Ottawa, Ontario, February 27, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
and
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] Section 71 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), requires that, for the Panel to have the jurisdiction to re-open an appeal, there must be a failure to observe a principle of natural justice for which the Immigration Appeal Division (IAD), itself, is responsible. The breach must be the fault of the IAD, not due to the wilful choice (or deemed wilful choice) of the person concerned.
[2] If any breach of natural justice occurred due to the Respondent’s wilful choice (or deemed wilful choice) to miss the hearing, then, to allow the request to re-open, on the basis of that wilful choice (or deemed wilful choice) of the Respondent to miss the hearing, would be to disregard the purpose for which the right to re-open exists.
INTRODUCTION
[3] The Applicant asserts that its application for judicial review of the IAD decision to re-open the Respondent’s appeal must be allowed, given the errors of law committed by the Panel:
· assessing whether the principles of natural justice had been infringed;
· understanding its jurisdiction when assessing a motion to re-open under s. 71 of the IRPA;
· in drawing a finding that has absurd consequences; and
· applying the jurisprudence relevant to its determination.
BACKGROUND
[4] The Respondent, Mr. Gregory George Ishmael, entered Canada as a permanent resident on January 23, 1991. He is married and has eight children in Canada, all of whom are Canadian citizens. He resides with his wife and four children in Scarborough.
[5] Mr. Ishmael, was found inadmissible under three provisions of the former Immigration Act, R.S.C. 1985, c. I-2, and a deportation order was issued against him. He appealed the deportation order to the IAD, where he sought a stay of the order for four years based on all the circumstances of his case. In June 2001, the IAD granted Mr. Ishmael a four year stay of the removal order, on some eight terms and conditions. (Caracciolo Affidavit, Exhibit “A”, pp. 1-2 and 14-16; Applicant’s Application Record, pp. 15-16 and 28-30).
[6] On May 19, 2005, the IAD advised the parties that it intended to conduct, a four year review of Mr. Ishmael’s stay, in chambers. On June 3, 2005, the Applicant invited Mr. Ishmael to submit information concerning his adherence to the terms and conditions imposed on his stay. This invitation was sent to Mr. Ishmael’s home at 59 McKnight Drive, Scarborough, Ontario. (Caracciolo Affidavit, Exhibits “B” and “C”; Applicant’s Application Record, pp. 31-32).
[7] On June 9, 2005, the Applicant requested that the IAD conduct an oral review of Mr. Ishmael’s stay of removal. This request was copied to Mr. Ishmael at his home at 59 McKnight Drive, Scarborough, Ontario. (Caracciolo Affidavit, Exhibit “D”; Applicant’s Application Record, pp. 33-44).
[8] On June 14, 2005, the Applicant wrote the IAD advising of its position on how Mr. Ishmael failed to meet the terms and conditions of his stay. The evidence adduced by the Applicant arose out of a meeting with Mr. Ishmael. The meeting stemmed from the June 3, 2005, Call-in-Notice that was sent to Mr. Ishmael’s home at 59 McKnight Drive, Scarborough, Ontario. The Applicant’s June 3, 2005, letter did reach Mr. Ishmael when it was sent to 59 McKnight Drive, Scarborough, Ontario. (Caracciolo Affidavit, Exhibit “E”; Applicant’s Application Record, pp. 45-51).
[9] Mr. Ishmael was advised by telephone that the hearing on his appeal would occur on November 30, 2005. He was also sent a written Notice to Appear on June 27, 2005, advising him of the November 30, 2005, hearing, to his home address – 59 McKnight Drive, Scarborough, Ontario. The hearing into Mr. Ishmael’s stay was held on November 30, 2005; however, Mr. Ishmael did not attend. The IAD declared Mr. Ishmael’s appeal abandoned due to this failure to attend the hearing. Caracciolo Affidavit, Exhibits “F” and “G”; Applicant’s Application Record, pp. 52-55).
[10] On February 3, 2006, Mr. Ishmael filed a motion to re-open his appeal. The motion was based on the understanding that the IAD sent the Notice to Appear for the November 30, 2005, hearing to the wrong address (59 McKnight Drive, Scarborough, Ontario) as opposed to Mr. Ishmael’s correct address (59 McKnight Drive, Toronto, Ontario). Mr. Ishmael also acknowledged that he received correspondence in the past from the Immigration and Refugee Board (IRB) and the Canadian Border Services Agency (CBSA) that had been directed to him at the Scarborough address. Mr. Ishmael never stated that he did not receive the June 27 Notice to Appear. He submitted, however, that the appeal should be re-opened as the Panel breached the principles of natural justice by not providing him with adequate notice of the hearing date. (Caracciolo Affidavit, Exhibit “H”, pp. 4-5, 16-22; Applicant’s Application Record, pp. 56-77).
[11] The Applicant relied on the following evidence to oppose the motion:
· The Respondent received a letter sent to him at 59 McKnight Drive, Scarborough, Ontario;
· Information from the Canada Post website indicating that the Respondent’s correct mailing address was 59 McKnight Drive, Scarborough, Ontario;
· A copy of the Respondent’s T4 indicating that he resided at 59 McKnight Drive, Scarborough, Ontario;
· A copy of a Citizenship and Immigration Canada (CIC) “Reporting Form” that the Respondent completed on December 2004, wherein he indicated that he resided at 59 McKnight Drive, Scarborough, Ontario; and
· A copy of an IRB Statement of Service indicating that the June 27, 2005, Notice to Appear was sent to the Respondent at his home address of 59 McKnight Drive, Scarborough, Ontario.
(Caracciolo Affidavit, Exhibit “I”; Exhibits “A”, “B”, “C”, “D”, “E” to the Foreman affidavit; Applicant’s Application Record, pp. 90-92-94-96-99 and 100).
The Applicant argued that Mr. Ishmael’s appeal could not be re-opened because there was no evidence that he failed to receive the June 27, 2005, Notice to Appear. The Applicant argued that Mr. Ishmael did not show that there had been a breach of natural justice that would justify re-opening the appeal. (Caracciolo Affidavit, Exhibit “I”; Applicant’s Application Record, pp. 80-85).
[12] The IAD allowed the motion to re-open. The Panel determined that it was not credible that Mr. Ishmael did not receive the June 27, 2006, Notice to Appear and that Mr. Ishmael was aware that a hearing of his stay would be held on November 30, 2005, that he was aware of this, as of June 22, 2005, and as well that Mr. Ishmael likely received the Notice to Appear. The Panel concluded that the IRB dispensed with its obligation to inform Mr. Ishmael of the time and place of his hearing and that it was Mr. Ishmael who was accountable for his failure to attend the hearing; however, the Panel granted the motion to re-open on the basis that it would not be fair for Mr. Ishmael’s case to be dismissed without giving him an opportunity to explain why he did not attend the hearing and why his appeal should not be declared abandoned. (Reasons for decision, pp. 3-6; Application record, pp. 7-10).
[13] In paragraph 3 of his affidavit, Mr. Ishmael asserts that he never received a Notice to Appear for the November 30, 2005, hearing; however, this assertion sharply contrasts with what the Panel found – Mr. Ishmael knew in June 2005 that a hearing into his appeal would be held on November 30, 2005; furthermore, the real question is whether Mr. Ishmael received adequate notice of the November 30, 2005, hearing. Mr. Ishmael admits that he knew of the November 30, 2005, hearing in June 2005 when he was informed by the Board that a hearing would take place on November 30, 2005. As such, even if Mr. Ishmael did not receive a Notice to Appear for the November 30, 2005, hearing – contrary to the finding of the Panel – this does not signify that he was denied adequate notice of the hearing to attend it and present his position. (Applicant’s application record, p. 8, para. 12; Affidavit of Respondent, paras. 3 and 5 (Respondent’s Application Record, p. 1).
ISSUE
[14] Did the Panel err in ordering the appeal re-opened?
STANDARD OF REVIEW
[15] With respect to questions of law, the standard of review is that of correctness, the Court may intervene where it is demonstrated that an error in law occurred. (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] S.C.R. 539).
ANALYSIS
Did the Panel err in ordering the appeal re-opened?
[16] Section 71 of the IRPA only permits the IAD to re-open an appeal where it failed to observe a principle of natural justice.
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71. The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice.
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71. L’étranger qui n’a pas quitté le Canada à la suite de la mesure de renvoi peut demander la réouverture de l’appel sur preuve de manquement à un principe de justice naturelle. |
[17] Mr. Ishmael based his motion to re-open on his failure to receive the Notice of Application for the November 30, 2005, hearing. He asserted that the lack of notice deprived him of the right to be heard. (Caracciolo affidavit, Exhibit “H”, pp. 15-20; Applicant’s Application Record, pp. 70-75).
[18] The requirement of adequate notice is designed to ensure basic natural justice guarantees – knowledge that a hearing will be held: to ensure an opportunity to attend the hearing and make submissions.
[19] The Panel found that Mr. Ishmael was aware of the November 30 hearing:
[12] If is true that the applicant never directly says in his statutory declaration that he was unaware of his November 30, 2005 hearing but rather states that he did not receive a Notice to Appear for his oral review. But there is a clear inference made by the applicant, in the panel’s opinion, that in not receiving his Notice to Appear, he was unaware that he had a hearing on November 30, 2005. But there is evidence that at least in June 2005, he was aware of a hearing date scheduled for November 30, 2005. Based on the information before it, the panel is prepared to find that, on a balance of probabilities, the appellant did know of his hearing in June 2005 and did receive the Notice to Appear as it was sent to an address that has been effectively used as his home address.
…
[15] The issue for the panel to ultimately decide in an application for reopening under section 71 of IRPA is whether there was a failure to observe a principle of natural justice. The panel is satisfied the IAD dispensed its initial responsibility to duly notify the applicant of the time and place of his hearing before the IAD on November 30, 2005. It did so in writing to an address that the panel finds to be a reasonable and indeed reliable version of his home address and it communicated the same information orally to the applicant. The panel is satisfied that the applicant was aware of the time and place of his scheduled hearing. The fact that the applicant failed to appear is hardly the fault of the IAD; it is the applicant who is accountable for failing to appear on November 30, 2005, as required. The panel is of the opinion that this failure to appear is likely an oversight of some kind, not a deliberate effort to avoid appearing before the IAD. (Emphasis of the Court.)
[20] In finding that Mr. Ishmael has received notice of the November 30 hearing, the Panel, in effect, found that Mr. Ishmael was afforded the natural justice guarantee of adequate notice: knowledge of a hearing to be held concerning his interests and an opportunity to attend and make submissions in his case.
[21] The test for re-opening required the IAD to be satisfied that it breached a principle of natural justice. In the case at bar, on the allegation of a natural justice breach advanced by Mr. Ishmael, the implications of the Panel’s determination is that no natural justice breach could have occurred. It was, therefore, not open to the Panel to find a breach of natural justice – vis-à-vis Mr. Ishmael’s opportunity to attend the hearing and state his case that would have warranted re-opening the appeal.
[22] The Panel’s decision to re-open simply ignores its own assessment of the evidence and, therefore, falls outside of its jurisdiction to re-open an appeal. (If the Panel ignored IAD errors in this file, that is another matter, then, there may have been a breach of a principle of natural justice; it is just that the Panel cannot have it both ways: re-open the Appeal, if it did not breach natural justice; and not agree to re-open the appeal, if it did breach natural justice).
[23] Mr. Ishmael asserts that the Panel was correct in re-opening his appeal on the basis of a breach of natural justice as (according to Beals v. Saldanha, [2003] 3 S.C.R. 416) natural justice required that he be afforded the right to a notice of the hearing as well as an adequate opportunity to state his case; however, there are, at least, three reasons why this argument does not succeed under the present reasoning of the Panel:
a) Beals is a conflict of law decision, discussing the breach of natural justice exemption to the enforcement of foreign judgments. It is doubtful that the passage quoted by Mr. Ishmael makes any holding about the minimum standards of procedural fairness owed by the IAD. In this context, it exceeds the access to the opportunity to make submissions.
b) Even assuming that Beals did provide guidance as to what natural justice requires in the administrative law context, Mr. Ishmael was afforded the same. In the process by which his claim was declared abandoned, he was given both adequate notice of his hearing as well as adequate opportunity to state his position – adequate notice, in that, he was told of the hearing date in June 2005 and the opportunity to state his position on the ultimate decision of his appeal at the November 30, 2005, hearing. Mr. Ishmael had only to attend and make submissions. Thus, even under the rule in Beals, Mr. Ishmael was given that which natural justice required.
c) Mr. Ishmael proposes that the adequate notice requirement of natural justice only be met when the person affected actually attends the hearing and makes submissions. Not only would this be an incorrect expansion of the adequate notice requirement, it would bring the administrative decision-making process to a standstill, no decision could be made until the person concerned chose to attend and argue his case. In addition, it would effectively negate s. 71 of the IRPA – that a tribunal may have to declare an appeal abandoned when the person concerned chooses not to attend their hearing.
JURISDICTION TO RE-OPEN BASED ON PURPORTED NATURAL JUSTICE BREACH
[24] Section 71 of the IRPA, requires that, for the Panel to have the jurisdiction to re-open an appeal, there must be a failure to observe a principle of natural justice for which the IAD itself, is responsible. The breach must be the fault of the IAD, not of the wilful choice (or deemed wilful choice) of the person concerned.
[25] If any breach of natural justice occurred from Mr. Ishmael’s wilful choice (or deemed wilful choice) to miss the hearing, then, to allow the request to re-open on the basis, of that wilful choice (or deemed wilful choice) of Mr. Ishmael to miss the hearing, would be to disregard the purpose for which the right to re-open exists.
WRONG UNDERSTANDING OF WHAT IS A BREACH OF NATURAL JUSTICE
[26] The Panel granted the motion to re-open on the following basis:
[16] The panel is of the opinion that the principle of natural justice should consider the broader issues of procedural fairness in this case, that is to consider more than the question of whether the IAD duly served notice to the applicant of his oral review. Should the applicant, who did appear before the IAD as required in 2001 for his appeal hearing, who has demonstrated a significant degree of compliance with the conditions of his stay, who has worked cooperatively with CBSA, who at the end of his four years stay, is potentially in a position to have his appeal allowed, who duly pursued an application to re-opening in a timely fashion, be subject to removal from Canada for having failed to appear at a scheduled oral review, without any opportunity to explain why he failed to appear and to show cause why his appeal should not be abandoned. The panel is of the opinion that it is within the purview of the IAD to re-open the applicant’s appeal on the basis that, given the particular facts of this case, not to do so would be a breach of procedural fairness and natural justice.
[27] In making this finding, the Panel erred in understanding its role in assessing if the principles of natural justice had been infringed. Natural justice is a general concept that guarantees a process by which a person is afforded minimum fairness requirements. This entails a specific fairness assessment of that which is warranted in the circumstances. It is an assessment of what procedural fairness entitlements – right to notice, right to counsel, right to confront adverse evidence, etc. – are required in a given context. A procedural fairness assessment consists of the setting of a fair procedure; while natural justice is the overall barometer reading to determine whether the person was afforded minimum fairness requirements. That can be illustrated using the case at bar. Ensuring that the substantive and procedural rights of Mr. Ishmael were respected constitutes the procedural fairness guarantee, embodied in the concept of natural justice.
[28] The task for the Panel deciding the motion to re-open was to assess whether the IAD gave Mr. Ishmael adequate notice of his November 30, 2005, hearing to enable him to attend the hearing and make submissions in his case.
RATIONALE PRODUCES ABSURDITIES
[29] The rationale of the Panel’s decision to re-open the appeal produces the absurdities of rendering ss. 168(1) of the IRPA useless and would result in the situation that an appellant could ignore a direction to attend without consequence until it becomes beneficial for him so to do.
[30] Subsection 168(1) of the IRPA permits a Division of the IRB to declare a proceeding abandoned, if it is of the opinion that the person concerned is in default of the proceeding, including, the grounds that the person failed to appear for a hearing; however, if the IAD Panel is correct, and an appellant before the Appeal Division must be given an opportunity to explain why a case should not be declared abandoned; then, it would not be possible for a Division to declare a claim, abandoned, on the basis of the failure of the person concerned to attend the hearing. Not only is the Panel’s interpretation inconsistent with the intent of Parliament in ss. 168(1) of the Act, it also poses the difficulty, outlined in Ye v. Canada (Minister of Citizenship and Immigration), 2004 FC 964, [2004] F.C.J. No. 1185 (QL).
[31] In Ye, Justice Michael Kelen explained that the new rule in s. 71, allows a re-opening on the basis of a breach of natural justice to prevent abuses of the IAD:
[18] …Without limiting the right of the IAD to reopen an appeal, the IAD immigration process becomes a merry-go-round. In my view, Parliament has limited the right of the IAD to reopen an appeal to only cases involving breaches of the rules of natural justice. For these reasons, this application for judicial review will be dismissed.
[32] A similar “merry-go-round” situation could arise in the case at bar. The appellant could continually ignore Notices to Appear, but not face any consequences until attending a hearing to decide whether the appeal should be declared, abandoned. Such a situation would only further risk the misuse of the Appeal Division’s process, and put the appellant in the position of directing the appeal.
[33] The points of distinction, argued by Mr. Ishmael in respect of the Ye decision, are not relevant for the following reasons:
· The issue in Ye is relevant to the case at bar, in respect to the scope of the Appeal Division’s jurisdiction to re-open an appeal under s. 71 of the IRPA. The factual differences between Ye and this case – as they do not detract from the applicability of the principles enunciated in Ye – cannot be used to argue that Ye does not apply.
· The Panel’s finding that the person must be allowed to explain why the case should not be declared abandoned after failure to appear at the hearing would produce absurdities. Mr. Ishmael’s arguments for distinguishing Ye do not alter the fact that the Panel’s decision produces absurdities;
· The fact that Ye sought judicial review of the decision to dismiss the original appeal does not bar its application to this case. Mr. Ishmael, having obtained (in part) the relief that he sought from the Appeal Division – a stay of his removal – had no need to seek judicial review of a negative decision as did Ms. Ye.
· Mr. Ishmael points to the fact that Ms. Ye enjoyed a full hearing before the Appeal Division but, then, so did he enjoy the same in 2001 – when his appeal resulted in the stay of his removal order – and on November 30, 2005, when he had the opportunity to attend the hearing to make submissions on that point.
· One should also consider the ultimate result in Ye. Ye sought a re-opening based on the purported incompetence of her counsel, which the Appeal Division did not accept. This finding was implicitly accepted by the Federal Court which found no reviewable error in the decision, not to re-open. As such, the Federal Court’s decision in Ye, in clarifying the standard application in s. 71, and in applying the standard, must be read as a pronouncement on the test for re-opening in s. 71, not just a specific case-limited consideration of the provision.
· Finally, Ye has been universally followed by the Federal Court as a pronouncement on how s. 71 of the IRPA should operate. It cannot be a decision of limited application as Mr. Ishmael suggests. (Griffiths v. Canada (Minister of Citizenship and Immigration), 2005 FC 971, [2005] F.C.J. No. 1194 (QL); Nazifpour v. Canada (Minister of Citizenship and Immigration), 2005 FC 1694, [2005] F.C.J. No. 2097 (QL); Baldeo v. Canada (Minister of Citizenship and Immigration), 2006 FC 79 [2006] F.C.J. No. 100 (QL)).
ERRONEOUS INTERPRETATION OF THE JURISPRUDENCE
[34] In deciding the motion to re-open, the Panel considered the Hung v. Canada (Minister of Citizenship and Immigration), 2004 FC 966, [2004] F.C.J. No. 1237 (QL) and Dubrézil v. Canada (Minister of Citizenship and Immigration), 2006 FC 142, [2006] F.C.J. No. 154 (QL) cases; however, the Panel erred in interpreting Hung and failed to appreciate the applicability of Dubrézil.
Erroneous interpretation of Hung
[35] The Panel interpreted Hung, above, as holding that natural justice requires that the appellant be given the opportunity to address the IAD on the merits of declaring an appeal abandoned before the appeal is declared abandoned.
[36] In Hung, the appellant agreed that his counsel would represent him at the scheduling conference. On the date of the scheduling conference, counsel was unable to attend due to a medical ailment. The Appeal Division dismissed the appeal due to the appellant’s failure to attend the scheduling conference.
[37] Hung should not govern the re-opening motion in this case. To begin with, there are important factual distinctions. The hearing, in Hung, was a scheduling conference, while the hearing that Mr. Ishmael failed to attend was a hearing on the merits of the appeal; furthermore, Hung had a valid reason for not attending the hearing – counsel stated that he would attend for the appellant but later could not attend due to illness. In contrast, the Panel, in the case at bar, determined that Mr. Ishmael was aware of the hearing date but failed to attend. (Reasons, p. 5, para. 15; Application Record, p. 9). The reason for the failure to attend in Hung – a medical ailment – is unintentional and not the result of the person concerned’s own conduct. Absence was due to a medical ailment that culminated in a lack of representation. That gave rise to the breach of natural justice, and not the failure to attend itself. Thus, given the different facts, the Panel should not have applied Hung to Mr. Ishmael’s case.
[38] The IAD Panel erred in determining the legal finding to be drawn from Hung. Justice François Lemieux overturned the decision to dismiss the motion to re-open, explaining that:
[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.
…
[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.
[39] Justice Lemieux did not find, as a general principle, that the Appeal Division must invite an appellant to explain why his case should not be declared abandoned in every situation where the appellant failed to attend a hearing. In contrast, Justice Lemieux found that natural justice required that Hung be given an opportunity because of the unique circumstances of his case: the illness of counsel denied the person concerned his right to attend the hearing; and, thus, have someone represent his interests. The Panel could not have interpreted Hung as requiring Mr. Ishmael be given an automatic opportunity to explain why his appeal should not be declared abandoned, and consequently, the Panel could not determine that Mr. Ishmael was denied natural justice by the IAD because he was not afforded such an opportunity.
[40] Finally, the wide interpretation that the Panel, in the case at bar, gave to Hung, could lead to illogical results. It would ignore the clear intention of Justice Lemieux to limit his findings on natural justice to the specific and unique circumstances of the case. The result, that a decision to declare the claim abandoned, could not be made, in each and every case, until counsel or the person concerned had the opportunity to explain their absence which would create a “merry-go-round” situation.
[41] The Panel is in error in the manner it determined that i) Hung governed the situation in the case at bar; and ii) that Hung set out a rule for determining a motion to re-open in every case.
Impact of Dubrézil
[42] The Panel noted that the Dubrézil case involved a fact pattern similar to the case at bar, but chose not to apply it. In so doing, the Panel breached the principle of stare decisis.
[43] Stare decisis requires that lower judicial bodies follow the decisions of higher judicial bodies on cases involving legal issues and sufficiently similar facts. Under the principle, the IAD Panel is required to follow a Federal Court decision in a motion to re-open involving similar facts.
[44] Dubrézil was summoned to appear at an IAD hearing; however, because he did not advise the Board of a change in his address, he did not receive the notice of the hearing and consequently did not attend. His appeal was declared abandoned pursuant to ss. 168(1) of the IRPA. Dubrézil made a motion to re-open his claim, citing his failure to receive the notice as grounds for the re-opening. The motion to re-open was dismissed. On judicial review, the Federal Court dismissed the application, finding that there could be no basis for-re-opening the appeal on natural justice grounds as any failure of Dubrézil to receive the notice was not the fault of the IRB, but of Dubrézil for failing to update his address with the Board.
[45] The determination in Dubrézil does apply to the case at bar. As in Dubrézil, Mr. Ishmael indicated to the Board that his address was 59 McKnight Drive, Scarborough, Ontario. If the June 27, 2005, Notice to Appear did not reach Mr. Ishmael, it is his fault, and not of the Board. Thus, the Panel, in the present case, unless the Panel could have shown a distinguishing feature, should have followed Dubrézil to find that there is no breach of natural justice in the circumstances of this case that would warrant re-opening the appeal. The Panel erred in law by not appreciating that Dubrézil was binding, and by failing to explain why it did not apply Dubrézil.
[46] Furthermore, the Court in Dubrézil determined that Hung did not apply in cases such as the case at bar:
[7] …In that matter, it should be stressed that the applicant did not show up at the scheduling conference on his counsel's advice, and not based on his own lack of diligence. Also, his counsel fell ill the day before the scheduling conference and it was for that reason that he was unable to attend his hearing.
[8] In this case, the facts are different. The IAD heard the applicant on the reasons justifying his failure to attend, but it did not consider the applicant credible. It considered all of the relevant facts, including the fact that the applicant had been duly advised by the notice that was given to him on October 31, 2003, that he had to inform the IAD of his change of address, which he never did. …
…
[10] Furthermore, giving the person who fails to appear the opportunity to explain the reasons for his default in all cases would render subsection 168(1) IRPA meaningless. …
…
[12] If the applicant's reasoning were followed, it would imply that each time a person is absent, lacks diligence or acts in such a way that clearly suggests that the appeal has been abandoned, the IAD would be bound to investigate to find those persons, to remind them of their obligations and to summon them to a new hearing before deciding that the proceedings are abandoned. I cannot accept such an interpretation, especially because in this case the applicant did not advise the IAD of the change in his contact information, so that in any event the IAD would not have been able to contact him to summon him to a new hearing if it had had such an obligation. The IAD was not bound to act as the applicant's legal counsel, or to remind him of the seriousness of the proceedings in which he was involved, or to ensure that he properly understood that he had to show up at his scheduling conference or that he was bound to advise the IAD of his change of address. The applicant did have the opportunity to argue his grounds at a full hearing before the IAD, but the IAD did not find that these grounds were sufficient to justify reopening the appeal.
[47] The Panel did not appreciate this determination or ignore it, but rather assumed that Hung applied. While it may have been open to the Panel to find that Hung did apply, the Panel was obliged to consider the comments about the applicability of Hung and explain why the circumstances warranted a departure from the Federal Court’s assessment of Hung in Dubrézil. This is especially true, as the Panel, in this case, as in Dubrézil, rejected the Respondent’s explanation of why he did not attend his hearing. In not considering the holding in Dubrézil, regarding the determination in Hung, and, thus, in deciding to apply Hung, the Panel committed a reviewable error.
PROBLEMS IN ABANDONMENT DECISION NOT RELEVANT
[48] Mr. Ishmael noted alleged errors in the IRB documents on the decision to declare his claim abandoned. The Respondent’s concerns should be raised before the IAD as grounds for the re-opening when the motion to re-open is returned to the Immigration Appeal Division for redetermination. (Respondent’s Application Record, p. 2, para. 14).
[49] Mr. Ishmael also suggests that the Appeal Division’s decision to declare the claim abandoned was taken without jurisdiction as it was made under the former Act which had been repealed when the abandonment decision was made; however, Mr. Ishmael’s assertion is incorrect as i) the abandonment decision was taken under the correct regime; and ii) allowing the latter decision to stand on that basis, without further explanation, leads to illogical consequences:
· Decision taken under the correct regime: there are two Notices of Decision declaring the claim abandoned. The December 12, 2005, Notice is issued pursuant to ss. 168(1) of the IRPA. While the December 12 Notice may not bear the correct name of the Respondent, it correctly identifies him by the IAD File number and his FOSS number. The December 21, 2005, Notice declaring the claim abandoned under s. 76 of the former Act, bears the correct name, IAD File number and FOSS Number of the Respondent; however, the December 21 Notice is issued in response to the Respondent’s information that the earlier Notice bears the wrong name. As of December 12, 2005, the Panel hearing the case declared the appeal abandoned under the proper provisions of the IRPA, even though it may have attached the wrong name on the Notice to Appear. As such, the IAD declared the claim abandoned under the correct statutory regime, and committed no reviewable error;
· Illogical consequences: Allowing the decision on the motion to re-open to stand on the basis of the errors in the previous decision to declare the claim abandoned, in light of the errors in determining the motion to re-open, would lead to illogical consequences: i) it would be contrary to the principle that administrative decisions, once accepted by the persons affected by them, should not be subject to collateral attack; ii) it would ignore the basis of this application for leave – the Panel’s errors of law and jurisdiction in assessing the motion to re-open – and offers no remedy for the errors; iii) it would imply that a latter error can correct a previous error, which cannot be the case for errors of jurisdiction as either the decision is within the decision-maker’s jurisdiction or it is not and this implication cannot stand; and iv) the proper manner to deal with the Respondent’s arguments on the jurisdiction of the decision to declare the appeal abandoned would be to have those concerns assessed by the Panel that determines the motion to re-open.
ORAL REVIEW
[50] Mr. Ishmael argues that the decision to re-open is correct as it would afford him an oral review on the merits of the continuation of his appeal. The right to such an oral interview – determined by the Panel in its reasons to be an entitlement required by natural justice in the circumstances – was afforded to Mr. Ishmael at the November 30, 2005, hearing, but he was deemed to have chosen, not to attend, despite having been given five months notice of the hearing date. The review could only occur if Mr. Ishmael is still interested in an appeal. Mr. Ishmael, in failing to attend, appeared to indicate that he was not interested in his appeal. Furthermore, such a proposition is affected by the same errors identified in Dubrézil – rendering ss. 168(1) of the IRPA inoperative, and putting the Appeal Division in a position akin to acting as counsel for the person. In any event, the assessment of the merits, due to the errors, if any, committed, should be reserved for the Panel hearing the continuance of the stay if the appeal is re-opened; that is, if a determination is made by the Panel that the decision to declare it abandoned is tainted by a breach of natural justice, stemming from the IAD, itself.
CONCLUSION
[51] Based on all of the above, the application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted panel of the Immigration Appeal Division.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be allowed and the matter be remitted for redetermination by a differently constituted Panel of the Immigration Appeal Division;
2. No serious question of general importance be certified.
Obiter
The judgment is largely based on the interpretation of the specific sections of the legislation in question; and, thus, the general principles that flow therefrom and apply therein.
That, having been said, in this specific case, unto itself (cas d’espèce), with its particular fact pattern, not only was the Panel mistaken in its interpretation of the current legislation, but, it also misunderstood distinctions, drawn in respect of the previous legislation.
Additionally, it is important to ascertain and ensure that the factual errors, committed by the Panel in respect of the individual circumstances of the Respondent, not be repeated.
Therefore, it is incumbent on the newly designated Panel to ensure a complete redetermination of the matter.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1984-06
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 14, 2007
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Mr. Martin Anderson
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Ms. Mary Lam
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SOLICITORS OF RECORD:
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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Mary Lam Barrister and Solicitor Toronto, Ontario
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