Docket: IMM-1913-15
Citation:
2016 FC 545
Toronto, Ontario, May 16, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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RAJ KAMAL CLARE
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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
I.
Overview
[1]
Mr Raj Kamal Clare, a citizen of India, obtained
landed immigrant status in Canada in 2004. Soon thereafter, he was arrested in
the United States in connection with a drug smuggling operation. In 2011, he
was convicted in the US of conspiracy to import marijuana. After serving his
sentence of two years, he was deported to India.
[2]
Mr Clare returned to Canada in 2014. He was the
subject of a report issued under s 44(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] (see Annex for provisions cited). The
report found him inadmissible to Canada for serious criminality, according to s
36(1)(b) of IRPA, citing his US conviction for conspiracy to import
drugs. It concluded that the US offence equated to the offence of importing and
exporting a controlled substance under s 6(1) of the Controlled Drugs and
Substances Act, SC 1996, c 19 [CDSA], punishable by a maximum sentence of
life in prison.
[3]
Based on the report, the Minister referred the
matter to the Immigration Division [ID], under s 44(2) of IRPA, for a hearing
on the issue of his inadmissibility to Canada. Before the hearing took place,
Mr Clare received a Notice of Amendment to the report. The revised version
replaced the reference to s 6(1) of the CDSA with a reference to s 465(1)(c)
of the Criminal Code, RSC 1985, c C-46, a provision that imposes
liability on a person who is part of a conspiracy to commit a crime. The revised
version did not set out the underlying crime, but the Notice did state that the
change did not affect the substance of the report and that a fresh referral to
the ID was unnecessary.
[4]
At the ID hearing, the amended report was
presented to Mr Clare, and his counsel stated that he was prepared to proceed
with the hearing. However, Mr Clare filed a preliminary motion arguing that the
s 44(2) referral was defective because it wrongly cited s 36(1)(a) of
IRPA, rather than the appropriate s 36(1)(b). The ID found that the
error was merely typographical and that it did not affect the validity of the
referral.
[5]
Mr Clare also argued that the s 44(1) report
itself was defective because it merely cited a general provision relating to
liability for conspiracy, and failed to identify the nature of the alleged conspiracy.
The ID found that the report should have included a reference both to s 6(1) of
the CDSA and s 465(1) of the Criminal Code in order to identify properly
the equivalent Canadian offence. However, it found that the error was not fatal
given the overall context. In addition, it found that the amendment did not
amount to a breach of natural justice.
[6]
Mr Clare challenges those findings in this
judicial review. He asks me to quash the ID’s decision to issue a deportation
order against him, and to order another panel to reconsider his case.
[7]
I can find no basis for overturning the ID’s
decision and will, therefore, dismiss this application for judicial review. The
ID’s reliance on the amended report was not unreasonable, and it did not cause
any unfairness to Mr Clare.
[8]
There are two issues:
1.
Was the ID’s reliance on the amended report
unreasonable?
2.
Did the ID breach principles of natural justice
by admitting the amended report?
II.
Issue One - Was the ID’s reliance on the amended
report unreasonable?
[9]
The Minister raises a preliminary issue with
regards to the application, arguing that Mr Clare is attempting an
impermissible collateral attack on the Minister’s decisions through this application
for judicial review of the ID’s decision. According to the Minister, in order
to question the propriety of the s 44(1) report and the s 44(2) referral, Mr
Clare had to seek judicial review of both of those decisions separately and in
addition to this application. The Minister points to the decision of this Court
in Collins v Canada (Minister of Citizenship and Immigration), 2009
CanLII 16327 (FC) at pp 2-3 where Hansen J stated, in obiter, that the
applicant in that case was attempting an indirect attack on the validity of the
report through a judicial review of the ID’s decision.
[10]
I disagree. While it was open to Mr Clare to
seek judicial review of those other decisions, it was not necessary to do so in
order to challenge the ID’s decision on inadmissibility. The Court can assess
the reasonableness of that decision with reference to the antecedent events –
the s 44(1) report and the s 44(2) referral – without necessarily having before
it separate challenges to those decisions. In some cases, applicants have
challenged multiple decisions through separate applications, but I do not
interpret them as requiring applicants to do so in order to challenge the ID’s
decision on inadmissibility (eg, Hernandez v Canada, 2007 FC 725).
Further, while the Court in Collins concluded that the applicant in that
case should have brought a separate application to challenge the report and
referral, I find that, in the circumstances before me, it was not necessary for
the applicant to do so.
[11]
Mr Clare submits that the ID erred by relying on
the amended report because its jurisdiction arises from a valid referral from
the Minister based on a s 44(1) report. Here, however, there was no referral
from the Minister based the amended report, only the original referral which
contained a different description of the alleged Canadian equivalent offence.
The Minister was not given an opportunity to decide whether to refer the matter
to the ID based on the revised report. Therefore, Mr Clare says, the ID
unreasonably relied on the amended report.
[12]
I disagree.
[13]
When a s 44(1) report is amended, it need not be
submitted to the Minister for a fresh determination on a referral to the ID, so
long as the amendment conforms generally to the description of the alleged
illegal conduct in the original report and identifies an offence that is
punishable by a maximum of at least 10 years’ imprisonment (Uppal v Canada
(Minister of Citizenship and Immigration), 2006 FC 338 at para 45). The
question is whether the amendment is so significant that it requires a fresh
consideration by the Minister about whether to refer the question of
inadmissibility to the ID. In my view, looking at the amendment in context,
there could have been no confusion about the basis of the inadmissibility
allegation.
[14]
Mr Clare was convicted in the US of conspiracy
to import drugs. The original s 44(1) report referred to the Canadian offence
of importing or exporting drugs while the amended report referred to liability
for conspiracy. There can be no doubt that the alleged conspiracy referred to
in the amended report was a conspiracy to import narcotics. The report itself
stated that the amendment did not represent a change in the substance of the original
report. In the circumstances, the ID reasonably relied on the amended report
because there was no substantive change in the description of the offence on
which it was based. I agree with the ID that it would have been preferable if
the amendment had not erased the reference to s 6(1) of the CDSA but, in the
circumstances, there could have been no confusion about the basis of the
inadmissibility allegation.
III.
Issue Two - Did the ID
breach principles of natural justice by admitting the amended report?
[15]
Mr Clare maintains that a person in his
circumstances is entitled to be informed of the specific offence on which an allegation
of inadmissibility is based so that he or she can make an informed response to
it. Here, Mr Clare submits, the amended report cited a different basis for
liability from the original and failed to specify the underlying offence
supporting the allegation of criminal conspiracy.
[16]
In my view, Mr Clare was treated fairly. He and
his counsel were made aware of the amendment to the report at the outset of the
hearing and they agreed to proceed. In addition, through counsel, Mr Clare presented
the ID with his objections to the amendment, and the ID responded to them.
[17]
In short, Mr Clare was put on notice of the
allegations against him, including the substance of the s 44(1) report and the
Minister’s referral, and he was given a reasonable opportunity to address them.
He received fair treatment.
IV.
Conclusion and Disposition
[18]
In my view, the ID reasonably concluded that Mr
Clare was inadmissible to Canada based on the amended s 44(1) report and the s
44(2) referral. Further, the ID treated him fairly by providing him with notice
and an opportunity to make submissions on the amended report. Therefore, I must
dismiss this application for judicial review. No question of general importance
arises.
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