Act, meaning that the Applicant
lost his IAD appeal rights on the basis of serious criminality.
I.
Background
[3]
The Applicant, Chun Yip Ma, was born in Hong
Kong in 1981 and is a citizen of the People’s Republic of China. He was landed
as a permanent resident of Canada in 1994 at the age of thirteen. His
seven-year-old son, his wife, and his extended family now live in Canada.
[4]
In 2003, the Applicant was convicted of
trafficking cocaine in violation of subsection 5(1) of the Controlled Drugs
and Substances Act, SC 1996, c 19. He was sentenced to a nine-month CSO. In
2004, a report was prepared under s 44 of the Act for his inadmissibility under
paragraph 36(1)(a) and he received a “stern warning
letter” indicating that further involvement in criminal activity could
result in his removal from Canada.
[5]
In 2010, the Applicant was convicted for driving
while prohibited in violation of subsection 95(1) of British Columbia’s Motor
Vehicle Act, RSBC 1996, c 318. He received a five month CSO and one year
probation. On September 4, 2014, he was convicted of identity theft under subsection
402.2(1) of the Criminal Code, RSC 1985, c C-46. He received a nine month
CSO and one year probation.
[6]
It was after this conviction that a second s 44
report was written for his 2003 conviction. An admissibility hearing was held
on February 26, 2015 and the Applicant was deemed inadmissible pursuant to paragraph
36(1)(a) for having been convicted of an offence punishable by a maximum term
of ten years, with respect to the 2003 conviction. A deportation order was
issued against him.
[7]
The Applicant filed an appeal to the IAD on
February 26, 2015. The IAD requested submissions as to whether it had
jurisdiction to hear the appeal under s 64 of the Act.
[8]
On October 30, 2015, the Federal Court of Appeal
released Canada (Public Safety and Emergency Preparedness) v Tran, 2015
FCA 237 [Tran FCA], which found that a CSO could be interpreted as a “term of imprisonment” for the purposes of paragraph 36(1)(a)
of the Act.
[9]
On March 7, 2016, the IAD decided it did not
have jurisdiction to hear the Applicant’s appeal. The IAD found at that it was
“bound in this matter by our system of common law and,
in particular, the recent Court decision” (Decision at para 8, referring
to Shehzad v Canada (Citizenship and Immigration), 2016 FC 80 [Shehzad]).
The Tribunal found that Tran FCA and Shehzad were identical on
the relevant points, with the only difference being the length of the CSOs – a difference
that did render the cases “legally distinguishable”
(Decision at para 8).
[10]
The IAD proceeded to summarize Shehzad
and cited the following three key paragraphs:
In its decision, the IAD examined, which
were then, conflicting lines of jurisprudence; and, followed the line of
jurisprudence which it thought commended itself most to this case. The IAD held
that a one-year conditional sentence is a term of imprisonment of at least six
months; and, pursuant to paragraph 64(2) of the [Act], it did not have the
jurisdiction to hear the appeal of the Removal Order.
Given the recent decision of the Federal
Court of Appeal in Tran, above, the IAD’s decision is reasonable.
Consequently, the application for judicial
review is dismissed.
(Shehzad at paras 17-19).
[11]
The IAD concluded it was bound by Shehzad
in that it lacked appellate jurisdiction, and thus dismissed the appeal
(Decision at paras 11-13).
II.
Issues
[12]
The Applicant raises two substantive issues in
this case, other than the applicable standard of review (which is discussed in
the Analysis section below):
(i)
whether the Tribunal erred in finding itself
bound by Shehzad, rather than fully considering whether a CSO
constituted a term of imprisonment in this particular case, given the reasons
in Tran FCA; and
(ii) whether the Tribunal erred in failing to consider important factors,
including that the conviction was from 2003, and could not have resulted in a
loss of appeal until the law was amended in 2012.
[13]
These two issues can rather be stated as a single
question: did the IAD fetter its discretion by finding itself bound by Shehzad,
thereby failing to conduct an independent assessment of the facts and law?
III.
Analysis
[14]
An administrative tribunal cannot use a previous
decision to fetter its discretion (Hopedale Developments Ltd v Oakville
(Town) (1965), 47 DLR (2d) 482 (ONCA) at 486, cited in Bell Canada v
Canada (AG), 2011 FC 1120 at paras 88-89). While permitted to rely on
previous decisions, it must “give the fullest hearing
and consideration to the whole of the problem before it.” As stated in Stemijon
Investments Ltd v Canada (AG), 2011 FCA 299 at para 24, “[a] decision that is the product of a fettered discretion
must per se be unreasonable”.
[15]
Otherwise said, the fettering of discretion is a
reviewable error under either a correctness or reasonableness standard of
review; it will result in the decision being quashed, regardless of the
standard of review applied (Gordon v Canada (AG), 2016 FC 643 at paras
27-28).
[16]
Looking to Shehzad was certainly
justifiable, but it was only part of the IAD’s task in exercising its
discretion. The IAD omitted another part of its task, namely to consider the
facts and circumstances of the case before it -- even if briefly. Instead, the
Tribunal simply adopted the previous decision of Shehzad, without
any examination of the Applicant’s underlying facts or circumstances. The
Tribunal unreasonably failed to turn its mind to any of the facts that underlay
the Applicant’s 2003 CSO, and apply them to the law, even in a minimal way, as
was the Tribunal’s duty in light of Justices Gauthier’s decision in Tran FCA,
as well as Chief Justice McLachlin’s decision in Febles v Canada
(Citizenship and Immigration), 2014 SCC 68.
[17]
First, in Tran FCA, Justice Gauthier
signalled that the IAD had discretion in these matters, when it raised the
concept “flexibility” in determining whether a
CSO constitutes a term of imprisonment of more than six months:
Obviously the deference granted to
administrative decision makers is in part meant to give them flexibility to
adjust to new arguments and circumstances. It is thus obviously open to the
ID and the IAD to adopt another interpretation should they believe that it is
warranted by the inconsistent consequences described above.
Tran FCA at
para 87 [emphasis added].
[18]
Second, in her majority decision in Febles v
Canada (Citizenship and Immigration), 2014 SCC 68, Chief Justice
McLachlin also pointed to the notion of a range of possibilities, in the
context of sentencing outcomes. Although Febles addressed different
elements in the intersection between immigration and criminal law, the Chief
Justice’s words are nonetheless instructive to show that in the context of
exclusion (Article 1F(b)), assessments of a serious crime under
immigration law can depend on the nature of the sentence meted out. Those
words are emphasized below:
The Federal Court of Appeal in Chan v.
Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.),
and Jayasekara has taken the view that where a maximum sentence of ten years or
more could have been imposed had the crime been committed in Canada, the crime
will generally be considered serious. I agree. However, this
generalization should not be understood as a rigid presumption that is
impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C.
1985, c. C-46, has a large sentencing range, the upper end being ten years or
more and the lower end being quite low, a claimant whose crime would fall at
the less serious end of the range in Canada should not be presumptively
excluded. Article 1F(b) is designed to exclude only those whose
crimes are serious. The UNHCR has suggested that a presumption of serious
crime might be raised by evidence of commission of any of the following
offences: homicide, rape, child molesting, wounding, arson, drugs trafficking,
and armed robbery (Goodwin-Gill, at p. 179). These are good examples of
crimes that are sufficiently serious to presumptively warrant exclusion from
refugee protection. However, as indicated, the presumption may be rebutted in a
particular case. While consideration of whether a maximum sentence of ten
years or more could have been imposed had the crime been committed in Canada is
a useful guideline, and crimes attracting a maximum sentence of ten years or
more in Canada will generally be sufficiently serious to warrant exclusion, the
ten-year rule should not be applied in a mechanistic, decontextualized, or
unjust manner.
Febles at
para 62.
[19]
In another recent case, coincidentally of the
same name, Tran c Canada (Citoyenneté et Immigration), 2016 FC 1065 [Tran
2016], Justice Shore of this Court followed this dictum of Tran FCA,
holding that the reasoning underlying the exercise of discretion must be
sufficient (at para 23):
In this case, although the IAD is not required
to interpret this provision differently, its decision-makers must nevertheless
provide sufficient reasons for their decisions.
[20]
While Justice Shore framed Tran 2016 as
being about sufficiency of reasons, it hinged on the IAD fettering its
discretion. Justice Shore’s bottom line was that the IAD had to look at the
specific facts before it could properly exercise its discretion:
The IAD should have allegedly considered the
applicant’s specific case and provided sufficient reasons for its decision in
order to ensure procedural fairness.
Tran 2016 at
para 25.
[21]
In Tran FCA, although ultimately finding
that the decision-maker’s conclusion regarding the CSO as a term of term of
imprisonment was a reasonable outcome, the FCA pointed out an example of the
inconsistent circumstances referred to in the para 87 quotation above, namely “when one considers that the IRPA treats a conditional
sentence of imprisonment of seven months more severely than a five months jail
term.” (Tran FCA at para 81). This is why Justice Gauthier found
that other interpretations of a CSO were possible.
[22]
Turning back to Tran 2016, it suggests,
in a similar vein, that to properly exercise discretion under subsection 64(2)
of the Act, the IAD must consider whether the CSO meted out by the Criminal Court
could reasonably be construed as “a term of
imprisonment of at least six months or that is described in paragraph 36(1)(b)
or (c)”. In this respect, in Tran 2016, Justice Shore not only
relied on Tran FCA, but also on Febles. Similarly, in this case,
the IAD erred in blindly applying the outcome in Shehzad, without
considering the actual facts of the case before it, including whether the CSO
constituted the requisite term of imprisonment. To do so amounted to fettering
its discretion.
[23]
The Respondent, in post-hearing submissions that
considered both Tran 2016 and Flore v Canada (Citizenship and
Immigration), 2016 FC 1098 [Flore], another very recent case of this
Court, asserted that the IAD’s finding in this case was entirely reasonable. In
Flore at paras 30-31, Justice Tremblay-Lamer rejected that it was
necessary to take humanitarian and compassionate factors into account:
The applicant further submits that the IAD
failed to consider H&C factors and failed to provide the applicant an
opportunity to make his case as to the serious nature of the applicant’s crime.
I disagree.
The seriousness of the crimes was not
relevant to the IAD’s conclusion that the applicant was not entitled to a right
of appeal because subsection 64(2) of the Act expressly states that serious
criminality – which is the trigger for inadmissibility of appeal pursuant to
subsection 64(1) of the Act – is expressly defined as a crime having warranted
a term of imprisonment of at least six months. The crucial determination was
that a CSO was a term of imprisonment. I agree with the respondent that loss of
an appeal to the IAD means the loss of an opportunity to have that tribunal
take into account H&C factors. It is based on objective statutory criteria
that does not include considering personal circumstances.
[24]
However, there is a fundamental distinction
between the IAD’s process in coming to a decision in Flore, and in this
case. In Flore, the IAD invited “fresh
submissions” from the parties in light of Tran FCA. The IAD
engaged with these submissions and decided, only after considering them, that
the eighteen-month CSO was a term of imprisonment of more than 6 months for the
purposes of subsection 64(2), thus excluding appeal rights. This was all
reviewed on a reasonableness standard by Justice Tremblay-Lamer.
[25]
In the present case, the IAD chose not to
analyse the underlying facts. Rather, the Tribunal simply said it was bound by
the common law and Shehzad. This was an improper approach. As
explained above, each case involving a CSO must be assessed individually. If
this were not the case, Tran FCA would not have held (as quoted above
per para 87) that there may be other defensible interpretations of the CSO
equivalency issue, and it is thus open to the IAD to adopt another
interpretation should they believe that it is warranted by “inconsistent consequences”.
[26]
In short, after Tran (FCA), the Tribunal
must do more than simply apply a CSO precedent case without alluding to the
factual backdrop or circumstances of the case before it. Indeed, in this case,
the conviction and resulting CSO were handed down nearly 15 years ago. At that
time, there would have been no loss of appeal rights given the legislation of
the day; the IAD amendments occurred a decade after the conviction.
[27]
Furthermore, the Applicant provided detailed
submissions as to why any loss of IAD appeal rights from that 2003 offense and
CSO would be “inconsistent and absurd” (Certified
Tribunal Record at 62-84). By failing to engage in any meaningful way with
these submissions, or otherwise with the underlying facts and circumstances, by
rather merely applying Shehzad, the IAD fettered its discretion, and in
doing so, committed the same fatal flaw as in Tran 2016.
IV.
Proposed Questions for Certification
[28]
The Applicant proposed the following three
questions:
- Is a conditional
sentence order imposed under the Criminal Code, RSC 1985, C-46 “a term of imprisonment” under subsection 64(2)
of IRPA when interpreted on a correctness standard of review?
- Is the
Immigration Appeal Division legally bound by a decision of the Federal
Court, which has upheld another decision of the IAD on the same issue on a
standard of reasonableness (i.e. does it not then have discretion), in
particular when the Federal Court of Appeal has stated “there may clearly be other defensible interpretations”?
- Where the
Immigration Appeal Division has determined that it does not have
jurisdiction over an appeal based on its interpretation of a term in s. 64
of IRPA (here, “term of imprisonment”), is this
a true question of jurisdiction that should be decided on a standard of
correctness?
[29]
These questions, all based on standard of
review, are not dispositive of my Reasons provided above, and will therefore
not be certified.
V.
Conclusion
[30]
In light of the above, this application for
judicial review is granted. The matter will be returned for reconsideration by
a different decision-maker, to the extent one is available.
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