Date: 20040719
Docket: IMM-3331-03
Citation: 2004 FC 966
Ottawa, Ontario, July 19, 2004
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
NGUYEN LAM HUNG
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered from the bench at Montréal, Quebec, on June 29, 2004)
[1] This is an application for judicial review of a decision by the Immigration Appeal Division (the panel or the IAD) dated April 14, 2003, dismissing the applicant's application for reopening before the IAD his appeal of a removal order against him dated August 20, 2002.
[2] The applicant, born in Vietnam on June 23, 1969, obtained permanent residence on March 13, 1991.
[3] On March 22, 2002, he was sentenced to 16 months in prison and, following a report submitted to the Adjudication Division, member Lajeunesse determined on August 20, 2002, that he was a person contemplated by subsection 36(1) of the Immigration and Refugee Protection Act (IRPA), which sanctions inadmissibility on the grounds of serious criminality.
[4] He appealed the same day to the IAD under subsection 63(3) of the IRPA. His notice of appeal indicates that he was represented by counsel, Daniel Drouin.
[5] Then the applicant and his counsel were advised that a scheduling conference would be held on December 13, 2004.
[6] Mr. Drouin discussed the scheduling conference with the applicant and advised him that he would show up there alone, which he usually does in the vast majority of cases.
[7] Neither the applicant nor Mr. Drouin were present at the scheduling conference. The day before, Mr. Drouin had consulted a physician who wrote him a medical note "[TRANSLATION] Temporary unable to work from December 12 to 17, 2002 inclusively".
[8] On December 13, 2002, at the end of the scheduling conference at 11:55 the member and the respondent's counsel noted that the applicant and his counsel were absent and that there had been no news from them. The minister's counsel asked the panel to immediately apply, ex parte, the measure provided under section 168 of the IRPA, i.e. the abandonment of the matter before it. From the bench, the member declared the appeal abandoned.
[9] According to section 71 of the IRPA, the IAD may only reopen the evidence if it is satisfied that it failed to observe a principle of natural justice.
[10] In my view, the panel erred fundamentally in finding that it had not failed to observe a principle of natural justice when on December 13, 2004, the member declared that the appeal had been abandoned.
[11] The concept of natural justice or procedural fairness varies according to the circumstances (see Baker v. Canada [1999] 2 S.C.R. 817, paragraphs 20 to 28).
[12] In my opinion, in declaring the appeal abandoned without giving the applicant or his counsel the opportunity to explain why they were absent, the member failed to observe the principles of natural justice, in the circumstances of this case.
[13] This decision took away his opportunity to persuade the IAD to exercise its jurisdiction in equity and to stay a removal order. It is accordingly very far-reaching.
ORDER
This application for judicial review is allowed, the decision of the panel to not re-open the appeal is set aside, the application to reopen is referred to differently constituted panel of the IAD who shall make a determination in accordance with these reasons.
There was no question of importance proposed for certification.
"François Lemieux"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3331-03
STYLE OF CAUSE: NGUYEN LAM HUNG
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 29, 2004
THE HONOURABLE MR. JUSTICE LEMIEUX
DATE OF REASONS: (Delivered from the bench at Montréal on June 29, 2004)
APPEARANCES:
Daniel Drouin FOR THE APPLICANT
Christine Bernard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Drouin Lakhdar Hung FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec