Date: 20021223
Docket: IMM-5847-01
Neutral citation: 2002 FCT 1306
OTTAWA, Ontario, this 23rd day of December, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
LOVELL WILLIAMS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review filed pursuant to s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The application concerns a decision of the Immigration Appeal Division ("IAD") of the Immigration and Refugee Board ("IRB"). IAD member Daniele D'Ignazio (the "member") signed a decision on December 7, 2001 denying the applicant's motion to reopen his appeal, which was dismissed. The effect of the decision was to permit the respondent to deport the applicant to Grenada.
ISSUE
[2] Did the IAD fail to exercise its jurisdiction properly by failing to consider relevant evidence that ought to have been considered in deciding whether or not to reopen the appeal?
[3] For the following reasons, this application for judicial review shall be dismissed.
BACKGROUND
[4] A complete copy of the reasons has been included with the Applicant's Record ("AR") (pages 8 through 13).
[5] The applicant is a citizen of Grenada. He arrived in Canada as a Landed Immigrant in 1986, when he was eight years of age. He had been sponsored by his mother. His mother and two of his brothers reside permanently in Canada; a third brother lives in the United States. The applicant has no contact with his father and has no immediate family in Grenada.
[6] The applicant has an extensive criminal record in Canada. In paragraph 5 of his affidavit, he lists the offences of which he had been convicted during the five-year period prior to the launching of his application. The offences include theft, robbery, break and enter and possession of narcotics. None of his convictions led to imprisonment for longer than six months.
[7] At the time at which the current judicial review application was launched, the applicant had just served a 50-day term of imprisonment for possession of a narcotic. He had been convicted of that offence in October 2001 and released at the end of November 2001.
[8] The applicant met Karen Aretha Marks ("Marks") in 1997 and married Marks in May 2001. That same month, their daughter was born in Toronto.
[9] The alleged procedural miscues date back to March 2000. On March 6, 2000, a Notice to Appear ("Notice") was sent by the IAD to 4323 Brandon Gate in Mississauga, Ontario. The Notice commanded the applicant to attend at the IAD on April 14, 2000 in order to set a date for his appeal. The applicant claims never to have received that notice, even though he resided throughout the 2000 calendar year at the Mississauga address to which the letter was sent.
[10] Following the failure of the applicant to report to the IAD on April 14, 2000, the IAD declared his appeal abandoned. On November 16, 2001, the applicant served and filed a motion seeking an order reopening the appeal. This motion was dismissed by the IAD on December 7, 2001.
RELEVANT RULES AND STATUTORY PROVISIONS
[11] Rule 27 of the Immigration Appeal Division Rules (the "Rules") is the Rule under which the motion was brought before the IAD:
| 27. (1) Every application that is not provided for in these Rules shall be made by a party to the Appeal Division by motion, unless, where the application is made during a hearing, the members decide that, in the interests of justice, the application should be dealt with in some other manner. |
|
27. (1) Toute demande d'une partie qui n'est pas prévue par les présentes règles est présentée à la section d'appel par voie de requête, sauf si elle est présentée au cours d'une audience et que les membres décident d'une autre façon de procéder dans l'intérêt de la justice. |
[12] Rule 32 deals with reopening of appeals:
| 32. (1) Where the Appeal Division has declared an appeal to be abandoned by a party, the party may, by motion made pursuant to subrules 27(2) to (7), apply to the Appeal Division for the appeal to be reopened.
(2) A motion made by a party other than the Minister to reopen an appeal shall, where the party is not represented by counsel, include the party's address and telephone number.
(3) The Appeal Division shall grant a motion to reopen an appeal where there are sufficient reasons why the appeal should be reopened and it is in the interests of justice to do so. SOR/97-363, s. 20. |
|
32. (1) Dans le cas où la section d'appel a conclu au désistement de l'appel d'une partie, la partie peut lui demander la réouverture de son appel par voie de requête conformément aux paragraphes 27(2) à (7).
(2) La requête en réouverture présentée par une partie, autre que le ministre, qui n'est pas représentée par un conseil doit porter l'adresse et le numéro de téléphone de celle-ci.
(3) La section d'appel fait droit à la requête en réouverture lorsqu'il y a des motifs suffisants d'agir ainsi et que l'intérêt de la justice le justifie. DORS/97-363, art. 20. |
[13] The appeal had been considered abandoned under s. 76 of the Act:
| 76. Where a person against whom a removal order or conditional removal order has been made files an appeal against that order with the Appeal Division but fails to communicate with the Appeal Division on being requested to do so or fails to inform the Appeal Division of the person's most recent address, the Appeal Division may declare the appeal to be abandoned. |
|
76. Faute pour l'appelant d'entrer en communication avec elle, sur son ordre, ou de lui faire connaître sa dernière adresse, la section d'appel peut, dans le cas d'un appel relatif à une mesure de renvoi ou de renvoi conditionnel, conclure au désistement d'appel. |
SUBMISSIONS
Applicant
[14] The test set out in Rule 32 confers upon the IAD a broad discretion to reopen abandoned appeals. In exercising this discretion, the IAD must consider all relevant circumstances in support of the motion to reopen.
[15] In its written submission, the applicant states that he never received notice of his scheduled date to report to the Assignment Court. At the hearing on this application, he emphasizes that in the months since the IAD declared the appeal abandoned, he married a Canadian citizen and a child was born in Canada to that couple.
[16] These factors were brought to the attention of the Member at the motion to reopen, but were not addressed in the reasons for the decision not to reopen. This indicates that they were not given due consideration. Having failed to have regard to important facts, the IAD failed to properly exercise the discretion that is conferred upon it by Rule 32.
Respondent
[17] The applicant has not demonstrated any arguable issue of law upon which the proposed application might succeed. The IAD correctly analysed the factors that it had to consider, according to Rule 32, in arriving at the decision not to reopen the appeal.
[18] The respondent cites Plummer v. Canada (Minister of Employment and Immigration) (1993), 26 Imm. L.R. (2d) 58 (IAD) and Watson v. Canada (Minister of Citizenship and Immigration), [2000] I.A.D.D. No. 1271 (File T97-06412) (QL), in its submissions as to what the IAD had to consider in deciding a motion to reopen. The factors include whether the applicant knew of the hearing date, whether he knew of the consequences of the deportation order against him, the existence of a valid reason for non-attendance, whether the applicant acted quickly and with due dispatch in seeking to reopen the appeal, and whether natural justice or fairness were denied.
[19] The applicant resided throughout the calendar year 2000 at the address to which the Notice to Appear was sent. He did no provide a rational explanation for his assertion that he did not receive the Notice to Appear. His speculative suggestion that no such notice was sent is belied by the fact that a copy was sent to the respondent, who received a message and had a representative attend at the hearing. The applicant simply stated that he did not receive the document. He did not indicate that he had moved to a new address or had been served at the wrong address. Furthermore, the IAD sent him a letter April 27, 2000 at the same address informing him that his appeal had been declared abandoned. The Notice to Appear and the letter dated April 27th, 2000 were not returned to sender.
[20] The applicant also failed to show that he was not aware of the consequences of the deportation order against him. Nor did he act quickly and with due dispatch in seeking to reopen his appeal, as evidenced by the one-year lag between the declaration made in 2000 that the appeal had been abandoned and the motion served in 2001. In addition, the applicant has not shown any evidence that would suggest that he has been denied natural justice or fairness in his dealings with the respondent or the IAD. The panel also considered all the evidence before it including the Canadian born child but refused to reopen the appeal.
[21] The panel applied the factors that it had to consider in making its decision. It did not improperly exercise its discretion, and its decision is not patently unreasonable. The respondent points to Tse v. Canada (Secretary of State) (1993), 72 F.T.R. 36 (F.C.T.D.) to support the submission that decisions of the Appeal Division should be upheld unless they are patently unreasonable.
ANALYSIS
Factors to be considered in deciding an application to reopen
[22] Plummer, supra, and Watson, supra, set out factors that the IAD should consider. IAD member K.J. Spencer stated these requirements in this manner in his decision:
In deciding whether to grant an application to reopen under Rule 32, factors which the Appeal Division should consider include the following:
a) whether the applicant knew of the date of his hearing;
b) whether the applicant knew the consequences of the Deportation Order made against him;
c) whether the applicant had a valid reason for his non-attendance at the Appeal Division hearing;
d) whether the applicant acted quickly and with due dispatch in seeking to reopen his appeal; and
e) whether the applicant has been denied natural justice or fairness in his dealings with the Immigration Department or the Appeal Division. [emphasis added]
[23] The wording cited above indicates that the IAD ought to consider these factors but is not absolutely required to do so in all cases. In addition, the factors mentioned above are only some of the factors to be included, rather than an exhaustive list of the only factors that need to be considered. Nonetheless, this list of elements is useful in examining the claim of the applicant.
[24] The applicant alleges that he was not aware of the date on which he was to appear in Assignment Court. However, the member did not accept the explanation of the applicant for his failure to attend that session:
[...] I discount the applicant's explanation that he did not appear at Assignment Court because he never received any Notice to Appear from the Appeal Division sent to [the address of the applicant in] Mississauga, Ontario.
[25] Rule 35(1) provides for methods of service of notices by the IAD. It states:
Subject to subrule (5), service of any document in the course of a proceeding under these Rules shall be effected by personal service, by prepaid regular mail, by any mail service whereby the sender is provided with an acknowledgement of receipt, by courier or by the telephone transmission of a facsimile of the document [...].
[26] The respondent was entitled to use prepaid regular mail to effect service on the applicant. Although no system of delivery other than personal hand-to-hand transfer of a document is entirely flawless, the respondents used a reasonable method of service. To impose on the IAD a duty to effect personal service on every claimant appearing before it simply to prevent the claimant from denying that he received what was addressed to him would be impractical. The IAD cannot therefore be faulted for the method of service that it chose to use.
[27] It is clear that the applicant knew the consequences of the deportation order against him. The affidavit filed by the applicant in November 2001, in support of his motion to reopen, shows that he was fully aware of the effects of the deportation order against him and the practical consequences that this would have. The applicant has not, at any time, claimed that he was unaware of the existence and consequences of such an order, and there is certainly no basis on which this Court could conclude otherwise.
[28] In Plummer, the applicant admitted that he did not attend the hearing at which he had been scheduled to appear because he was in a state of confusion at the time, owing to a drug addiction. This explanation understandably garnered no sympathy from the Court.
[29] In the case at bar, the applicant was unable to satisfy the member that he had a valid reason for his non-attendance at the Assignment Court. His explanations were found to be insufficient by the member. A reading of the record leads this Court to believe that this finding is very reasonable. As such, it will stand.
[30] The applicant claimed that for the entire year of 2000, he resided at the same address in Mississauga where the Notice to Appear was sent.
[31] It is also clear that the applicant did not act quickly and with due dispatch in seeking to reopen his appeal. The appeal was declared abandoned on April 14, 2000. The applicant did not take steps to challenge the decision until June 2001, when he filed the challenge before this Court. This long delay is just cause for concern. It must not be forgotten that a Notice of Declaration of Abandonment of his appeal was sent to him on April 27, 2000.
[32] The member acknowledged that the applicant, through his counsel, has been actively pursuing to have the case reopened since November 2001. She concluded, however, that this factor was not sufficient on its own to lead her to rule in his favour.
[33] The applicant has been unable to justify his delay in responding to the declaration that his claim had been abandoned. The claim was declared abandoned in April 2000. Notwithstanding the assertion by Marks in her affidavit that the applicant immediately contemplated challenging this declaration after it was issued, the challenge to that decision was not filed in this Court until June 2001. The analysis of the granting of the application to reopen therefore fails on this element of the test set out in Plummer.
[34] Nonetheless, I will address the fifth element listed in Plummer; namely, that of procedural fairness. To the extent that the applicant has not fully enjoyed procedural fairness, it is due entirely to circumstances within his control. This refers back to the conclusion that the applicant did not act expediently in seeking to have his claim reopened. I therefore cannot conclude that the applicant was denied natural justice or was not shown procedural fairness.
Failure of the IAD to consider subsequent circumstances
[35] The reasons do not address directly the submissions of the applicant that since the decision declaring his appeal abandoned was issued, he married and had a child.
[36] These two new elements were before the panel prior to the December 2001 decision. I cannot conclude that the panel ignored that evidence. Even though it was not mentioned, I find that it is not fatal to the panel's decision: Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102.
[37] It would offend common sense and decency were the applicant allowed to delay acting on a decision for approximately one and one-half years, then plead that events arising approximately thirteen months after the original decision was rendered should be taken into account. Had the applicant brought his motion to reopen in a more timely manner, it may have been decided by the IAD before the events the applicant now seeks to invoke.
[38] For the above reasons, this application for judicial review shall be dismissed.
[39] The parties have had the opportunity to raise a serious question of general importance and have not done so. Therefore, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of serious general importance is certified.
___________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5847-01
STYLE OF CAUSE : LOVELL WILLIAMS and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : December 11, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE BEAUDRY
APPEARANCES :
Michael Korman FOR THE APPLICANT
Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD :
Otis & Korman FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario