Date: 20010525
Docket: IMM-334-00
Neutral Citation: 2001 FCT 533
BETWEEN:
A.B.Z.
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a January 14, 2000 decision of the Appeal Division of the Immigration and Refugee Board (the "IAD") denying the applicant's motion to reopen his appeal of his deportation order. That appeal was dismissed by the IAD on July 30, 1997, some two and a half years prior to the decision on the motion to reopen. This Court upheld the IAD's dismissal of the appeal at judicial review, see A.B.Z. v. M.C.I., [1998] 152 F.T.R. 294. The applicant was ordered deported from Canada on November 22, 1994 as a result of certain criminal convictions.
[2] The applicant sought to have the IAD reopen his file by motion in September, 1999. The grounds of his motion were:
- the applicant has had no charges or convictions for over 5 years;
- he has received death threats and fears physical harm if returned to his country of origin;
- he is rehabilitated;
- he has close family ties to Canada;
- removal would cause hardship to his family; and
- it is in the best interests of his children that he remain in Canada.
As stated above, the IAD decision dated January 14, 2000 dismissed this motion.
[3] The issues before me are:
1) What is the standard for review for an IAD discretionary decision?
2) The reasonableness of credibility findings;
3) The timing of the application of the motion to reopen;
4) Consideration of the applicant's lack of criminal convictions since 1994; and
5) The application of the decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 in the circumstances of this case.
[4] The IAD has a continuing equitable jurisdiction over a matter that has come before it. As stated in Grillas v. Canada (M.M.I.), [1972] S.C.R. 577 at 590, the intention of the Immigration Act, R.S.C. 1985 c. I-2 was to:
... enable the Board, in certain circumstances, to ameliorate the lot of an appellant against whom a deportation order had lawfully been made. ...
In my opinion, the IAD had jurisdiction to reopen the appellant's appeal to permit him to present additional evidence. In Sandhu v. Canada (M.E.I.), [1987] 1 Imm. L.R. (2d) 159 (F.C.A.), the Court of Appeal stated that the party seeking to introduce new evidence must prove to the satisfaction of the Court that he could not have obtained such evidence by reasonable diligence before the original hearing of the appeal. In Castro v. Canada (M.E.I.), [1988] 5 Imm. L.R. (2d) 87 (F.C.A.), Reed J. stated the test as follows:
In order to justify reopening, it seems to me the proffered [sic] evidence need only be such as to support a conclusion that there is a reasonable possibility as opposed to probability that it could lead the Board to change its original decision.
At the same time, however, there may be cases where the Board reaches the decision that the application to reopen is not bona fide, that it is merely a delaying tactic. In such circumstances the Board can rightly refuse an application to reopen on the ground of lack of bona fides.
[5] The IAD discussed the above law and stated, inter alia, at pages 4-5:
The issue to be determined is whether the Division should exercise its discretion in the applicant's favour and grant the motion to re-open on the grounds that there is a reasonable possibility that new evidence submitted by the applicant could lead the Division to change its original decision.
In exercising its discretion the Division looks at new evidence. It does not revisit or conduct an appellate review of the decision of the original panel. New evidence is evidence which was unavailable at the time of the original hearing, or was available but unobtainable despite the exercise of due diligence.
It must be emphasised that decisions of this nature are discretionary and the Division has a broad discretion in this regard.
and at pages 5-6:
While the evidentiary threshold for granting a motion to reopen is low (a reasonable possibility, as opposed to probability), the evidentiary threshold is not the sole determinant in the Division's exercise of discretion. It is clear from the statement of the Federal Court of Appeal above, and from other jurisprudence of the Federal Court of Appeal, that the Division can examine the circumstances surrounding the filing of the motion and can assess the merits of the motion in light of such considerations as the good faith of the moving party and the interests of finality in litigation.
At page 6, the IAD went on to state:
Clearly this approach envisages a balancing of a grant of ongoing jurisdiction on the one hand with the value of finality in litigation on the other. Striking the right balance can only be done through an exercise of discretion.
The IAD then went on to consider such circumstances at page 7:
...
If the evidentiary standard is considered in isolation, then it has the effect of setting a lower standard for a reopening (reasonable possibility) than exists for an actual determination on the merits (balance of probabilities). If the evidentiary standard is considered in isolation, then the value of finality in litigation can be seriously undermined. It is for this reason that any new evidence tendered must be looked at in light of other circumstances surrounding the case, such as the timing of the motion to reopen and the candour and good faith of the party requesting relief.
[6] The IAD then concluded at pages 19-20 of its reasons:
Viewing the evidence on this motion in its totality, I conclude that the value of finality in litigation would be undermined by allowing this appeal to be re-opened. This is because the filing of the motion can fairly be characterised as [an] attempt to forestall removal. The timing of the motion is suspect and the applicant is not candid in his account of events surrounding his testimony in the criminal trial. The evidence which he relies upon does not constitute new evidence. There is not a reasonable possibility that a panel of the Appeal Division would come to a conclusion different from that of the first panel. The motion is therefore denied.
[7] With respect to the IAD's findings of fact, the standard of review is one of patent unreasonableness. See: Jessani v. Canada (M.C.I.), [2001] F.C.A. 127. The standard of review with respect to the exercise of discretion by the IAD is reasonablenesssimpliciter. See: Baker v. Canada (M.C.I.), supra.
[8] The applicant submits that the findings of fact were not reasonable. However, as stated above, findings of fact must be patently unreasonable before any errors become reviewable errors. The applicant's counsel takes the position that his client never stated that he entered into a deal with the police or authorities. The applicant points to paragraphs 18 and 23 of his affidavit which read as follows:
18. The officer at the outset told me that while he could assist me with respect to my theft charge, he could not help me with my immigration matters.
...
23. Throughout my time in the Witness Protection Program, I received assurances from my police contacts that I should not worry about my immigration problems. While I was aware that this did not constitute a guarantee and that I would still have to make applications, I never realized that the authorities would move so quickly to have me deported ...
[9] The IAD thoroughly reviewed the arguments at pages 8 and 9 of its reasons. It concluded by preferring the version of events set out in the respondent's record as more reliable than the sworn affidavit of the applicant. The IAD's decision also indicates that the applicant relied on his proposed testimony at the original motion before the IAD, but he has not pointed out that his testimony had to be ruled out because of his suggestions that he was going to be assisted to remain in Canada. In my view it was open to the IAD to take the view it did of the applicant's position with respect to staying in Canada. The IAD's finding on this point is certainly not patently unreasonable.
[10] The IAD concluded that the respondent had accurately characterized the applicant's motion to reopen as a tactic to delay removal of the applicant and correctly points out that there was a stay granted that prohibited removal. The IAD does indicate that the ability of the applicant to obtain counsel when his removal was imminent, as opposed to earlier, is certainly a factor. However, the IAD was entitled to look at the issue of delay in determining that the applicant's motion to reopen constituted a last ditch effort to forestall his removal from Canada.
[11] I also refer to the argument found in paragraphs 45-48 of the Minister's submissions before that IAD. These submissions support the IAD's negative finding with regard to the applicant's credibility, and tend to support my view that the IAD's conclusion regarding the issue of delay is reasonable.
[12] The applicant's counsel also submits that the IAD erred in law when it made an allegedly unreasonable conclusion in finding that there was no evidence that the applicant had been rehabilitated. The applicant submits that the IAD did not adequately consider the fact that the applicant had had no further criminal convictions. However, the IAD specifically stated that:
The fact that the applicant has no further convictions following the original Appeal Division hearing is a factor in his favour. However, the weight to be given to this factor has to be examined in light of surrounding circumstances.
The IAD is entitled to weigh the evidence and there is nothing patently unreasonable in its finding that the applicant was not rehabilitated.
[13] The applicant also submitted that the IAD erred in stating that the decision in Baker, supra was irrelevant because the IAD's discretion to reopen was based on changes in fact, as opposed to a change in the law. In my view, the IAD was correct in its finding in this respect. As the IAD stated at page 13:
The most significant change in the family circumstances of the applicant since the original appeal hearing is the birth of a fourth child. Apart from that his family circumstances have not changed from the date of the hearing, when the applicant had three Canadian born children and was married to a Canadian citizen.
The applicant's counsel submits that the existence of a fourth child is new evidence. However, counsel has not given any reason why the fourth child is in any different position to that of the original three children. I agree with the IAD's statement at page 14 of its decision:
The Division's power on motions to re-open does not extend to applying the law retroactively.
[14] With respect to its view of the decision in Baker, supra, the IAD stated at page 17:
In this case the evidence relating to the applicant's children was put before the original hearing panel and was considered based upon the law as it stood at the date of the original hearing. The change in the law brought about by Baker is not a new circumstance or fact which justifies a reopening.
[15] The IAD concludes by stating at page 19:
The evidence on the motion does not reveal a change in the relationship between the applicant and his children, except for the fact that there is now a fourth child in the family. For this reason I conclude that there is no new evidence before the Division on the issues of family circumstances or the best interests of the children which would justify re-opening.
For the above reasons the application for judicial review is dismissed. The Applicant sought to have the following question certified:
When the Appeal Division of the Immigration and Refugee Board exercises its continuing equitable jurisdiction and receives an application to reopen an appeal against a deportation order which contains fresh evidence which was not considered by the panel which dismissed the appeal, is the Appeal Division required to apply the law related to the exercise of its discretion as it stands at the time of the application to reopen?
In view of my findings, this question would not change the result in this matter. Accordingly, I am not certifying the question.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
May 25, 2001