BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the IAD) dated June 14, 2005, stating that the applicant has lost his right of appeal from the removal order issued against him.
Facts
[2] Puviraj Thambithurai (the applicant) arrived at the Port of Entry of Mirabel on March 23, 1993. He declared having left his country of citizenship, Sri Lanka, on March 19, 1993, having then travelled through Bangkok and London before arriving in Canada. He was not in possession of any travel document. He had a copy of his Driving Licence issued in February 1984. He was then residing in Colombo. He also had an Identity Card issued on July 30, 1992 in Colombo. On this document, his profession is "student".
[3] On April 5, 1993, the applicant presented his Personal Information Form (PIF) to the Refugee Protection Division of the Immigration and Refugee Board (the RPD). On September 2, 1993, the applicant was granted refugee status in Canada.
[4] On November 18, 1993, the applicant presented a Convention refugee application for permanent residence. He declared that he had a Sri Lankan passport valid until July 29, 1997.
[5] On December 10, 1994, the applicant became a permanent resident of Canada.
[6] After receiving an anonymous denunciation, Citizenship and Immigration Canada (CIC) launched an investigation. The RCMP informed CIC that Interpol France had identified the applicant on February 18 and 20, 1988 by fingerprints comparison. He had been identified because of a crime related to the drug legislation.
[7] On January 9, 1997, the applicant entered Canada at Mirabel Airport and was interviewed by two immigration officers. He denied having resided in France and having committed any crime in France. The applicant had presented a Sri Lankan passport valid from February 2, 1995, to February 9, 2000. He also presented a document from A.K.S. Pharmacy, his alleged employer in Sri Lanka. This document confirmed that he was employed from April 1990 to January 1993.
[8] CIC did receive court documents concerning the criminal charges the applicant had been indicted. These documents indicate that the applicant was arrested in Paris on February 16, 1988 with other people in a deliberate act of trying to deal 720 grams and 560 grams of heroin. On September 26, 1989, he was found guilty of acquiring, possessing and trafficking in heroin, of associating or conspiring with a view to acquire, possess and traffic in and smuggling prohibited good, punishable under the "Code de la santé publique" and the "Code des douanes". He was sentenced to seven years imprisonment pursuant to section 464-1 of the "Code de procédure pénale", to pay jointly and severally the Customs administration the sum of 1.277.000 francs and to pay a fine of 2.554.000 francs. He was also to be banned from the French territory.
[9] The Minutes of a hearing before the Immigration Division on February 28, 2002, show that the applicant was questioned concerning the period that he remained in France after September 1989. His answer was "about three and a half years" but he could not remember the exact time or year that he left France.
[10] The September 23, 2003 decision of the Immigration Division was that the applicant is a person described in paragraph 36(1)(c) of the Immigration and Refugee Protection Act, that is, that he was inadmissible for serious criminality, and paragraph 40(1)(a), that is, that he was inadmissible to Canada because of misrepresentation. He was ordered deported. He appealed this decision before the IAD. The appeal was never heard on the merits.
[11] The applicant is now married to Shanti Rajaratnam, whom he sponsored after his marriage. Mrs. Thambithurai has now acquired her Canadian citizenship. From this union were born two Canadian-born children, who are Canadian citizens.
[12] On February 12, 2004, there was an application by the respondent, filed under section 109 of the Immigration and Refugee Protection Act, to vacate the decision to allow the claim for refugee status.
[13] On May 18, 2005, the RPD allowed the application to vacate the applicant's refugee/protected person status. This decision is the subject of the application for judicial review in this Court docket IMM-3579-05 (application allowed by this Court on this day).
[14] On June 14, 2005, further to a request made by the respondent, the IAD rendered a decision stating that the applicant has lost his right of appeal from the removal order issued against him. This decision is the subject of the present application for judicial review.
Pertinent legislation
[15] The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) are as follows:
| 46. (1) A person loses permanent resident status (a) when they become a Canadian citizen; (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28; (c) when a removal order made against them comes into force; or (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.
63. (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.
95. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).
109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.
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46. (1) Emportent perte du statut de résident permanent les faits suivants : a) l'obtention de la citoyenneté canadienne; b) la confirmation en dernier ressort du constat, hors du Canada, de manquement à l'obligation de résidence; c) la prise d'effet de la mesure de renvoi; d) l'annulation en dernier ressort de la décision ayant accueilli la demande d'asile ou celle d'accorder la demande de protection.
63. (3) Le résident permanent ou la personne protégée peut interjeter appel de la mesure de renvoi prise au contrôle ou à l'enquête.
95. (2) Est appelée personne protégée la personne à qui l'asile est conféré et dont la demande n'est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4).
109. (1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d'asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
(2) Elle peut rejeter la demande si elle estime qu'il reste suffisamment d'éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l'asile. (3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
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The decision under review
[16] The June 14, 2005 decision of the IAD reads as follows:
A verification was made regarding the decision rendered by the Refugee Protection Division (RPD) on May 18, 2005. The application to vacate the refugee/protected person status of the appellant was allowed by the RPD. As per section 46(1) d) of Immigration and Refugee Protection Act (IRPA), the appellant has lost his permanent resident status as well as his right of appeal before the Immigration Appeal Division (IAD) by virtue of section 63(3) of IRPA.
Analysis
[17] In my opinion, the foundation of the decision of the IAD dated June 14, 2005 is flawed essentially as having been rendered on the basis of the September 23, 2003 decision of the Immigration Division which has been set aside by this Court on this day as constituting an abuse of process.
[18] Consequently, the application for judicial review is granted, the decision of the IAD dated June 14, 2005, in all fairness, is set aside and the matter is sent back to the IAD for determination in accordance with these Reasons.
[19] I agree with learned counsel for the respondent that there is no basis for issuance of a certified question in this case.
Ottawa, Ontario
June 20, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3915-05
STYLE OF CAUSE: THAMBITHURAI, Puviraj v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 11, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: June 20, 2006
APPEARANCES:
Me Jérôme Choquette, Q.C. FOR THE APPLICANT
Me Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Choquette, Beaupré, Rhéaume FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada