Citation: 2006 FC 164
Ottawa, Ontario, the 10th day of February 2006
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
SAHIMA SANA, NAVIDA SANA
Applicants
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review filed pursuant to section 70 of the Immigration Act, R.S.C. 1985, c. I-2 (old Act) of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the panel) dated August 11, 2005 by Philippe Patry, which dismissed the applicants’ appeal from a deportation order made against them on September 5, 2001 on account of want of jurisdiction.
ISSUES
[2] The only issue raised by the applicants is the following:
1. Did the panel make an error warranting this Court’s intervention when it found that the visas granted to the applicants had been validly cancelled?
[3] For the reasons that follow, this application will be dismissed.
FACTUAL BACKGROUND
[4] The principal applicant, Rafia Begum, is a citizen of Pakistan who was born on June 15, 1950. She arrived in Canada with her daughters Sahdia, Sahima and Navida on June 7, 2001. The applicants held visas issued pursuant to section 46.04 of the old Act, as dependants of a Convention refugee.
[5] Sana Ullah Choudry, the principal applicant’s husband and father of the other applicants, obtained Convention refugee status on June 2, 2000. He at once took steps to obtain permanent resident status. The applicants obtained visas on April 24, 2001 and left their residence for Islamabad on June 5, 2001.
[6] Also on June 5, 2001, Kaman Ashraf, an immigration officer with the Canadian High Commission in Islamabad, allegedly telephoned the residence of the principal applicant to tell her that the visas had been cancelled and to ask her to return them. The immigration officer alleged he spoke with a woman who identified herself as the principal applicant and who told him that she or her son Ehsanullah would bring the visas back in person the following day.
[7] The applicants stated that the immigration officer was lying and that under no circumstances did he have a conversation with the principal applicant on the telephone the day they left for Canada.
[8] On September 5, 2001, a deportation order was made by an immigration officer against the applicants.
[9] On October 16, 2001, the applicants appealed from the deportation order to a panel pursuant to section 70 of the old Act.
[10] On November 8, 2002, the respondent filed an application with the Refugee Division to quash the decision of June 2, 2000 which gave the principal applicant’s husband refugee status.
[11] This application was allowed on January 5, 2004 and the decision of June 2, 2000 was quashed.
[12] On April 25, 2004, the respondent filed a motion with the panel to dismiss the applicants’ appeal of the deportation order, alleging that the panel lacked jurisdiction. Counsel for the respondent alleged that the visas held by the applicants had been validly cancelled and that, therefore, they had no right of appeal.
[13] On July 10, 2004, the claims for refugee protection made by the applicants were dismissed by the Refugee Division.
[14] The application of April 25, 2004 was heard on August 12, 2004 and the hearing was presided by François Ramsay. The applicants’ counsel Mark Gruszczynski was not present at the hearing.
[15] On March 15, 2005, before Mr. Ramsay rendered a decision on this application, the parties were told that he was on sick leave for an indefinite period and it would be necessary to hold a new hearing presided by someone else. The date of this new hearing was set for May 3, 2005.
[16] On April 25, 2005, counsel for the respondent filed an application objecting to a hearing being held, alleging that the panel had all the information it needed to make a decision, and that the applicants had had an opportunity to be heard by the panel.
[17] At the hearing of May 3, 2005, Maria Esposito, an immigration consultant, appeared before the panel at 10:30 a.m. accompanied by the applicants. Noting again that Mr. Gruszczynski was absent, the panel concluded there had been a change of counsel and asked Ms. Esposito to submit a written argument before May 27, 2005 regarding the question of the panel’s lack of jurisdiction.
[18] After receiving written submissions from counsel for the applicants, the panel dismissed their appeal on August 11, 2005 on the ground of a lack of jurisdiction.
IMPUGNED DECISION
[19] In its reasons, the panel summarized the state of the law: in principle, a visa continues to be valid once issued, but this rule is subject to four exceptions set out by this Court in Canada (Minister of Citizenship and Immigration) v. Hundal, [1995] 3 F.C. 32 (T.D.). The fourth exception is that a visa ceases to be valid when it has been revoked or cancelled by an immigration officer.
[20] The panel then relied on Minister of Employment and Immigration v. Gudino, [1982] 2 F.C. 40, in which the Federal Court of Appeal held that a visa revocation made by telephone was valid and enforceable.
[21] The panel then stated that it did not find the principal applicant’s allegation to be credible that, on June 5, 2001, the immigration officer had spoken to her sister, not to herself, especially in view of the fact that the person the immigration officer spoke to said that she or her son Ehsanullah would bring the visas back to the Canadian High Commission in Islamabad (the applicant has a son named Ehsan Ullah).
[22] The panel then found that, as the visas had been validly cancelled, the applicants had arrived in Canada without a valid visa and they were neither permanent residents nor Convention refugees, they had no right of appeal under section 70 of the old Act.
ANALYSIS
[23] Section 70 of the old Act reads as follows:
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70 (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
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70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d’appel d’une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants :
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(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
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a) question de droit, de fait ou mixte;
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(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
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b) le fait que, eu égard aux circonstances particulières de l’espèce, ils ne devraient pas être renvoyés du Canada.
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(2) Subject to subsections (3) to (5), an appeal lies to the Appeal Division from a removal order or conditional removal order made against a person who
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(2) Sous réserve des paragraphes (3) à (5), peuvent faire appel devant la section d’appel d’une mesure de renvoi ou de renvoi conditionnel :
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(a) has been determined under this Act or the regulations to be a Convention refugee but is not a permanent resident; or
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a) les non-résidents permanents qui se sont vu reconnaître le statut de réfugié au sens de la Convention aux termes de la présente loi ou de ses règlements;
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(b) seeks landing or entry and, at the time that a report with respect to the person was made by an immigration officer pursuant to paragraph 20(1)(a), was in possession of a valid immigrant visa, in the case of a person seeking landing, or a valid visitor's visa, in the case of a person seeking entry.
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b) les personnes qui, ayant demandé l’admission, étaient titulaires d’un visa de visiteur ou d’immigrant, selon le cas, en cours de validité lorsqu’elles ont fait l’objet du rapport visé à l’alinéa 20(1)a).
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(3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds:
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(3) Les moyens que peuvent invoquer les appelants visés au paragraphe (2) sont les suivants :
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(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
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a) question de droit, de fait ou mixte; |
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(b) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada.
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b) le fait que, pour des raisons d’ordre humanitaire, ils ne devraient pas être renvoyés du Canada.
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(3.1) No appeal may be made to the Appeal Division by a person with respect to whom a certificate has been filed under subsection 40.1(1) where it has been determined, pursuant to paragraph 40.1(4)(d), that the certificate is reasonable.
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(3.1) Ne peut faire appel devant la section d’appel la personne à l’égard de laquelle il a été décidé, en application de l’alinéa 40.1(4)d), que l’attestation visée au paragraphe 40.1(1) est raisonnable.
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(4) A person described in subsection (1) or paragraph (2)(a) against whom a deportation order or conditional deportation order is made may appeal to the Appeal Division on any ground of appeal that involves a question of law or fact, or mixed law and fact, where the person is
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(4) Les moyens d’appel sont limités aux questions de droit, de fait ou mixtes dans le cas d’appels relatifs à une mesure d’expulsion ou d’expulsion conditionnelle interjetés par les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon le cas :
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(a) a person, other than a person described in subsection (5), with respect to whom a certificate referred to in subsection 40(1) has been issued; or
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a) ont fait l’objet de l’attestation prévue au paragraphe 40(1), sauf si elles sont visées au paragraphe (5);
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(b) a person, other than a person described in subsection (3.1), who has been determined by an adjudicator to be a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j) or (l).
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b) appartiennent, selon la décision d’un arbitre, à l’une des catégories non admissibles visées aux alinéas 19(1)e), f), g), j) ou l), sauf si elles sont visées au paragraphe (3.1). Restriction
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(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
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(5) Ne peuvent faire appel devant la section d’appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d’un arbitre :
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(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d)
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a) appartiennent à l’une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d) et, selon le ministre, constituent un danger pour le public au Canada;
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(b) a person described in paragraph 27(1)(a.1); or
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b) relèvent du cas visé à l’alinéa 27(1)a.1) et, selon le ministre, constituent un danger pour le public au Canada;
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(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
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c) relèvent, pour toute infraction punissable aux termes d’une loi fédérale d’un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l’alinéa 27(1)d) et, selon le ministre, constituent un danger pour le public au Canada.
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(6) Where the Appeal Division directs that the execution of a deportation order or conditional deportation order be stayed, the direction is of no effect and, notwithstanding subsection 74(2), the Appeal Division may not review the case, where the Minister is of the opinion that the person has breached the terms and conditions set by the Appeal Division and that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be
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(6) Malgré le paragraphe 74(2), la section d’appel ne peut réexaminer le cas — l’ordonnance de sursis visant la mesure de renvoi ou de renvoi conditionnel cessant alors d’avoir effet — si, selon le ministre, la personne n’a pas respecté les conditions du sursis et constitue un danger pour le public au Canada et que, selon la décision d’un arbitre, elle :
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(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d);
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a) appartient à l’une des catégories non admissibles visées aux alinéas 19(1)c), c.1), c.2) ou d);
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(b) a person described in paragraph 27(1)(a.1); or
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b) relève du cas visé à l’alinéa 27(1)a.1);
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(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed.
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c) relève, pour toute infraction punissable aux termes d'une loi fédérale d'un emprisonnement maximal égal ou supérieur à dix ans, du cas visé à l'alinéa 27(1)d). |
1. Did the panel make an error warranting this Court’s intervention when it found that the visas granted to the applicants had been validly cancelled?
[24] The applicants did not challenge the following legal principle: a visa may be validly cancelled by an immigration officer by telephone; however, they alleged that the panel has violated the rules of procedural fairness and natural justice by attaching greater evidentiary value to the immigration officer’s allegations and by dismissing their appeal without hearing their testimony.
[25] The applicants argued that the panel should have heard their testimony, since its decision was based on a question of fact involving their credibility.
[26] The applicants further argued that the panel’s request to Ms. Esposito to file written submissions indicated that there was a resumption of the hearing held before Mr. Ramsay, not a hearing de novo.
[27] In the alternative, the applicants argued that the panel made an error when it found that the testimony of the visa officer was credible.
[28] The respondent alleged that the applicants did not object to his application objecting to a new hearing to take place in due time, and are now barred from making such an objection.
[29] The respondent further submitted that it is somewhat paradoxical that the applicants are arguing that the panel should have heard their testimony viva voce on May 3, 2005 when they were not present at the hearing.
[30] The respondent also argued that the panel made no error in finding that the visa officer’s testimony was more credible than the applicants’ allegations, which are more clearly self-serving.
[31] I do not agree with the applicants, who appeared to blame their incompetent counsel for the fact that no objection was raised and no intervention made.
[32] The panel made no breach of the rules of natural justice or procedural fairness in making its decision without hearing the applicants’ testimony again. The principal applicant’s daughter had already testified on August 12, 2004 and explained it was actually the principal applicant’s sister who took the call from the visa officer (panel’s record, at pages 312 et seq.).
[33] On May 3, 2005, the applicants did not appear at the time indicated in the summons. However, an individual stated that she was not representing the applicants but was asking for an adjournment to another date. The panel decided to wait, and around 10:30 a.m., the immigration consultant appeared at the hearing accompanied by the applicants. The panel granted a delay so the consultant could file written submissions.
[34] It was not until after these submissions had been received that a decision was rendered. The Court is of the view that the applicants had an opportunity to present all their arguments.
[35] With regard to the credibility of the visa officer, the assessment of the credibility of testimony is a question of fact which is entirely a matter for the expertise of the panel and this Court’s intervention would only be warranted if there had been a patently unreasonable error of assessment. In Jessani v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127, Malone J. wrote at paragraph 16:
In this case, the Board was required to conduct an analysis of the evidence presented in order to determine credibility and to make findings of fact. In my analysis, the standard of judicial deference to be afforded the Board’s factual findings in relation to section 24 and subsection 70(1) of the Act is one of patent unreasonableness: see Canada (Minister of Citizenship and Immigration) v. Park, [2001] F.C.J. No. 289 (F.C.T.D.) at paragraph 12; Perkins v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1759 (F.C.T.D.) at paragraphs 16 and 18; Canada (Minister of Citizenship and Immigration) v. Owens, [2000] F.C.J. No. 1644 (F.C.T.D.) at paragraphs 30 and 31.
[36] In the case at bar, the affidavit of the visa officer is confirmed by the computer notes prepared on June 5, 2001 (panel’s record, at pages 139 and 141).
[37] The Court’s intervention is not necessary here.
[38] The parties did not submit any questions for certification and none are raised by this case.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5311-05
STYLE OF CAUSE: RAFIA BEGUM, SADHIA SANA,
SAHIMA SANA, NAVIDA SANA
v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 7, 2006
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Beaudry
APPEARANCES:
Olivier Chi Nouako FOR THE APPLICANTS
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Olivier Chi Nouako FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec