Date: 20000616
Docket: IMM-1084-99
BETWEEN:
THURAIRASA PONNUSAMY
(a.k.a. RASA PONNUSAMY)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of, and an order setting aside, a decision of the Immigration and Refugee Board (Appeal Division) ("the Board" or "the Appeal Board"), dated February 15, 1999 cancelling a stay of a deportation order that had been previously ordered. The decision further dismissed the applicant's appeal. Counsel for the applicant and the respondent Minister were heard on November 9, 1999 in Toronto, at which time decision was reserved.
[2] The applicant seeks judicial review on a number of grounds, listed in the notice of application:
| 1. The decision was unlawfully made, in that the Tribunal denied the Applicant's natural and fundamental justice as a result of the conduct of the hearing. |
| 2. The decision is so patently unreasonable having regard to evidence properly before the Tribunal so as to amount to an error of law. |
| 3. The Tribunal lost jurisdiction and erred in law in ignoring evidence, in taking into account irrelevant evidence, in misinterpreting evidence properly before it, in making erroneous findings of fact without regard to the evidence before it and in failing to properly understand the evidence. |
| 4. In the alternative, the cumulative effect of these errors concerning the evidence amounts to an error of law. |
| 5. Such further and other grounds as counsel may advise and this Honourable Court permit. |
[3] I sum up these issues, raised in this application for judicial review, in two principal categories: (a) whether the applicant was given sufficient notice of the nature of the hearing before the Board, and (b) whether the Board misapprehended the evidence before it or made findings of fact in a perverse or capricious manner, without regard to the evidence before it.
Background
[4] The applicant, a Sri Lankan citizen, is the subject of a removal order originally made on December 13, 1993. This order was stayed by the Appeal Division on March 6, 1996. The stay was reviewed and extended periodically, and the last extension was ordered on November 21, 1997. The applicant was notified that his stay would be reviewed on January 20, 1999. Following a postponement, an oral review was held on February 15, 1999. As a result, the Appeal Board ordered that the stay be cancelled and that the applicant's appeal be dismissed. That decision gives rise to this application.
[5] The stay that was under review, with the amendments made up to November 21, 1997, was conditional. The revised stay order included the following terms, which required the applicant to
| - make reasonable efforts to attend English As A Second Language (ESL) and advise the Immigration Appeal Division in writing of the course, the institution giving the course, the frequency of his attendance and documentary support for his report, every six months; |
| - that he continue to attend psychotherapy sessions with Dr. Kingsley Ratnanather; that Dr. Ratnanather's 6 month reports be detailed as to the doctor's assessment of the appellant's current status, progress and prognosis. |
| - report in writing to the Regional Manager, Immigration Appeals, P.O. Box 6479, Station "A" Toronto M5W 1X3 |
| - report any change of address to the Canada Immigration Centre and the Immigration and Refugee Board, Appeal Division, within 72 hours of making such a change. |
| - make reasonable efforts to seek and maintain full time employment and FORTHWITH report any change of employment. |
| engage in or continue psychotherapy or counselling. |
| NOTE: If you withdraw your consent to the foregoing condition, you must bring an application to the Immigration Appeals Division, forthwith to have this condition removed. |
| make reasonable efforts to maintain yourself in such condition that your alcoholism will not cause you to conduct yourself in a manner dangerous to yourself or anyone else; |
| - not knowingly associate with individuals who have a criminal record or who are engaged in criminal activity; |
| - not own or possess offensive weapons or imitations thereof and; |
| - keep the peace and be of good behaviour. |
[6] At the review of the stay, which was held on February 15, 1999, the applicant was not represented by counsel and appeared on his own. He testified that he was employed at Paramount Paper Converters, working six days a week and is on call for the seventh. In a two-week period, the applicant testified, and the panel accepted, that he can work as much as 60-80 hours of overtime. The panel found that he was satisfying the requirement to maintain full-time employment. The condition regarding his alcoholism was also satisfied, as he testified that he had not consumed alcohol in the preceding three years. The panel found, however, that the applicant had not kept a number of the other conditions. In particular, the panel found that he (a) had not reported as required, (b) did not continue with his psychotherapy or counselling, (c) did not provide the Appeal Division with the six-month reports of his therapy with Dr. Ratnanather, (d) did not make reasonable efforts to attend ESL language classes, and (e) did not keep the peace or maintain good behaviour.
Issue I: Insufficient Notice
[7] The applicant argues that the decision was unlawfully made, specifically that it was not made in compliance with the two-stage process that is said to be required by the legislation and the jurisprudence. In my opinion, the statutory process was followed and the panel was within its lawful authority to deny the applicant's appeal and revoke the stay at the time it did so. The appeal process at issue here is governed by section 74 of the Immigration Act,1 which provides as follows.
| 74. (1) Where the Appeal Division allows an appeal made pursuant to section 70, it shall quash the removal order or conditional removal order that was made against the appellant and may |
74. (1) Si elle fait droit à un appel interjeté dans le cadre de l'article 70, la section d'appel annule la mesure de renvoi ou de renvoi conditionnel et peut_: |
||
|
|
||
|
|
||
| (2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable. |
(2) En cas de sursis d'exécution de la mesure de renvoi ou de renvoi conditionnel, l'appelant est autorisé à entrer ou à demeurer au Canada aux éventuelles conditions fixées par la section d'appel. Celle-ci réexamine le cas en tant que de besoin. |
||
| (3) Where the Appeal Division has disposed of an appeal by directing that execution of a removal order or conditional removal order be stayed, the Appeal Division may, at any time, |
(3) Dans le cas visé au paragraphe (2), la section d'appel peut, à tout moment_: |
||
|
|
||
|
|
||
|
|
||
|
|
[8] The applicant's position is that the jurisprudence of this Court requires that reviews of and changes to stays be undertaken in a two-step manner. The first step, it is argued, is a determination under s-s. 74(2) of whether the Board will consider amending the terms and conditions of the stay, or cancelling the stay. The second step, that of amending or cancelling the stay, can only be undertaken if the first step has been undertaken. Ultimately, this is a matter of giving the person whose stay is in question adequate notice of the possibility of an amendment or cancellation.
[9] For this proposition, the applicant cites Canada (Minister of Employment and Immigration) v. Lewis2 and Stocking v. Canada (Minister of Citizenship and Immigration).3 In my opinion, neither case is determinative in the circumstances of the present case. In Lewis, the applicant was the subject of an appeal and a stay. The Minister sought an order under the Immigration Appeal Board Rules (Appellate), 1981 for the appeal to be dismissed and for the immediate execution of the deportation order. The Court of Appeal decided that subsections 76(2) and 76(3) (now 74(2) and 74(3)) lead to a two-step process. Upon a motion by the Minister, the Board first has to decide whether it will review the appeal and stay, and if so, it then must undertake the review. In Stocking, the Minister sought to have the terms of the appellant's stay amended. The Appeal Division gave notice to the appellant that an oral hearing would be held "in order to ascertain whether the terms of the stay have been complied with." There was no question in Stocking that the appellant had complied with all the terms set out in the stay of his deportation order. At the oral hearing, the Board of its own motion decided to review and cancel the appellant's stay and dismiss his appeal. Mr. Justice Nadon concluded, upon judicial review, that the Board could, if proper notice is given, examine the appellant's conduct and make such an order. In the circumstances where only notice of review of compliance had been given and compliance was proven, Nadon J. concluded that the decision to cancel the stay and dismiss the appeal could not stand.
[10] It is my opinion that the statutory process was complied with in this case. This was not a review initiated by the Minister. The decision to review the stay periodically was made when the stay was first entered and the Appeal Division set out a schedule of periodic reviews. I conclude that the applicant had sufficient notice that the oral hearing would concern itself with compliance with the terms of the stay of the deportation order. The applicant was served with a notice to appear. He had attended a number of these reviews in the past, and it is not conceivable that a reasonable person would not be aware of the purpose of the reviews. The applicant had notice, at least from the last extension of the stay in November, 1997, that the review was being held to consider whether he was in compliance with the conditions of the stay. In my opinion the Appeal Division acted within its authority under s-ss. 74(2) and (3) of the Act and in doing so it gave appropriate notice of the purpose of the review to be conducted.
[11] The applicant further argues that the Board violated the principles of natural justice when the Board member failed to advise the applicant of the potential consequences of the hearing, consequences that could include a cancellation of his stay and a dismissal of his appeal. The applicant submits that, at the hearing, he had no understanding or idea of the potential outcome of the oral review. To support this submission, the applicant points to a transcript of the oral review prepared by and sworn to by a legal assistant in his counsel's office:
| [The board]: Sir, I am really beginning to wonder if you appreciate the gravity of what I am dealing with here. Because I'm not dealing with whether or not you can sponsor a fiancee to come here. I'm dealing with the fact that you've still got an outstanding deportation order against you. That you were given a stay of it on certain conditions. And it appears that you haven't really been following some of these conditions. And you've also been in some trouble with the law. When you were told to keep the peace and be of good behaviour. So I'm giving you a chance to tell me if you have anything to say about that. |
| [The applicant]: I will be of good behaviour in Canada. That's all I want to say. |
| [The board]: Anything else you wanted to say sir? |
| [The applicant]: No. |
[12] In my opinion, the applicant had sufficient notice of the possibility of having the stay cancelled and having his appeal dismissed by the Appeal Board. I have reached this conclusion for a number of reasons. First, this was not the first time that the applicant had appeared at a review of his stay order. The applicant received notice of the oral review. Further, he was the subject of a stay with a number of conditions that he was required to follow. This was a periodic review and continuing the stay depended upon compliance with the conditions. At the hearing, the Board member gave the applicant further notice of the gravity of the situation and offered him the opportunity to make further submissions. Finally, even if I were persuaded that the applicant was not aware of the potential consequences of the review hearing that would merely acknowledge his ignorance of the law, which is no basis for the Court to intervene where the Appeal Board acted within its authority under s. 74 of the Act.
Issue II: Findings Regarding Compliance With the Conditions of the Stay
[13] The applicant submits that the Board made five errors regarding the applicant's compliance with the terms of the stay order. First, it found that the applicant had not reported to the Regional Manager of Immigration Appeals as ordered when, the applicant submits, he was not given notice of when he was to report. Second, the applicant argues that the Appeal Board erred in law by receiving evidence that was unsworn, specifically evidence given by counsel for the respondent Minister. Third, the applicant argues that the Board misapprehended the applicant's evidence and erroneously concluded that he was not in compliance with the terms of the stay regarding visits to his counsellor. Fourth, the applicant disputes the conclusion regarding the applicant's attendance at English as a Second Language classes. Fifth, and finally, the applicant alleges that the Board made a finding of fact that was perverse and without foundation in the evidence when it concluded that the applicant had not kept the peace, another condition of the stay order, particularly when it concluded that the applicant had been "involved in charges involving assault and violence."
[14] It is my opinion that the Appeal Board did not err when it concluded that the applicant did not comply with the order to report periodically to the Regional Manager of Immigration Appeals. Unlike the previous stay orders, the terms of the order issued in November 1997 did not set out dates by which reports must be received. The applicant also said at the hearing of the Board that he did not receive a copy of that amended order, though he did admit being told its terms at the hearing in November, 1997. The Board concluded that the applicant had been served, by mail, with the order, and that the applicant had never made any inquiries of the Board or the Minister's department about his obligation to report. Each previous stay order had included reporting requirements and the stay order dated February 21, 1997, before the last renewal in November 1997, contained the following provisions:
| - report by mail, using the reporting form provided by the Appeal Division, to the Manager, Immigration Appeals ... on March 30th, 1997, and every 6 months thereafter on the following dates: |
| September 30, 1997 March 30, 1997 |
| September 30, 1998 March 30, 1998 |
| September 30, 1999 March 30, 1999 |
| September 30, 2000 |
[15] This previous stay order, in February 1997, included reporting dates extending beyond the period of time in question here. In light of the foregoing, I conclude that the finding of the Board that he had not complied with the reporting requirements was reasonable. The applicant had notice that reporting was required and he did not do so at any time between November 1997 and January 1999, either on the dates provided by the February 1997 order, or any other dates, and he made no effort to enquire about appropriate reporting dates on a six month schedule, or otherwise.
[16] The applicant alleges a reversible error on the part of the Board in receiving unsworn evidence from the respondent Minister's counsel. The Board wrote, in its reasons dated February 15, 1999:
| The respondent's counsel testified that the respondent department received reports up until September 30, 1997, but has received none since. Therefore the appellant has failed to report on March 30, 1998, and September 30, 1998. [emphasis added] |
As an administrative body, the Immigration and Refugee Board Appeal Division has such power as is given to it by statute. With regard to receiving evidence, the Appeal Board's power comes from s-s. 69.4(3) of the Immigration Act, which reads:
| (3) The Appeal Division has, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record and, without limiting the generality of the foregoing, may |
(3) La section d'appel a, pour la comparution, la prestation de serment et l'interrogatoire des témoins, ainsi que pour la production et l'examen des pièces, l'exécution de ses ordonnances et toute autre question relevant de sa compétence, les attributions d'une cour supérieure d'archives. Elle peut notamment_: |
||
|
|
||
|
|
||
|
|
[17] In paragraph 69.4(3)(c), Parliament has given the Appeal Division considerable discretion to hear evidence that it concludes is "credible or trustworthy and necessary for dealing with the subject-matter before it". In the ordinary course, counsel for one of the parties does not give evidence, particularly unsworn evidence. This practice, in my opinion, applies to adducing evidence before an administrative tribunal. But in this case, the "evidence" proffered was simply a statement of the applicant's record of compliance that was available on his file. If it was an error for the Board to treat counsel's submission as evidence, it was an inconsequential error. Under oath, the applicant himself stated that he did not report as required. The facts which counsel submitted were not contentious, they were available in the applicant's record. The Court will not interfere where there is no significant factual error underlying the decision of the Appeal Board.
[18] The last three errors of fact alleged can be considered together. It is my opinion that the Board was reasonable in its conclusion that the applicant did not comply with the terms of the stay order, which, inter alia, required him to (a) receive counselling and forward reports from this counsellor, (b) attend English as a Second Language classes and (c) keep the peace and be of good behaviour. There was evidence before the Board to support each of these conclusions about the applicant's failure to comply. These findings of fact cannot be said to be perverse, capricious or without regard to the evidence, and in these circumstances, the Court may not intervene.
Conclusion
[19] It is my opinion, having reviewed the submissions of the parties, the decision of the Board and the record, that the Board fulfilled its duty of fairness, or its obligations of natural justice, to the applicant by giving sufficient notice of the nature of the hearing he was summoned to attend and by allowing him adequate opportunity to present his case. It is also my opinion that the factual conclusions made at the oral hearing were reasonably based on evidence that was properly before the Board. The intervention of this Court is not warranted.
[20] For these reasons, the application for judicial review and to have the decision set aside is dismissed.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
June 16, 2000
__________________1 R.S.C. 1985, c. I-2, as amended.