Ottawa, Ontario, February 7, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") of a decision by Jean-Carle Hudon of the Immigration Appeal Division ("IAD"), dated June 27, 2005. In that decision, the IAD dismissed the application based on section 71 IRPA to reopen the appeal of Patrick Dubrézil ("applicant"), on the ground that the applicant did not succeed in establishing that he was the victim of a breach of a principle of natural justice.
FACTS
[2] The applicant is a Haitian citizen, born on September 25, 1983, who arrived in Canada in 1997. On July 7, 2003, he was sentenced to 12 months in prison for using an imitation firearm in the commission of an offence. On October 31, 2003, member Pierre Turmel of the Immigration Division of the Immigration and Refugee Board made a deportation order against the applicant based on paragraph 36(1)(a) (inadmissibility for serious criminality). The same day, the applicant appealed that decision. On March 6, 2004, the applicant was released from prison. In April 2004, a notice to appear summoning the applicant to report to his scheduling conference was then sent to Bordeaux prison. The letter was returned to the sender and was then sent to 660 d'Anvers Street, Montréal, on May 12, 2004 - the applicant's residence in 2002 (see the applicant's affidavit, paragraph 14). The notice stated that the conference would be held at the IRB offices in Montréal on June 23, 2004, at 9:30 a.m. Noting the applicant's absence, member Tony Manglaviti of the IAD determined that the appeal was abandoned the same day, pursuant to subsection 168(1) IRPA. Near the end of February 2005, the applicant was summoned for the purposes of making arrangements for his deportation. He then filed an application to reopen the appeal, which was dismissed on June 27, 2005, by Jean-Carle Hudon. Hence this application for judicial review. Further, a new removal order was made against the applicant, enforceable on November 12, 2005. An application to stay the removal order was filed and it was allowed pending a decision in this matter.
ISSUE
[3] The only issue is the following:
- Did member Jean-Carle Hudon of the IAD err in fact or in law in determining that member Manglaviti of the IAD did not breach the principles of natural justice in determining that the applicant had abandoned his appeal?
ANALYSIS
[4] The applicant argued that the IAD's decision is tainted with errors of fact. After reviewing all of the applicant's arguments, I do not see one. A finding of the IAD bearing on questions of fact or on assessment of the evidence - including when it involves the applicant's credibility - is subject to the patent unreasonableness standard (see inter alia Krishnan v. Canada (Minister of Citizenship and Immigration), 2005 FC 517, [2005] F.C.J. No. 639, at paragraph 16). The IAD made a finding on the applicant's credibility by relying on elements of fact, including the contradictions in the evidence, to determine that the applicant lacked credibility. There is no basis for amending that determination.
[5] Without specifying which principle of natural justice he is relying on, the applicant also contends that in declaring the appeal abandoned without giving the applicant the opportunity to explain why he had been absent from the scheduling conference, the IAD failed to observe the principles of natural justice.
[6] The applicant relies on Phuoc Luu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 276, [2001] F.C.J. No. 496, which is of no help to him since in that matter, the judge decided to allow the application because of an error in fact. In this case, the IAD did not make any error in fact.
[7] The applicant also relies on the following passage from Hung v. Canada (Minister of Citizenship and Immigration), 2004 FC 966, [2004] F.C.J. No. 1237:
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.
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. It also took into account the following statement on the notice of appeal:
IMPORTANT - Under section 168(1) of the Immigration and Refugee Protection Act, if you fail to appear for a hearing, or fail to communicate with the IAD when requested, or fail to provide information required by the IAD (such as your most recent address), the IAD may determine that you have abandoned your appeal.
Further, I note that the Immigration Appeal Division Rules (SOR/2002-230, as amended by S.C. 2002, c. 8), subsection 13(4) (the Rules) provides that the person has the obligation to inform the IAD of any change in contact information for that person or their counsel:
| 13(4) If the contact information of the person or their counsel changes, the person must without delay provide the changes in writing to the Division and the Minister.
|
13(4) Dès que les coordonnées de la personne en cause ou celles de son conseil, le cas échéant, changent, la personne en cause transmet les nouvelles coordonnées par écrit à la Section et au ministre.
|
I would add that the record indicates that on or about November 20, 2003, the applicant was at Bordeaux prison and received a letter from the IAD confirming receipt of the notice of appeal (pages 56 and 57 of the record) and specifically pointing out the importance of informing them of any change in contact information.
[9] In Luo v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 160, the applicant had failed to advise the Immigration and Refugee Board of his move. At paragraphs 5 to 8, Dubé J. determined that a notice sent to the address last known to the authorities did not amount to a breach of procedural fairness (the citations are omitted):
The issue is whether, on the facts of the case, the notice provided to the applicant of his refugee hearing and of the abandonment proceedings, did not meet the requirement of fairness, bearing in mind that the notices were sent to the address given by the applicant, while he took no steps to ensure that the immigration authorities were aware of his new address.
. . .
In the case at bar, as in Mussa, there is no reviewable error on the part of Refugee Division, which sent notices to the address that the applicant allowed to stand as his current address for service from September 1992. Furthermore, the Charter grounds asserted by the applicant do not, in my view, create arguable issues as they are contingent on there being a denial of fairness in the circumstances of this case. I cannot find that there was such a denial of fairness. Consequently the application must be denied.
[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. That subsection reads as follows:
| 168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so. |
168. (1) Chacune des sections peut prononcer le désistement dans l'affaire dont elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication. |
[11] In this case, the notice to appear was sent to Bordeaux prison. The evidence establishes that on or about April 12, 2004, the applicant was residing not at Bordeaux prison but at 84 Smith Street in Lasalle. The applicant never sent this change in contact information to the IAD. It was his obligation to do so and he cannot attempt to impose that obligation on the IAD. The IAD sent the notice to appear to the last address, the Bordeaux prison. Then, it sent it to an address where the applicant resided in 2002 (d'Anvers Street in Montréal). Another address appears in the record, namely that of his parents [TRANSLATION] "at the time" (paragraph 30 of his affidavit) (2716 Orléans in Montréal), where he lived before. The IAD did what it could to contact the applicant.
[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.
[13] For those reasons, the application for judicial review is dismissed.
[14] The parties were invited to propose questions for the purposes of certification. The applicant proposed the following question:
- Can the Appeal Division of the Immigration and Refugee Board determine that an appeal has been abandoned after a scheduling conference where the applicant was not present, without holding a full hearing and then ascertaining the reason therefor?
[15] The respondent objects to the certification of that question.
[16] To determine if a question must be certified, we must refer to the requirements established in Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The question must transcend the interests of the immediate parties to the litigation, be of general application and determinative to the outcome of the appeal. In my opinion, the question should not be certified since it is an issue that has already been settled by the courts, which therefore does not transcend the interests of the parties. Further, for the reasons explained above, the remedy requested - i.e. holding a hearing to explain the absence from the conference - is academic because the applicant did not advise the IAD of the change in contact information. It was therefore impossible to contact him.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed;
- No question be certified;
- The stay of the removal order is vacated, and the removal order is in force.
Certified true translation
Kelley A. Harvey, BCL, LLB
SOLICITORS OF RECORD
DOCKET: IMM-4321-05
STYLE OF CAUSE: PATRICKDUBREZIL
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING : February 1, 2006
THE HONOURABLE MR. JUSTICE SIMON NOËL
DATE OF REASONS: February 7, 2006
APPEARANCES:
LEXANDRINA CARAGIOU FOR THE APPLICANT
IAN DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALEXANDRINA CARAGIOU FOR THE APPLICANT
Montréal, Quebec
JOHN M. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec