Date: 20041019
Docket: IMM-2353-03
Citation: 2004 FC 1446
Vancouver, British Columbia this 19th day of October 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
STEPHEN MICHAEL WATSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Mr. Stephen Michael Watson (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Appeal Division (the "IAD"), dated March 12, 2003. In its decision, the IAD first allowed a request to reopen the Applicant's appeal against a removal order and then dismissed the appeal on the basis that it had no jurisdiction to hear it, pursuant to sections 196 and 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] This application for judicial review was heard at Winnipeg, Manitoba on February 17, 2004. On April 8, 2004, a Direction was issued, permitting the parties to make further submissions following delivery of the judgment by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Medovarski (2004), 35 Imm. L.R. (3d) 161. Both parties filed further submissions.
BACKGROUND
[3] The Applicant was born in Trinidad on November 22, 1962. He was landed in Canada on October 2, 1975. Subsequently, he was convicted of criminal offences including two counts of trafficking in a narcotic for which terms of imprisonment of two years for each offence were imposed, the sentences to be served concurrently.
[4] On April 5, 2000, the Respondent issued a "danger opinion" pursuant to the former Immigration Act, R.S.C. 1985, c. I-2 as amended (the "former Act"). On May 2, 2000, the Adjudication Division, as constituted under the former Act, ordered that the Applicant be deported, after finding that he was a person described in section 27(1)(d) of that Act, that is a person who had been convicted of an offence for which a sentence of six months or more may be imposed.
[5] The Applicant filed a notice of appeal from the deportation order on May 10, 2000. On November 14, 2000, the IAD dismissed the appeal on the basis of lack of jurisdiction, pursuant to section 70(5) of the former Act.
[6] On February 26, 2001, the danger opinion was set aside by the Federal Court Trial Division, following an application for judicial review, and was referred back to the Respondent for redetermination. On June 13, 2001, the Respondent discontinued an appeal from the judgment of the Federal Court Trial Division. On February 27, 2002, the Applicant was informed that the Respondent would not seek another danger opinion.
[7] On April 3, 2002, counsel for the Applicant advised the IAD that the Applicant wished to perfect his appeal, that is, to reopen the appeal that had been dismissed on November 14, 2000. On June 26, 2002, the matter was sent to the Assignment Court for the purpose of setting a hearing date for the appeal. The Applicant was advised that the purpose of the Assignment Court was to set a date for the hearing and that he should be prepared to address the issues of his case.
[8] In the proceedings at the Assignment Court, the IAD addressed the implications of IRPA for the Applicant's appeal since that legislation was to come into force on June 28, 2002. Counsel for the Applicant advised that he would be requesting the return of the Applicant who was no longer in Canada at that time.
[9] The IAD reserved a decision on the issues raised at the hearing on June 26, 2002, including the potential effect of section 196 of IRPA. A decision was made on March 12, 2003.
[10] The IAD observed that the Respondent had consented to reopening the appeal. It noted that on June 28, 2002, when IRPA came into force, the application to reopen the appeal was pending and that Section 190 of IRPA applies.
[11] The IAD found that section 192 of IRPA provides that if a notice of appeal was filed prior to the coming into force of this legislation, the appeal would be governed by the former Act. However, it also found that both sections 196 and 64 of IRPA applied to the Applicant.
[12] It found that no stay had been granted under the former Act, as required by section 196 and further, that the Applicant fell within the meaning of section 64 since he had been convicted of an offence for which a two year term of imprisonment was imposed. Consequently, the appeal would be discontinued.
SUBMISSIONS
[13] In his initial submissions, the Applicant argued that the IAD breached his rights to procedural fairness, that the decision was made in the absence of evidence, and that the decision breached his rights pursuant to section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter").
[14] The Applicant addressed the decision in Medovarski, supra in his further submissions and relied upon the dissenting opinion in that case to argue that fairness requires the exercise of judicial discretion in his favour to allow his appeal to proceed. He also maintained his arguments about breach of procedural fairness and breach of his section 7 Charter rights.
[15] For his part, the Respondent took the position that the decision of the Federal Court of Appeal in Medovarski, supra applies in this case and that there is no basis for judicial intervention in the decision under review. As well, the Respondent argued that the Applicant has failed to show a breach of procedural fairness or of his Charter rights.
DISCUSSION
[16] This application raises two issues, first is whether the decision in Medovarski, supra applies and second, whether the IAD breached the Applicant's rights to procedural fairness.
[17] In the present case, the IAD was dealing with an application to reopen an appeal that had been dismissed. The application to reopen was pending but undecided when IRPA came into force. According to section 190 of IRPA, that application was subject to IRPA. Section 190 provides as follows:
| 190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force. |
|
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise. |
[18] Section 192 addressed the situation where a notice of appeal had been filed before the implementation of IRPA and provides as follows:
| 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. |
|
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. |
[19] The Applicant had submitted his application to reopen his appeal in April 2002. He attended in Assignment Court on June 26, 2002 for the purpose of obtaining a hearing date. The IAD raised the matter of the implications of the pending implementation of IRPA on the appeal but no decision on his application to reopen was made on June 26, 2002. Consequently, the matter was still "pending".
[20] In the decision made on March 12, 2003, the IAD determined that section 196 of IRPA applies to the Applicant and further that the appeal could not be made due to the operation of section 64. Sections 196 and 64 provide as follows:
| 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. |
|
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. |
| 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. (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. (3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor's spouse, common-law partner or child. |
|
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. (2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans. (3) N'est pas susceptible d'appel au titre du paragraphe 63(1) le refus fondé sur l'interdiction de territoire pour fausses déclarations, sauf si l'étranger en cause est l'époux ou le conjoint de fait du répondant ou son enfant.
|
[21] In Medovarski, supra, the Federal Court of Appeal considered the interpretation of section 196 of IRPA and its effect upon appeals to the IAD that were outstanding, but undecided prior to June 28, 2002. In the course of its judgment, that Court also considered whether the loss of a right to appeal infringed section 7 of the Charter.
[22] The majority decision in Medovarski, supra concluded that the words "granted a stay under the former Act" in section 196 of IRPA applied only to a stay granted upon the disposition of a stay pursuant to section 73(1)(c) of the former Act. At paragraph 30, Justice Evans, writing for the majority, said the following:
Hence, since the words in IRPA, section 197, "granted a stay under the former Act", apply to decisions taken under paragraph 73(1)(c), but not to stays imposed by IA, paragraph 49(1)(b), it is presumed that the same phrase has the same meaning in section 196, and does not include the automatic statutory stay.
[23] The record is clear that the Applicant had not been granted a stay under the former Act. The evidence before the IAD showed that the Applicant was a person to whom section 64 of IRPA applied. He had been sentenced to a term of imprisonment of two years. The IAD did not err in its interpretation of the law or its appreciation of the evidence.
[24] The Applicant also argues that the IAD breached his rights pursuant to section 7 of the Charter. Section 7 provides as follows:
| 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. |
|
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale. |
[25] The Applicant argues that the IAD failed to give him an oral hearing and failed to identify the evidence upon which it relied. He also submits that the delay in disposing of his application to reopen his appeal was a breach of the principles of fundamental justice, contrary to section 7.
[26] I see no merit in these submissions. The IAD, in its reasons, sufficiently identified the evidence upon which it relied, that is the history of the Applicant's involvement with the immigration system in Canada and his experience with the criminal justice system.
[27] The Applicant did not have a legitimate expectation that he had a right of appeal. This issue was also addressed by the Federal Court of Appeal in Medovarski, supra at paragraphs 59 and 60 where the majority said as follows:
In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at 739, the Supreme Court of Canada rejected the argument that the principles of fundamental justice require Parliament to provide a right of appeal on humanitarian and compassionate grounds before a permanent resident may be deported for serious criminality.
I see nothing in the facts of this case to distinguish Chiarelli. I do not accept that Ms. Medovarski was misled by the Minister into thinking that she had a right of appeal. No one has a legitimate expectation that the law will not be changed from time to time. There is no evidence that Ms. Medovarski would have conducted her defence in the criminal proceeding on a different basis (or that, if she had, it would have made a difference to the outcome), had she realized that a sentence of two years would deprive her of the right to appeal to the IAD.
[28] As for the Applicant's arguments concerning lack of procedural fairness, including bias on the part of the IAD, there is nothing in the record to support these submissions. There is no evidence of a breach of procedural fairness apparent on the face of the record, including the transcript of the proceedings in the Assignment Court on June 26, 2002.
[29] In the result, there is no basis for judicial intervention in the decision of the IAD dated March 13, 2003. The application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
(Sgd.) "E. Heneghan"
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Stephen Michael Watson v. Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 17, 2004
APPEARANCES:
Saul Simmonds
Kathy Bueti
Winnipeg, Manitoba FOR APPLICANT
Winnipeg, Manitoba
SOLICITORS OF RECORD:
Gindin, Wolson, Simmonds FOR APPLICANT
Winnipeg, Manitoba
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada