Date: 20040325
Docket: IMM-476-03
Citation: 2004 FC 436
Ottawa, Ontario, the 25th day of March, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
TRILOKI DATTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review against the deportation order made on January 13, 2003 by Minister's delegate Nathalie Sabourin. The Minister's delegate found that the Applicant was inadmissible, pursuant to paragraph 40(1)(c) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act").
ISSUE
[2] The Respondent presented its evidence at an admissibility hearing on December 16, 2002. Did the Respondent err in law by notifying the Immigration Division of its request to withdraw from the admissibility hearing before its continuation on January 15, 2003, as opposed to submitting a written application for withdrawal in conformity with subsection 5(3) of the Rules?
[3] For the following reasons, I answer in the affirmative, and therefore I will allow the application for judicial review.
BACKGROUND
[4] The Applicant is a citizen of India. He was recognized as a Convention refugee and on that basis, he was granted landing as a permanent resident of Canada on October 17, 1997.
[5] The Applicant's Convention refugee status was vacated on November 30, 1999 because he made misrepresentations in his refugee claim. On February 22, 2000, this Court denied the application for leave and for judicial review against this decision at leave stage, on the basis that the Applicant had not filed an Application Record.
[6] Meanwhile, on January 25, 2000, a senior immigration officer scheduled an inquiry pursuant to subsection 27(6) of the former Immigration Act for February 15, 2000. The inquiry was based on paragraph 27(1)(e) of the former Immigration Act, which applies to an Applicant who was granted landing by reason of fraudulent or improper means or misrepresentations of any material fact. On February 15, 2000, the Applicant failed to appear at the inquiry.
[7] On June 28, 2002, the new Act came into force.
[8] On December 13, 2002, the Applicant was arrested and detained for immigration purposes. On December 16, 2002, Michel Beauchamp, member of the Immigration Division, examined the Applicant's detention and ordered the release of the Applicant. The Respondent submitted all of its evidence (immigrant visa and record of landing dated October 17, 1997; written reasons for the decision on application to vacate dated November 29, 1999; a decision on Minister's application to vacate Convention refugee determination dated November 30, 1999; a report under section 27 of the former Immigration Act dated January 21, 2000; a notice of inquiry dated January 25, 2000; a direction under subsection 27(3) of the former Immigration Act for an inquiry dated January 25, 2000). Upon the Respondent declaring its proof closed, counsel for the Applicant requested a postponement of the admissibility hearing (previously called an 'inquiry' under the former Immigration Act) in order to prepare his defence. The request for postponement was granted and the hearing was scheduled for January 15, 2003.
[9] On January 10, 2003, the Respondent sent the Applicant's counsel notification of his withdrawing the admissibility hearing.
[10] On January 13, 2003, Minister's delegate Nathalie Sabourin made a deportation order against the Applicant based on paragraph 40(1)(c) of the Act which states that a permanent resident or a foreign national is inadmissible for misrepresentation on a final determination to vacate a decision to allow the claim for refugee protection. On January 27, 2003, the Applicant filed an application for leave and for judicial review of the Minister's delegate decision with this Court.
APPLICANT'S SUBMISSIONS
[11] According to the Applicant, the Respondent committed an error in law by arbitrarily and illegally notifying the Immigration Division of its intention to withdraw its request for an admissibility hearing. Such a unilateral notification of withdrawal, which occurred after the Respondent had presented substantial evidence and declared its proof closed, is contrary to subsection 5(3) of the Immigration Division Rules, SOR/2002-229 ("Rules"), which provides that "if substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request". According to subsection 5(3) of the Rules, the Respondent had an obligation to submit a written application, which is governed by subsection 38(4) and following of the Rules, in order to withdraw its request for an admissibility hearing.
[12] Once the Minister decides to ask for an admissibility hearing, the Minister is bound by subsection 5(3) of the Rules.
[13] The Respondent's action deprived the Applicant of the opportunity to retain his permanent resident status and/or the right to appeal any decision of the Immigration Division to the Immigration Appeal Division thereby committing a serious breach of natural justice and due process since the Respondent's deportation order cannot be appealed under the new Act.
[14] The Applicant challenged the decision of the Respondent to withdraw the request for an admissibility hearing. The Applicant is seeking a judicial review of the deportation order and it necessarily implicates the Respondent's notice of withdrawal of its request for an admissibility hearing.
RESPONDENT'S SUBMISSIONS
[15] According to the Respondent, the issue of whether a unilateral notification by the Respondent of its decision to withdraw its request for an admissibility hearing was sufficient or whether the Respondent needed to submit a written application to withdraw has no bearing on the issuance of the deportation order made by the Minister's delegate on January 13, 2003. Secondly, there is no indication that the Applicant sought to challenge the Respondent's decision to withdraw.
[16] The Respondent argues that the application of the Rules (subsection 5(3) in particular) cannot serve to defeat the purpose of the Act. The purpose of the Act is to give the Minister, not the Immigration Division, the power to issue a deportation order over a foreign national who is inadmissible for misrepresentation due to a final determination to vacate a decision to allow a claim for refugee protection. This power is vested in the Minister by virtue of reading together subsection 44(2) of the Act, paragraph 40(1)(c) of the Act, and paragraph 228(1)(b) of the Immigration and Refugee Protection Rules, SOR/2002-227 ("IRPR").
ANALYSIS
[17] I agree with the Respondent that, based on the combined reading of paragraph 27(1)(e) of the former Immigration Act, subsection 321(1) and paragraph 321(2)(i) of the IRPR, paragraph 40(1)(c) of the Act, subsection 44(2) of the Act, paragraph 46(1)(d) of the Act and paragraph 228(1)(b) of the IRPR, the Minister had the authority to issue a deportation order without going through an admissibility hearing before the Immigration Division. Here is the text of the relevant legislation. Paragraph 27(1)(e) of the former Immigration Act states:
| 27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who ... (e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person; (my emphasis)
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas : ... e) a obtenu le droit d'établissement soit sur la foi d'un passeport, visa -- ou autre document relatif à son admission -- faux ou obtenu irrégulièrement, soit par des moyens frauduleux ou irréguliers ou encore par suite d'une fausse indication sur un fait important, même si ces moyens ou déclarations sont le fait d'un tiers; (je souligne) |
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[18] Subsection 321(1) and paragraph 321(2)(i) of the IRPR state:
| 321. (1) A report made under section 20 or 27 of the former Act is a report under subsection 44(1) of the Immigration and Refugee Protection Act. (2) For the purpose of subsection (1) ...
(i) inadmissibility on the basis of paragraph 27(1)(e) or (2)(g) or (i) of the former Act is inadmissibility under the Immigration and Refugee Protection Act for misrepresentation; (my emphasis)
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321. (1) Le rapport établi sous le régime des articles 20 ou 27 de l'ancienne loi est réputé être le rapport visé au paragraphe 44(1) de la Loi sur l'immigration et la protection des réfugiés. (2) Pour l'application du paragraphe (1) : ... i) le fait d'être visé à l'un des alinéas 27(1)e) et (2)g) et i) de l'ancienne loi est un motif d'interdiction de territoire pour fausses déclarations sous le régime de la Loi sur l'immigration et la protection des réfugiés; (je souligne)
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[19] Paragraph 40(1)(c) of the Act reads:
| 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation ... (c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national;
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40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : ... c) l'annulation en dernier ressort de la décision ayant accueilli la demande d'asile;
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[20] Subsections 44(1) and 44(2) of the Act read:
| 44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. (my emphasis)
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44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi. (je souligne)
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[21] Paragraph 46(1)(d) of the Act states:
| 46. (1) A person loses permanent resident status... (d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection.(my emphasis)
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46. (1) Emportent perte du statut de résident permanent les faits suivants : ... d) l'annulation en dernier ressort de la décision ayant accueilli la demande d'asile ou celle d'accorder la demande de protection. (je souligne)
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[22] Paragraph 228(1)(b) of the IRPR reads:
| 228. (1) For the purposes of subsection 44(2) of the Act, and subject to subsection (3), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be ... (b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;
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228. (1) Pour l'application du paragraphe 44(2) de la Loi, mais sous réserve du paragraphe (3), dans le cas où l'affaire ne comporte pas de motif d'interdiction de territoire autre que ceux prévus dans l'une des circonstances ci-après, l'affaire n'est pas déférée à la Section de l'immigration et la mesure de renvoi à prendre est celle indiquée en regard du motif en cause : ... b) en cas d'interdiction de territoire de l'étranger pour fausses déclarations au titre de l'alinéa 40(1)c) de la Loi, l'expulsion;
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[23] For some reason, the Minister decided to request an admissibility hearing. In my view, he certainly did not have to in light of the circumstances in the present case and probably should not have done so. But since he decided to go that route, he had to comply with the procedural rules that apply to admissibility hearings. One of them is subsection 5(3) of the Rules, which is to be read in the context of section 5:
| 5. (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process. (2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party. (3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request. (my emphasis)
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5. (1) Il y a abus de procédure si le retrait de la demande du ministre de procéder à une enquête aurait vraisemblablement un effet néfaste sur l'intégrité de la Section. Il n'y a pas abus de procédure si aucun élément de preuve de fond n'a été accepté dans le cadre de l'affaire. (2) Dans le cas où aucun élément de preuve de fond n'a été accepté dans le cadre de l'affaire, le ministre peut retirer sa demande en avisant la Section soit oralement lors d'une procédure, soit par écrit. S'il le fait par écrit, il transmet une copie de l'avis à l'autre partie. (3) Dans le cas où des éléments de preuve de fond ont été acceptés dans le cadre de l'affaire, le ministre, pour retirer sa demande, en fait la demande par écrit à la Section. (je souligne) |
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[24] Since it is uncontested that substantial evidence was adduced by the Respondent at the admissibility hearing on December 16, 2002, the Minister had the obligation to comply with subsection 5(3) of the Rules and make a written application to the Division, the specific requirements with regards to written applications being described in sections 37 to 40 of the Rules. In other words, the Respondent created an expectation for the Applicant in requesting an admissibility hearing and in submitting substantial evidence and it would be unjust not to apply procedural rules applicable in such instances.
[25] Therefore, I find that the Respondent failed to comply with subsection 5(3) of the Rules and in doing so, was not allowed to unilaterally withdraw its request for an admissibility hearing and make a deportation order without the admissibility hearing rules following their due course. If the Respondent wants to ask to withdraw its request for the admissibility hearing, it can. It has to submit a written application and the Immigration Division will render a decision. That could well be a valid ground for the Immigration Division to grant a written request for a withdrawal of the admissibility hearing and its continuation. The Immigration Division could also state that it has no jurisdiction to do so, but nonetheless, the Applicant will at least be able to make further representations to the Immigration Division.
CONCLUSION
[26] For the reasons stated above, this application for judicial review is allowed. The deportation order is quashed and the admissibility hearing is to follow its course. The Immigration Division shall set the hearing date and notify the parties.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed. The deportation order is quashed and the admissibility hearing is to follow its course. The Immigration Division shall set the hearing date and notify the parties.
____________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-476-03
STYLE OF CAUSE: TRIKOLI DATTA v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 9, 2004
REASONS FOR ORDER THE HONOURABLE
AND ORDER: MR. JUSTICE BEAUDRY
APPEARANCES:
Mark J. Gruszczynki FOR APPLICANT
Daniel Latulippe FOR RESPONDENT
SOLICITORS OF RECORD:
Gruszczynki, Romoff FOR APPLICANT
Montreal, Quebec
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT