Date: 20020321
Docket: IMM-3318-01
TORONTO, ONTARIO, THIS 21ST DAY OF MARCH, 2002
Present: THE HONOURABLE MR. JUSTICE McKEOWN
BETWEEN:
LAKHVIR KAUR GHATOURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the IAD dated June 14, 2001 is quashed. The matter is returned to the IAD for reconsideration in accordance with my reasons.
"W.P. McKeown"
JUDGE
Date: 20020321
Docket: IMM-3318-01
Neutral citation: 2002 FCT 307
BETWEEN:
LAKHVIR KAUR GHATOURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
The applicant seeks judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board ("the IAD"), dated June 14, 2001, wherein the IAD decided not to grant the applicant's motion to re-open the appeal of her removal order.
The issues are whether the IAD erred in failing to consider the impact of the applicant's removal to a specific country and whether the Supreme Court of Canada decisions in Chieu v. Canada (Minister of Citizenship and Immigration) [2002] S.C.J. No. 1, and Al Sagban v. Canada (Minister of Citizenship and Immigration) [2002] S.C.J. No. 2 can be applied retroactively to this case.
I must first decide whether the IAD was correct in making the following finding:
... While it may be likely that the applicant would be removed to India, it is open to CIC officials to change their mind. In the panel's opinion, it is simply not appropriate for a panel to consider possible, even probable, destinations of a person who may be removed from Canada in its decision.
In the last sentence the panel correctly stated the law at the time of the decision which was the law set out by the Court of Appeal in Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605 (C.A.) and M.C.I. v. Al Sagban [1998] F.C.J. No. 1775 (C.A.). The Federal Court of Appeal was reversed by the Supreme Court of Canada in the two decisions cited above. However, before I decide whether those two decisions should be applied retroactively in this case, I must determine whether the Board was correct in refusing to look at the country conditions in India on the facts before it. Although I am making no decision with respect to the question of the retroactivity of the Chieu and Al Sagban decisions with respect to the substantive law contained therein, I am adopting the standard of review as set out therein on the basis that this relates to process and is binding on the Court and does not go to the jurisdiction of the Tribunal. Accordingly, the standard for reviewing the IAD's decision to not review country conditions in India is correctness.
The evidence that was before the IAD is as follows. The applicant swore an affidavit April 20, 2001, which included the following statement:
... I now know that the immigration authorities are intending to deport me back to India.
The IAD also had before it a letter dated April 3, 2001, which stated that the applicant was to come in for an interview
... to make the arrangements for your departure from Canada.
There was no affidavit from the respondent Minister before the IAD. However, the Minister in her submissions stated at paragraph 15, page 81, Tribunal Record:
The applicant's circumstances in India, should she be removed, are completely irrelevant at this stage.
The Minister does not take exception to the applicant's statement that she will be deported to India.
In my view the law relating to the IAD considering country conditions of a specific country before the Supreme Court of Canada decision and subsequent to it, has not changed. In Chieu Justice Iacobucci stated at paragraph 48:
The I.A.D. can also reopen an appeal prior to execution of the removal order and, if appropriate, exercise its discretion in another way. As a result, this Court has stated that the I.A.D.'s discretionary jurisdiction is ongoing: Grillas, supra, at p. 582, per Abbott J., and p. 590, per Martland J. As Lorne Waldman states, in Immigration Law and Practice (loose-leaf ed.), at para. 10.133.7:
It is trite law that the Appeal Division has ongoing jurisdiction over the appellant up to and until the time that the removal order is executed. In such circumstances, there would appear to be no reason for concluding that the Appeal Division could [not] consider subsequently whether or not to reopen an appeal to consider issues related to the impact of removal to a specific country on the appellant.
In my view this statement is supported by Justice Linden in the Court of Appeal decision in Chieu at paragraph 11 when he states:
In fact, until the issue of deportation is settled, the Minister cannot make a decision as to the country of removal. Hence the statement at one point in the proceedings by the Minister's representative as to the Minister's disposition to deport the appellant to Vietnam cannot be taken as a formal expression of the Minister's decision since he is not yet empowered to make that decision.
The difference in the case before me from the case before Justice Linden is that the IAD had rendered a decision in this case and the statutory stay had expired. Therefore, the Minister was empowered to make the decision to return the applicant to India. Furthermore, the Federal Court of Appeal was concerned about the Board engaging in premature speculation about possible countries to which someone might be deported. This can be seen at paragraph 15 of Chieu, supra where Justice Linden states:
The Board has no business considering the merits or demerits of any potential destination. For the IRB(AD) to consider such a matter would extend the jurisdiction of the Board to engage in premature speculation about hypothetical matters concerning the situation in the possible countries to which someone might be deported.
Again, in the case before me, the Minister had decided to return the applicant to India on the facts of this case.
In light of my finding on this issue, I do not have to decide if the Supreme Court of Canada decisions in Chieu or Sagban ought to be applied retroactively in this case.
The application for judicial review is allowed. The decision of the IAD dated June 14, 2001 is quashed. The matter is returned to the IAD for reconsideration in accordance with the above reasons. The IAD must consider whether the applicant could potentially face any
hardships in being returned to India which would be sufficient to alter the previous balance of relevant factors.
"W.P. McKeown"
JUDGE
TORONTO, ONTARIO
March 21, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3318-01
STYLE OF CAUSE: LAKVIR KAUR GHATOURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, MARCH 14, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: THURSDAY, MARCH 21, 2002
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Catherine Vasilaros
For the Respondent
SOLICITORS OF RECORD: Lorne Waldman
Barrister & Solicitor
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020321
Docket: IMM-3318-01
BETWEEN:
LAKVIR KAUR GHATOURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER