[1] This is an appeal of a decision of a Federal Court judge on a question certified under paragraph 74(d) of the Immigration and Refugee Protection Act, R.S. 2001, c. 27. The certified question states:

Does the Immigration Division have to consider the merits of the Minister's case when considering whether to accept a withdrawal of a request for an admissibility hearing where no substantive evidence has been accepted in the proceeding?

FACTS

[2] The respondent ("Mr. Sheremetov") has been a landed immigrant in Canada since December 1999. In March 2002, an immigration officer reported to the Deputy Minister of Citizenship and Immigration, pursuant to the Immigration Act, R.S.C. 1985, c. I-2 as amended, that in his opinion, Mr. Sheremetov had committed an act that constituted the criminal offence of fraud under the criminal code of the Ukraine. If committed in Canada, this act would have constituted an offence contrary to paragraph 362(1)(c) of the Criminal Code of Canada, R.S., c-34, s.1, subjecting the respondent to a maximum term of imprisonment not exceeding ten years. As a result, an unfavourable decision in an admissibility hearing before the Immigration Division could lead to Mr. Sheremetov's deportation.

[3] Mr. Sheremetov was given notice to appear for a scheduling hearing on September 20, 2002. The hearing resumed on November 6, 2002, when both the appellant ("the Minister") and Mr. Sheremetov sought an adjournment. The hearing then resumed on February 5, 2003.

[4] At the February 5, 2003, hearing, the Minister withdrew his request for the admissibility hearing. The Immigration Division accepted the withdrawal.

[5] Mr. Sheremetov sought judicial review asking for a writ of mandamus requiring the Immigration Division to compel the Minister to proceed with the admissibility hearing forthwith or for an Order of Prohibition enjoining the Minister from taking any further action.

DECISION ON THE JUDICIAL REVIEW

[6] The learned judicial review judge found that the Immigration Division should have taken into account that documents at the heart of the criminal charges in the Ukraine had not been produced. Had the Immigration Division done so and had it taken into account that no time limits were put on the Minister to reach a decision to apply to have the admissibility hearing reinstated, it could have granted a postponement of the hearing and heard representations as to rescheduling. In the alternative, the Immigration Division could have accepted the withdrawal of the request but given the Minister a time limit on any application to reinstate it. It appears that the judge was of the opinion that there were inordinate delays that "constitute[d] an abuse of process and impinge[d] on Charter rights." For these reasons, he granted the judicial review and remitted the matter to the Immigration Division for rescheduling of the admissibility hearing or to put a reasonable time limit on the application by the Minister to have the hearing reinstated.

THE RELEVANT PROVISIONS

[7] At issue is the interpretation of sections 5 and 6 of the Immigration Division Rules, SOR/2002-229, made under the Immigration and Refugee Protection Act.

[8] Subsection 5(1) states that if no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process. In such circumstances, subsection 5(2) provides that the Minister may withdraw a request by simple notification to the Immigration Division and the individual involved. On the other hand, if substantive evidence has been accepted in the proceedings, subsection 5(3) provides that the Minister must apply to withdraw the request.

[9] Under section 6, if the Minister wishes to reinstate a request for an admissibility hearing, he must make an application to the Immigration Division. The Division must allow the application if there was failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

[10] Sections 5 and 6 provide:

5. (1) Withdrawal of a request for an admissibility hearing is an abuse of process if withdrawal would likely have a negative effect on the integrity of the Division. If no substantive evidence has been accepted in the proceedings, withdrawal of a request is not an abuse of process.

(2) If no substantive evidence has been accepted in the proceedings, the Minister may withdraw a request by notifying the Division orally at a proceeding or in writing. If the Minister notifies in writing, the Minister must provide a copy of the notice to the other party.

(3) If substantive evidence has been accepted in the proceedings, the Minister must make a written application to the Division in order to withdraw a request.

6. (1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn.

(2) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice or if it is otherwise in the interests of justice to allow the application.

5. (1) Il y a abus de procédure si le retrait de la demande du ministre de procéder à une enquête aurait vraisemblablement un effet néfaste sur l'intégrité de la Section. Il n'y a pas abus de procédure si aucun élément de preuve de fond n'a été accepté dans le cadre de l'affaire.

(2) Dans le cas où aucun élément de preuve de fond n'a été accepté dans le cadre de l'affaire, le ministre peut retirer sa demande en avisant la Section soit oralement lors d'une procédure, soit par écrit. S'il le fait par écrit, il transmet une copie de l'avis à l'autre partie.

(3) Dans le cas où des éléments de preuve de fond ont été acceptés dans le cadre de l'affaire, le ministre, pour retirer sa demande, en fait la demande par écrit à la Section.

6. (1) Le ministre peut demander par écrit à la Section de rétablir la demande de procéder à une enquête qu'il a faite et ensuite retirée.

(2) La Section accueille la demande soit sur preuve du manquement à un principe de justice naturelle, soit s'il est par ailleurs dans l'intérêt de la justice de le faire.

ANALYSIS

[11] The judicial review judge acknowledged that no evidence at all had been accepted in the proceeding. However, in the judge's view, the fact that the documents that the Minister had been relying upon had not been produced, and the fact that the Minister had still not sought reinstatement of the proceedings after another year had passed constituted an abuse of process. At paragraph 17 of his Reasons, he stated:

Have the Ukrainian authorities given the Minister copy of the documents purportedly signed by Mr. Sheremetov? If not, they have no case. If they have, why hide them? If more time was needed, the Minister could have sought an adjournment. He still has not sought to reinstate the hearing, notwithstanding that more than another year has gone by. There comes a point at which inordinate delays constitute an abuse of process and impinge upon Charter rights.

[12] While I appreciate the concerns of the judge for the position of Mr. Sheremetov, I am unable to agree that the judicial review should have been allowed.

[13] Under the Rules, the Minister only had to notify the Immigration Division and Mr. Sheremetov of the withdrawal of his request for an admissibility hearing. I am of the respectful view that the adjudicator had no jurisdiction to exercise the discretion or issue the types of orders envisaged by the judicial review judge. Once the Minister served his notice of withdrawal, the proceedings were ended.

[14] The learned judge seems to have collapsed the procedures under sections 5 and 6 as if they were one proceeding. I think he was in error to do so. It is only when the Minister applies to reinstate a request for an admissibility hearing under section 6 that jurisdiction is conferred on the Immigration Division to determine if it is in the interests of justice to allow the application for reinstatement.

[15] The Rules do not state what considerations may or may not be taken into account by the Division in making this decision. Therefore, although subsection 6(2) uses the term "must," the determination of whether it is in the interests of justice to allow the application is a discretionary decision of the Division. In exercising that discretion, the Division will, if the arguments are made, take into account whether reinstatement would constitute an abuse of process and/or constitute a violation of Charter rights because of delay or any other reason.

[16] It is only when the Minister makes an application for reinstatement under section 6 that the Division may, if it decides to allow the reinstatement, impose a schedule; not when the Minister gives notice to withdraw a request for a hearing under section 5 where no evidence has been accepted in the proceedings.

[17] I acknowledge that Mr. Sheremetov would like to put the matter of an admissibility hearing behind him. However, the Minister has withdrawn his application for the hearing. I am unable to see any distinction between the circumstances of Mr. Sheremetov and any other person who the Minister considers may be subject to deportation but has not started any proceedings before the Immigration Division.

DISPOSITION

[18] I would allow the appeal, set aside the Judgment of the Federal Court and answer the certified question as follows:

The Immigration Division should not consider the merits of the Minister's case when considering whether to accept a withdrawal of a request for an admissibility hearing where no substantive evidence has been accepted in the proceeding.

"Marshall Rothstein"

J.A.

"I agree

A.M. Linden J.A."

"I agree

Marc Noël J.A."

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET: A-287-04

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

and

OLEKSANDR DEMYA SHEREMETOV

Respondent

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: WEDNESDAY, NOVEMBER 3, 2004

REASONS FOR ORDER BY: ROTHSTEIN J.A.

CONCURRED IN BY: LINDEN J.A.

NOËL J.A.

DATED: November 4, 2004

APPEARANCES BY: Mr. Stephen Gold

For the Appellant

Mr. Oleksandr Sheremetov

For the Respondent

SOLICITORS OF RECORD: Morris Rosenberg

Deputy Attorney General of Canada

For the Appellant

Oleksandr Sheremetov

Richmond Hill, Ontario

For the Respondent

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