Date: 20040716
Docket: IMM-3593-03
Citation: 2004 FC 984
BETWEEN:
EMANUELE TESORO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
Introduction
[1] These reasons follow the hearing of an application for judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board wherein the IAD rejected a motion on behalf of the Applicant to reopen his appeal from a decision, also made by the IAD, that his appeal, as a permanent resident, from a finding that he is inadmissible to Canada on the ground of serious criminality had been discontinued. The decision under review, that is, the decision not to reopen the Applicant's appeal, is dated the 7th of May, 2003. The discontinuance decision is dated the 22nd of August, 2002.
Background
[2] In the decision under review, the IAD summarized the background to the matter before it in the following terms:
The Appellant [here the Applicant] was landed as a permanent resident in Canada in 1967. In August 2001, he was convicted of 18 charges of forgery, 12 offences of fraud over $5,000, and 3 counts of perjury . He was sentenced to 38 months on each conviction concurrent. On December 10, 2001, he was ordered deported. An appeal was filed on the same date.
[3] Subsequent to the filing of the Applicant's appeal of the deportation decision, and before that appeal was heard by the IAD, the Immigration and Refugee Protection Act[1] came into force. The relevant provisions of that Act, for the purposes of this application for judicial review, are the following:
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64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
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64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant. |
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(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
.....
192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
.....
196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.
[emphasis added] |
(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
.....
192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission.
.....
196. Malgré l'article 192, il est mis fin à l'affaire portée en appel devant la Section d'appel de l'immigration si l'intéressé est, alors qu'il ne fait pas l'objet d'un sursis au titre de l'ancienne loi, visé par la restriction du droit d'appel prévue par l'article 64 de la présente loi.
[je souligne] |
[4] By letter dated the 23rd of July, 2002, the Respondent wrote to the Registrar of the IAD drawing her attention to sections 64 and 196 of the Immigration and Refugee Protection Act, as quoted above, and concluded:
Based upon the above information, the Minister requests that the Immigration Appeal Division discontinue the appeal filed by Mr. Tesoro.
[5] The Respondent's letter was copied to the Applicant and to his then counsel. It included the following note to the Applicant:
Please note your file has been transferred to the Greater Toronto Enforcement Centre.... . You will be contacted by that office in the near future regarding your case.
[6] Thus, the Applicant was advised that he was at imminent risk of deportation, notwithstanding the fact that he had been a permanent resident in Canada since 1967.
[7] On a form entitled "IAD Hearing Disposition Record" dated the 22nd of August, 2002,[2] there appears under the heading "Decision" the following notation: "Appeal discontinued." That notation appears to be initialled or signed by a member of the IAD who is identified on the form in indecipherable handwriting. Thus, apparently in response to the Respondent's request that the Applicant's appeal be discontinued, and notwithstanding the informality of that request and in the absence of any responding submissions by or on behalf of the Applicant, the Applicant's appeal to the IAD which might have demonstrated significant humanitarian and compassionate concerns on behalf of the Applicant, was discontinued.
[8] On the 10th of September, 2002, more than a month after the Applicant and his then counsel were copied on the Respondent's discontinuance request and almost three (3) weeks after notice of the discontinuance decision had been sent to the Applicant and his counsel of record with the IAD, new counsel for the Applicant advised the IAD of his intent to make submissions on the discontinuance issue. On the 30th of September, 2002, counsel filed his submissions. Neither the notice of intent to make submissions nor the submissions themselves were ever acknowledged by the IAD.
[9] In November of 2002, the Applicant's new counsel, upon inquiring as to the status of the informal request for discontinuance, was advised of the discontinuance decision of the 22nd of August, 2002. In response, counsel filed the motion to reopen the Applicant's appeal before the IAD that led to the decision here under review.
The Decision Under Review
[10] In the decision under review, the IAD cites section 71 of the Immigration and Refugee Protection Act which specifically refers to applications to reopen appeals. That section reads as follows:
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71. The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice. |
71. L'étranger qui n'a pas quitté le Canada à la suite de la mesure de renvoi peut demander la réouverture de l'appel sur preuve de manquement à un principe de justice naturelle.
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[11] The IAD, in its formal reasons dated the 16th of June, 2003, notes that the application to reopen was denied by order dated the 7th of May, 2003.
[12] The IAD's reasons describe the issues that were before it on the motion to reopen in the following terms:
Has a denial of natural justice occurred such that the appeal should be reopened? Do the principles of natural justice require that, given the appellant's circumstances, the Immigration Appeal Division must provide a reasonable opportunity for submissions before making a decision about the discontinuance of the appeal?
[13] The IAD specifically declines to answer the question as to whether or not a denial of natural justice occurred when the decision to discontinue the Applicant's appeal was made without, in the submission on behalf of the Applicant, providing the Applicant with a reasonable opportunity to make submissions on the issue of discontinuance. Rather, in reliance on Mobil Oil Canada Ltd. v. Canada - Newfoundland Offshore Petroleum Board [3], the IAD determined the motion against the Applicant. The IAD writes at paragraphs 34 to 36 of its reasons:
I have chosen to follow the approach enunciated by the Supreme Court of Canada in Mobil Oil, [1994] 1 S.C.R. 202 and applied in the immigration context by the Federal Court in Dematas. Even if counsel is correct in this allegation of a breach of natural justice, a finding which the panel declines to make, does this alter the inevitable result?
The Appellant's appeal is discontinued by operation of section 196. He was not granted a stay of the nature contemplated in that provision, and he has been punished in Canada by a term of imprisonment of at least two years. Parliament was clear in its intention to impose retroactivity in the application of the transition provision. Basic rules of statutory interpretation, the plain meaning rule and the rule against absurdity, auger against the interpretation which counsel strains to impose upon the meaning of section 196.
As the panel finds that an outcome against the Appellant would be inevitable, I decline to reopen the appeal. Application dismissed.
[citations omitted, emphasis added]
[14] The reference to Dematas in the foregoing quotation is toDematas v. Canada (Minister of Citizenship and Immigration)[4].
Subsequent Developments
[15] The conclusion of the IAD that Parliament was clear in its intention to impose retroactivity by the application of section 196 of the Immigration and Refugee Protection Act and that thus reopening of the Applicant's appeal would lead to an inevitable result against him, was not universally shared. In Medovarski v. Canada (Minister of Citizenship and Immigration),[5] my colleague Justice Snider reached quite the opposite conclusion. She wrote in her reasons:
.... I conclude that the word "stay" in section 196 of the IRPA contemplates a stay that came into affect as a result of the operation of paragraph 49(1)(b) of the former Act [theImmigration Act that was repealed and replaced by IRPA].
My decision in this case does not establish whether Parliament could, through legislative amendments, remove the right of appeal from the applicant and others in her position; it only determines that Parliament did not do so for this applicant.
As a result, the IAD erred in concluding that section 196 had the effect of extinguishing the applicant's appeal rights under section 192 of the IRPA.
[16] Further decisions from the Federal Court Trial Division, now the Federal Court, reached the same conclusion as that reached by Justice Snider.
[17] Justice Snider certified the following question as a serious question of general importance arising out of her decision in Medovarski:
Does the word "stay" in section 196 of the IRPA contemplate a stay that came into affect under the Immigration Act, RSC, 1985, c. I-2 as a result of the operation of paragraph 49 (1)(b)?
[18] The question certified by Justice Snider was considered on an appeal of her Medovarski decision to the Federal Court of Appeal. The Federal Court of Appeal, by a majority, overturned Justice Snider's decision[6].
[19] Justice Evans, for the majority, described the issues before the Federal Court of Appeal in the following terms:
... Did the Applications Judge err in law when she interpreted the words, "granted a stay under the former Act", in section 196 of IRPA to include the stay of the execution of a removal order imposed by [paragraph 49(1)(b) of the Immigration Act] on the filing of a notice of appeal against the order?
. . . .
... By discontinuing appeals against removal orders when notices of appeal were filed immediately prior to June 28, 2002, [the date of coming into force of IRPA] by persons falling within IRPA, section 64, does section 196 deprive a person of the right to life, liberty and security of the person other than in accordance with the principles of fundamental justice contrary to section 7 of the Charter?
[20] Justice Evans answered the first issue question in the affirmative and the second issue question in the negative. In the result, he allowed the appeal that was before the Court, reversed the decision of this Court and dismissed the application for judicial review of the decision of the Immigration Appeal Division to the effect that Ms. Medovarski's appeal was discontinued. In effect, he affirmed the decision of the IAD that is here under review to the extent that that decision concludes that reinstatement of the Applicant's appeal before the IAD would be fruitless because the result on such an appeal would inevitably go against the Applicant herein.
[21] But that is not the end of the matter. Leave to appeal the decision of the Federal Court of Appeal in Medovarski is now being sought before the Supreme Court of Canada[7].
The Issues
[22] Counsel for the Applicant urges that the IAD erred in a reviewable manner: first in declining to determine whether or not there had been a breach of natural justice when the IAD failed to provide the Applicant with a reasonable opportunity to make submissions against discontinuance of his appeal before the IAD; and secondly, in concluding, in the absence of such a determination, that, even if there were a breach of natural justice, it was under no obligation to reopen the Applicant's appeal before it since the outcome on any such appeal would be inevitable.
Analysis
[23] Counsel for the Respondent urged that I should read the decision of the IAD that is here under review as concluding that no breach of natural justice occurred when it failed to provide the Applicant with a reasonable opportunity to respond to the Respondent's request for an order of discontinuance. Counsel for the Applicant urged that, to so conclude, would make superfluous the IAD's analysis leading to the conclusion that the Applicant's appeal before it need not be reopened because the result would inevitably go against the Applicant. I decline to read the decision under review in the manner urged. To do so would fly in the face of the very specific wording of the IAD's reasons for decision. That being said, while the action of the IAD in failing to address the question of whether or not a breach of natural justice had occurred is not to be condoned, since it was an issue that was clearly before the IAD and which begged a direct answer if the Applicant's right to seek judicial review before this Court is to be meaningful, in the interest of ensuring optimal use of scarce resources both at the Immigration and Refugee Board and on this Court, I am not prepared to find reviewable error in that regard.
[24] I reach the foregoing conclusion based upon the following brief analysis. If this matter were to be referred back to the IAD for redetermination, and it were to find no breach of natural justice, a result that I would regard as highly problematic, the matter would almost inevitably return to this Court given what is at stake for the Applicant who has now been based in Canada since 1967. This Court, in my view, would almost inevitably find a breach of natural justice on the part of the IAD. Thus, the matter would again return to the IAD which would be faced with a finding of a breach of natural justice, the finding that the IAD itself would, in the view of this judge, be more likely to reach if this matter were now sent back to it. In either case, faced with the decision in Medovarski from the Federal Court of Appeal, once again the decision at the IAD would go against the Applicant.
[25] As to whether the IAD erred in concluding that, even assuming a breach of natural justice, it would be senseless to pursue the matter further since the result would go against the Applicant on its preferred interpretation of section 196 of IRPA, I conclude that the IAD made no reviewable error in its reliance on Mobil Oil, supra, once again in light of the current state of the law following the Court of Appeal decision in Medovarski.
[26] In the result, this application for judicial review will be dismissed.
Certification of a Question
[27] In light of the application that is before the Supreme Court for leave to appeal to that Court from the Federal Court of Appeal decision in Medovarski, the Court is satisfied that a case might be made for certification of a serious question of general importance in this matter. Counsel for the Applicant will have 7 days from the date of distribution of these reasons to serve and file submissions with regard to a certified question. Thereafter, counsel for the Respondent will have 7 days to serve and file submissions on behalf of the Respondent. Once again thereafter, counsel for the Applicant will have 3 days to serve and file any submissions responding to the submissions on behalf of the Respondent. Thereafter, an Order dismissing this application for judicial review will issue.
J.F.C.
Ottawa, Ontario
July 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3593-03
STYLE OF CAUSE: EMANUELE TESORO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 5, 2004
REASONS FOR ORDER BY: GIBSON J.
DATED: JULY 16, 2004
APPEARANCES BY:
Mr. Ronald Poulton
FOR THE APPLICANT
Ms. Marianne Zoric
FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAMMAN & ASSOCIATES
Barristers & Solicitors
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
[1] S.C. 2001, c. 27, in force June 28, 2002.
[2] Applicant's Application Record, Page 33B.
[3] [1994] 1 S.C.R. 202.
[4] [1995] F.C.J. No. 1262 (F.C.T.D.).
[5] [2003] 4 F.C. 227 (F.C.T.D.).
[6] Medovarski v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 366 (Q.L.), (F.C.A.).
[7] 2004 S.C.C.A. 208, May 3, 2004.