Date: 19990319
Docket: IMM-1573-98
Ottawa, Ontario, the 19th day of March 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
VELUPILLAI PUSHPANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
ORDER
This application for judicial review is allowed. The decision of the Appeal Division denying leave is quashed. The application to reopen the appeal is remitted to the Appeal Division for re-consideration by a differently constituted panel.
Karen R. Sharlow
Judge
Date: 19990319
Docket: IMM-1573-98
BETWEEN:
VELUPILLAI PUSHPANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
SHARLOW J:
[1] This is a judicial review of the decision of the Appeal Division of the Immigration and Refugee Appeal Board, dated March 12, 1998, which denied the applicant's request to reopen an appeal of a deportation.
[2] The applicant came to Canada in 1985. He became a permanent resident in 1987. In August of 1988 he was convicted of a serious drug offence and sentenced to eight years imprisonment. He was released on parole in 1991. He married in that same year. There is no evidence of any parole violation or other criminal activity. His sentence was completed in 1996. He has been employed since his release. His wife and three children are dependent on him for support.
[3] The applicant has an outstanding claim for refugee status. The refugee proceedings have been unusually lengthy because of an appeal to the Supreme Court of Canada on a point of law: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and [1998] 1 S.C.R. 1222.
[4] The deportation order that is the foundation of this proceeding was issued on June 22, 1992. It is a conditional order pursuant to subsection 32.1(2) of the Immigration Act, and was made because the applicant is a person described in subparagraph 27(1)(d)(i) of the Act, a permanent resident who has been convicted of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
[5] The conditional deportation order was appealed to the Immigration and Refugee Board Appeal Division pursuant to subsection 70(1). That provision gives the Appeal Division what has been called an "equitable jurisdiction" in that it may allow the appeal on the ground that, "having regard to all the circumstances of the case, the person should not be removed from Canada."
[6] The appeal was dismissed in 1993. Written reasons were not given because they were not requested within the statutory time limit.
[7] The record indicates that the Appeal Division had before it evidence of the facts relating to the 1988 conviction and the parole granted in 1991, as well as the absence of criminal activity or parole violations apart from the 1988 conviction. The Appeal Division was also aware that the applicant was married and had, at that time, one child aged three and one-half months. There was evidence that the applicant's wife was about to return to work after taking maternity leave, and that the applicant was employed.
[8] On January 22, 1998, the applicant applied to reopen the appeal on the basis that there was evidence of rehabilitation and family dependence that was not and could not have been before the appeal board in 1993. The point of the 1998 application for reconsideration was to have an opportunity to put before the Appeal Division evidence of an additional five years of good behaviour, continued gainful employment, and the dependence of his wife and three children, two of whom were born after 1993. It is common ground that in an application to reopen, the Appeal Division may consider evidence of events occurring after the conclusion of the appeal.
[9] The application to reopen was heard on March 12,1998, and dismissed by an order signed on March 19, 1998. The Appeal Division member who heard the application gave written reasons dated March 12, 1998. He concluded:
| Although the applicant can today invoke more favourable factors than he could at the time of the original hearing, they do not suggest to me that there is a reasonable possibility that the Appeal Division might do other than dismiss the appeal of this applicant. |
[10] It was argued on behalf of the applicant that the Appeal Division based the decision solely on the facts relating to the 1988 offence, ignoring the evidence of rehabilitation and family dependence, or at least giving that evidence no weight. In support of this argument, the following comments were cited from the reasons:
| This is a case in which the applicant asserts that he came to Canada fleeing persecution. A little over two years after his arrival he is involved in a conspiracy to traffic in one of the most dangerous narcotics. Two and one half years after his arrival he finds himself incarcerated, serving a substantial sentence. The fact the applicant was sentenced to eight years is a clear indication of the attitude the sentencing judge took to this first-time offender. |
| [...] Another significant factor is that the applicant repays the country in which he is seeking asylum by engaging in conspiracy to traffic heroin within three years of arrival, and being convicted in the same year that he is granted landing in Canada. |
[11] The Respondent argues that all of the relevant evidence was before the Appeal Division, which was entitled to determine the weight of the evidence and in particular to determine, as it did, that the factors in favour of the Applicant were:
| ... heavily outweighed by the nature of the offence, the length of the sentence imposed and the fact that it was committed so soon after the applicant's arrival. |
[12] This is the nub of the Appeal Division's conclusion. However, in my view it is not supportable in principle.
[13] First, the time of commission of the offence is a neutral fact. A serious offence is serious whenever it is committed.
[14] Second, there is no evidence in the record on which it could be determined that the sentence in this case was longer or shorter than the sentences imposed in other cases involving similar offences.
[15] That leaves only the single fact of the commission of the offence as the basis of the decision. But that is what led to the issuance of the conditional departure order. On an appeal of such an order under subsection 70(1), the Appeal Division must consider all of the circumstances of the case in deciding whether or not the person should be removed from Canada. Such an appeal would be futile if the fact of the commission itself is sufficient to deny the appeal: Lau v. Minister of Employment and Immigration, [1984] 1 F.C. 434 (F.C.A.).
[16] After reviewing the reasons for the decision and the record, I have concluded that the decision cannot stand because the Appeal Board member was unduly influenced by irrelevant considerations.
[17] This application for judicial review is allowed. The decision of the Appeal Division denying leave is quashed. The application to reopen the appeal is remitted to the Appeal Division for re-consideration by a differently constituted panel.
Karen R. Sharlow
Judge
Ottawa, Ontario
March 19, 1999