Docket: IMM-4124-16
Citation:
2017 FC 427
Ottawa, Ontario, May 1, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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MEDZIT ISMAILI
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [Act or IRPA], of an Immigration Division [ID]’s September 12, 2016
negative decision [Decision], finding that there was no abuse of process, that
the Applicant is inadmissible in Canada, and ordering removal accordingly. For
the reasons explained below, I am dismissing this judicial review.
[2]
The Applicant is a 60-year-old former Canadian
citizen and current foreign national who was born in Yugoslavia. He became a
Canadian permanent resident in 1983, and a citizen in 1987, but failed to
inform Canadian officials of a past 1980 armed robbery conviction in the United
States.
[3]
In 1999, after the 1980 conviction was discovered
by Canadian authorities, the Applicant was made aware of the Minister of
Citizenship and Immigration [Minister]’s intent to revoke his citizenship.
Citizenship revocation proceedings ensued, with the Minister filing a statement
of claim in Federal Court in 2006. Pursuant to a consent agreement including
Minutes of Settlement, the Court held, and the Applicant agreed, that he
obtained his Canadian citizenship by knowingly concealing his 1980 conviction.
This allowed the Minister to recommend citizenship revocation before the
Governor-in-Council [GIC], which ultimately occurred some years later: on
December 5, 2013, the Applicant received notification by way of letter that his
citizenship had been revoked. Therefore, in sum, the citizenship revocation process
lasted a total of 14 years (1999-2013). It is noted that the Applicant did not
seek redress before this Court of this lengthy part of the process, which forms
the majority of the alleged abuse of process delays now at issue (14 of 17
years).
[4]
After his revocation, the Applicant ceased to be
Canadian and became a foreign national, making him subject to IRPA.
Consequently, a section 44 report was made and referred to the ID, leading to
the 2016 admissibility process under sections 44-45, which is the subject of
this judicial review.
[5]
Before the ID, the Applicant argued that the
17-year delay between the first citizenship revocation notice in 1999 and the
admissibility proceedings before the ID in 2016 amounted to an abuse of process
warranting a stay of proceedings. The ID considered this argument, but relying
on Torre v Canada ( Citizenship and Immigration), 2015 FC 591 at para 32
[Torre FC], held that it could only consider the delay in time from
which the decision was made to prepare the section 44 report, a 2 year period.
The ID, relying on the Supreme Court’s leading case in Blencoe v British
Colombia (Human Rights Commission), 2000 SCC 44 [Blencoe], found
that this delay in the admissibility process, while raising “serious doubts with regards to the efficacy of the Agency
entrusted with Canada’s Immigration enforcement program”, did not amount
to an abuse of process. As a result of facts agreed to, the ID found that the
Applicant was inadmissible in Canada for serious criminality and ordered
removal. Those findings are not challenged by the Applicant.
[6]
The Applicant raises two issues, both of which
relate to the ID refusing to issue a stay of proceedings based on delays within
the revocation proceedings. First, the Applicant argues that the ID should have
considered the full 17 year period, and not only the last two years of the
process from the time that the subsection 44(1) report was prepared, to its
subsection 44(2) referral to the ID. Second, the Applicant argued that the ID
erred in finding that the lengthy process was not abusive, considering the
medical evidence on the record proving prejudice in the form of chronic
depression and other suffering (including of the family).
II.
Analysis
[7]
The Court will first consider whether or not the
ID had jurisdiction to consider the abuse of process arguments underlying the
remedy sought, which was a stay of proceedings, and second, whether an abuse of
process occurred on the facts and the law. The parties agree that the
applicable standard of review is correctness (Torre FC at para 17).
A.
The ID’s jurisdiction to grant a permanent stay
of proceedings based on an abuse of process for unreasonable delays
[8]
The issue of whether the ID has jurisdiction to
grant a stay of proceedings for abuse of process due to unreasonable delays has
been addressed by our Court in Torre FC at paras 18-25, where Justice
Tremblay-Lamer held that the ID did not err when it declined to hear an
application for stay of proceedings on jurisdictional grounds. After reviewing
two key cases she identified regarding the Court’s refusal to allow the ID to
consider stay of proceeding motions for abuse of process (Hernandez v Canada
(Citizenship and Immigration), 2005 FC 429 [Hernandez] and Wajaras
v Canada (Citizenship and Immigration), 2009 FC 200 at para 11 [Wajaras]),
as well as the Supreme Court’s Blencoe, she concluded the following at
paragraphs 24 and 30:
Allowing the ID, therefore, to examine the
issue of whether the delay before the admissibility hearing was excessive would
amount to giving it the jurisdiction to examine the individual’s ability to
make a full answer and defence and the consequences of the removal order for
the individual, issues that are at the centre of a debate on unreasonable
delay. Following this review, the ID would then have to examine whether it
should grant a stay of the proceeding it is obliged to hold quickly.
[…]
It is my opinion that for the delay to
qualify as an abuse of process, it must have been part of an administrative or
legal proceeding that was already under way.
[9]
For the reasons that follow, I see no reason to
depart from the prevailing view of this Court in Torre FC and the case
law cited therein, as well as that of the Federal Court of Appeal, which
declined to address the certified question and dismissed the appeal in Torre
v Canada (Citizenship and Immigration), 2016 FCA 48 [Torre FCA]).
[10]
In Torre, the applicant was a permanent
resident in Canada, arrested for drug trafficking in 1996. Seventeen years
later, in 2013, two section 44 reports were prepared and referred to the ID for
an admissibility hearing. The ID refused to hear the applicant’s motion for a
stay of proceedings for unreasonable delay, holding that it lacked jurisdiction
to do so. That said, the ID noted that the lapse of time was not fatal to the conduct
of the hearing anyway, because the applicant’s recollection of the 1996 arrest
was excellent. The ID found the applicant to be inadmissible and ordered
removal.
[11]
Upon judicial review, it was argued that the ID
erred in its decision to dismiss the applicant’s stay of proceedings motion for
unreasonable delays on jurisdictional grounds. Justice Tremblay-Lamer found
that, in light of the IRPA’s legislative framework, and in spite of its
authority to consider questions of law (see IRPA, subsection 162(1)), the ID
has little discretion in that it must “hold an
admissibility hearing quickly, and if it finds the person inadmissible, it must
make a removal order” (at para 22, relying on Hernandez). As also
mentioned above, she countenanced Justice Barnes’ holding in Wajaras that
the ID hearing is not the appropriate forum to consider compassionate and
humanitarian-based arguments.
[12]
Two cases released after both Torre FC and
FCA further support the proposition that the latter remains good
law regarding the ID’s very limited ability to consider abuse of process.
[13]
First, in Kazzi v Canada (Citizenship and
Immigration), 2017 FC 153 at para 53 [Kazzi], Justice Gascon wrote:
I note that it is not the ID’s role to
determine if the process leading to the inadmissibility report was procedurally
unfair, as the only question for the ID is whether the person is inadmissible,
and the ID has “no other option than to make a removal order against the
foreign national or the permanent resident i[f] he or
she is inadmissible” […]
[14]
Second, in Sharma v Canada (Public Safety and
Emergency Preparedness), 2016 FCA 319 at para 24 [Sharma], Justice
de Montigny held that:
Considering that, once referred, the options
of the ID appear to be very limited since it “shall make” a removal order if
satisfied that the foreign national or the permanent resident is inadmissible, it
would appear that the only discretion (albeit very limited) to prevent a
foreign national or permanent resident from being removed rests with the
immigration officer and the Minister or his delegate [during the preparation
and/or referral of the s. 44 report] [emphasis added].
[15]
He also noted at para 25 that an ID removal
order is not the end of the road in the deportation process:
It is noteworthy that preparing a report
under subsection 44(1) and referring it to the ID pursuant to subsection 44(2)
does not necessarily entail removal. For instance, one may apply to the
Minister for an exemption on humanitarian and compassionate grounds (IRPA, s.
25) upon the issuance of a deportation order, an opportunity which the
appellant availed himself of. A pre-removal risk assessment (IRPA, s. 112) is
another option available in such circumstances. Both of these processes allow
for the provision of additional submissions that will be taken into account by
the particular decision-maker. The subsection 44(1) report, the subsection
44(2) referral, and the ID’s removal order are thus not necessarily
determinative of whether the appellant will be removed from Canada, given the
possibility of seeking relief via other provisions of the Act [emphasis
added].
[16]
It is therefore important to keep in mind that
after an inadmissibility report is prepared and referred under section 44, the
ID’s sole purpose is to determine whether the permanent resident or foreign
national is inadmissible, and, if so, order removal per subsection 45(d). If
the ID confirms inadmissibility (in this case, for serious criminality) under
subsection 45(d), IRPA allows for no appeal before the Immigration Appeal
Division. Reading in a broader function for the ID would run counter to the
role that Parliament assigned to it (Torre FC at para 25).
[17]
The Applicant nevertheless relies on a wide
range of administrative decisions from the ID and case law from this Court in
support of his contention that the ID has jurisdiction to consider abuse of
process arguments. The Applicant argues that Torre FC should be
revisited because its analysis is brief and other decisions from this Court
have concluded differently.
[18]
I disagree, seeing no flaws in Justice
Tremblay-Lamer’s reasoning. These administrative decisions are not
binding on this Court and in any event they were rendered pre-Torre, Sharma
and Kazzi. The same is true of certain other Federal Court decisions
presented by the Applicant: they have either been surpassed by the case law, or
are distinguishable on their facts.
[19]
For instance, first, in Magalong v Canada
(Citizenship and Immigration), 2014 FC 966 at para 53, Justice Gagné stated
in obiter that the applicant could seek “from the ID a new
stay of that hearing until he is no longer on probation”. There, the Applicant
sought a mandamus writ to allow him to swear his citizenship oath
notwithstanding ineligibility to take that oath resulting from a criminal
conviction. Clearly, the Court’s obiter statements arise in an entirely
different context.
[20]
Second, the Applicant raises Montoya v Canada
(Attorney General), 2016 FC 827, a case where the applicant challenged a
GIC decision revoking his citizenship on the basis of old convictions in the United
States through a subsequent fingerprint match. In a consent order (similar to
this case), the Applicant agreed that the Minister may proceed to report to the
GIC recommending citizenship revocation. The Court found that there was no
evidence of significant prejudice arising from the long administrative delays
(also many years, like in the present case), and any such prejudice would only
materialize at the point of being deported, a fact which had not yet been
determined. Montoya cited Blencoe and certain other cases, but
not Torre, Sharma and Kazzi. That was likely because, in
the case of Torre, the application came at a different juncture
(challenging the GIC recommendation), unlike in the present case, and with
respect to Sharma and Kazzi, before they were issued. In sum, Montoya
does not speak to the ID’s jurisdiction to consider a remedy for abuse of
process, and therefore provides little assistance to the Applicant’s position,
as it arose in entirely different administrative proceedings than the present
case.
[21]
Third, the Applicant relies on Chabanov v
Canada (Citizenship and Immigration), 2017 FC 73 at para 85 [Chabanov],
a judicial review of a citizenship revocation, where Justice Strickland found
that the Applicant’s section 7 Charter arguments were premature. In Chabanov,
the Applicant’s section 7 submissions included the argument that removal would
place the Applicant’s life, liberty and security at risk (at para 32).
Therefore, the constitutional challenge was not limited to the delay; rather,
it was interwoven with removal. Justice Strickland consequently found the section
7 arguments to be premature, as the inadmissibility process had not commenced
and, more importantly, it was unclear whether a report would be prepared and
referred to the ID thereafter. To say that Chabanov stands for the
proposition that abuse of process for unreasonable delay arguments should only
be considered at time of removal, thus giving the ID the jurisdiction to do so,
is a mischaracterization of that decision.
[22]
The final two cases on which the Applicant
relied in rejecting the Torre line of reasoning are Chambers v Canada
(Citizenship and Immigration), 2016 FC 1407 at paras 2-3 [Chambers],
and Clare v Canada (Citizenship and Immigration), 2016 FC 545 [Clare].
However, neither decision applies to the present case.
[23]
Chambers
addressed three related judicial reviews brought before the Federal Court: (i)
the officer’s decision to prepare a report pursuant to subsection 44(1) of the
IRPA to the Minister of Public Safety and Emergency Preparedness’ delegate;
(ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the
IRPA to refer the applicant to an admissibility hearing before the ID; and
(iii) the ID’s removal order from Canada. The preliminary issue before the
Court was whether leave was separately required for each administrative
decision, or if leave granted for the ID’s removal order (administrative
decision (iii)) allowed the Court to consider administrative decisions (i) and
(ii). Justice Bell found that three separate leave applications were not
required. A similar approach was taken in Clare. Thus, neither case is
helpful to the Applicant, focusing on a procedural aspect of how applications
arising from section 44 and 45 inadmissibility decisions should properly be
brought before the Court.
[24]
In short, I find the Applicant’s case law
summarized above to be distinguishable; none of the cases speaks to the ID’s
(very limited) discretion to consider abuse of process arguments for the
purposes of granting a stay of proceedings, or to have commented on the
underlying purpose of section 45 and the ID’s resulting role, as did Torre,
Kazzi, and Sharma.
B.
Correctness of the ID’s decision to find no
abuse of process
[25]
At the hearing, the Applicant argued that by
upholding the ID’s decision, and given the case law he raises, he is in a
no-win, catch-22, situation. That is because, according to him, the case law
instructs that one must wait until deportation, and it is premature to raise
abuse of process arguments earlier in the process because they would be
rejected, such as in Montoya and Chabanov.
[26]
I do not accept that those cases prevent the
raising of the abuse of process argument earlier in the process. As explained,
those cases failed for different reasons. One only has to look to a case such
as Canada (Citizenship and Immigration) v Parekh, 2010 FC 692 [Parekh],
where the abuse of process arguments that failed in Torre FC were
successful. This is, at least in large part, because they were made earlier in
the process at the time of citizenship revocation. In Parekh, the Applicant
met all four grounds of Blencoe and the citizenship revocation
proceedings were stayed. Justice Tremblay-Lamer, who later wrote Torre FC,
held in Parekh at para 56:
In these circumstances I find that the
delays which have marred these proceedings are inordinate and indeed
unconscionable. Nothing in the circumstances of the case
justified them. They are not the consequence of the
complexity of the case or of any dilatory tactics employed by the Defendants,
but of bureaucratic indolence and failure to give the matter the attention it
deserved given the rights and interests at stake. The evidence clearly
establishes that the Defendants had repeatedly admitted to the
misrepresentations and that all the information necessary to proceed with the
revocation of their citizenship was already available to CIC.
[27]
In the present case, the Applicant chose not to
bring a similar application when the bulk of the delays took place: most of the
time elapsed during the course of the citizenship revocation, from the time of
the notice in 1999, until the revocation at the end of 2013.
[28]
The ID held that it was too late to now
challenge those 14 years: the train had already left the station, and for all
the reasons explained above, it was too late for the ID to bring it back. It
was simply outside of the scope of its limited discretion. Indeed, by the time
the Applicant was before the ID, he was no longer a Canadian citizen, but
rather a permanent resident who had been found inadmissible, and it was that
determination (along with any attendant delays), that was within the purview of
the ID.
[29]
Turning to Torre FC once again, Justice
Tremblay-Lamer, relying on Justice Bastarache’s reasons in Blencoe at
paras 120 and 132 and Justice Nadon’s in Canada (Minister of Citizenship and
Immigration) v Katriuk, [1999] 3 FC 143 at para 23, held that “the only delay this Court should consider in order to
determine whether there was an abuse of process is the delay between the
decision made by the Minister to prepare a report under section 44 of the IRPA
and the ID’s admissibility finding. Any other period of time should not be used
to calculate an unreasonable delay resulting in an abuse of process” (Torre
at para 32).
[30]
To that end, I agree that when this Court must
decide whether an abuse of process merits a stay of admissibility proceedings
before the ID, the clock starts when the immigration officer decides to prepare
a report under subsection 44(1) of IRPA (Torre at para 32). Here, the time
between the decision to prepare the section 44 report was made and the hearing
before the ID was approximately two years. While a two-year delay cannot be
considered speedy and indeed, as noted by the ID, may reflect poorly on the
Minister, the delay does not taint the entire admissibility process or damage
the public interest of fairness, nor am I convinced based on the evidence on
the record that the two-year delay viewed in isolation was the cause of the
Applicant’s health-related issues. Therefore, the threshold of prejudice, in
the relevant two year period, has not been established. Indeed, it is important
to highlight that the Supreme Court in Blencoe at para 120 held that
abuse of process findings will only be made in the clearest of cases and rarest
of circumstances. This applies equally to the evaluation of both the quantum of
time, and the level of prejudice suffered, both of which in this case were
neither the clearest or rarest of circumstances.
III.
Conclusion
[31]
I find that the ID made no errors in its
decision to refuse to grant a stay of proceedings, because (i) no abuse of
process occurred – at least during the period which was properly before the
Board, and (ii) the Applicant does not challenge the ID’s inadmissibility
findings. While I sympathize with the Applicant, I am simply unable to find
that his circumstances meet the test set out in Blencoe, and therefore
cannot conclude that they amount to an abuse of process. Consequently, the
removal order made against him stands. This application for judicial review is
dismissed. No questions were submitted for certification, which I agree is the
appropriate position given the factual backdrop.
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