Date: 20041021
Docket: IMM-6562-03
Citation: 2004 FC 1443
BETWEEN:
PHOTIOS FRANK PSYRRIS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") dated July 30, 2003 in which the IAD dismissed the applicant's appeal for lack of jurisdiction pursuant to section 197 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA").
[2] Photios Frank Psyrris (the "applicant") was born in Greece on July 24, 1960 and entered Canada with his family as a permanent resident at the age of six months. Although his parents became Canadian citizens while the applicant was still a minor, they neglected to include him on their application and he retained the status of permanent resident.
[3] On November 8, 1994, at the age of 34, a deportation order was issued against the applicant pursuant to subsection 32(2) of the IRPA because he had been found guilty of a series of petty criminal offences which made him inadmissible pursuant to paragraph 27(1)(d) of the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act"). Amongst these offences were several convictions of breaking and entering for which he had been sentenced to two and to three years imprisonment.
[4] On December 22, 1994, the IAD granted the applicant a stay of execution of the removal order for a term of five years subject to specified conditions. Oral reviews were held regularly throughout the following years. On December 8, 1999, the IAD extended the stay for a further period of two years with the final list of conditions to be followed by the applicant.
[5] On September 26, 2002, the end of stay oral review was held before the IAD. The evidence adduced by the applicant showed little change in his personal situation. The IAD found that the applicant was working nine hours a week and that he had been convicted, on September 10, 2002, of possession of stolen goods, namely a bicycle, and of failure to comply with a court order to keep the peace and be of good behaviour. The applicant was sentenced to fines of $100 and $500 respectively for these offences. After hearing the evidence the IAD asked that submissions be made on the merits of the case and on the applicability of section 197 of the IRPA to the present case.
[6] The applicable sections of the IRPA read as follows:
192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
192. S'il y a eu dépôt d'une demande d'appel à la Section d'appel de l'immigration, à l'entrée en vigueur du présent article, l'appel est continué sous le régime de l'ancienne loi, par la Section d'appel de l'immigration de la Commission.
197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act.
197. Malgré l'article 192, l'intéressé qui fait l'objet d'un sursis au titre de l'ancienne loi et qui n'a pas respecté les conditions du sursis, est assujetti à la restriction du droit d'appel prévue par l'article 64 de la présente loi, le paragraphe 68(4) lui étant par ailleurs applicable.
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
64. (1) L'appel ne peut être interjeté par le résident permanent ou l'étranger qui est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée, ni par dans le cas de l'étranger, son répondant.
(2) L'interdiction de territoire pour grande criminalité vise l'infraction punie au Canada par un emprisonnement d'au moins deux ans.
[7] The IAD dismissed the applicant's appeal for lack of jurisdiction. The IAD found that the applicant had breached a condition of his stay after the coming into force of the IRPA and therefore, as directed by section 197, he is subject to section 64 of the IRPA which provides that the applicant, as an inadmissible permanent resident, does not have a right of appeal to the IAD.
[8] The applicant submits that the IAD erred in law in its interpretation of sections 197 and 64 of the IRPA. According to the applicant section 64 of the IRPA only affects appeals that may be made in the future and does not expressly extinguish the right of appeal of an individual who has launched the appeal prior to the introduction of the IRPA. In addition, the applicant argues that for a right of appeal to be cancelled pursuant to section 64 of the IRPA, the applicant must have committed a serious crime after the passage of the new Act. Where the applicant has merely breached a condition of his stay but has not committed a new offence, the IAD does not lose its jurisdiction.
[9] The general rule with respect to the continuance of appeals filed before the coming into force of the IRPA is set out in section 192 of the IRPA. Section 192 provides that, "if a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board." Although the applicant's stay of his removal order was issued prior to the coming into force of the IRPA on June 28, 2002, the applicant's case nevertheless falls under the application of the new Act pursuant to section 197. Section 197 is an exception to the general rule found in section 192 of the IRPA. Section 197 provides that, "despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act." The application of section 197 of the IRPA relies on the presence of two conditions: first, the applicant must have been granted a stay under the former Act and second, the applicant must have breached a condition of that stay. At first view, section 197 clearly applies to the applicant because he was initially granted a stay of his removal order under the former Act on December 22, 1994. In addition, the IAD found that the applicant had breached a condition of his stay and therefore, found that section 197 applied to his case.
[10] However, the applicant takes issue with the IAD's evaluation of the evidence in concluding that the applicant breached a condition of his stay. On December 8, 1999, the IAD extended the applicant's original stay for a further period of two years and issued its order with a list of conditions. Condition No. 5 provides that "the appeal division orders that the stay of the execution of the removal order be maintained under the following amended terms and conditions: [...] 5. Make reasonable efforts to seek and maintain full-time employment."
[11] Acording to the evidence, the applicant has been working nine hours a week since November 19, 2001 in a restaurant and he provides occasional help at Satellite Maintenance. In the reasons accompanying the decision dated December 21, 1999 the tribunal indicated that the applicant was expected to make additional efforts to seek full-time employment because his efforts up to that point had not been satisfactory. The IAD notes that on September 26, 2002 the applicant testified that he had not been looking for full-time employment because his father was getting old and needed his help. The IAD concluded that the evidence clearly demonstrated that the applicant did not make reasonable efforts to seek and maintain full-time employment. The IAD found that the applicant had failed to provide any acceptable justification as to why, in his personal circumstances, he could not have made efforts in that regard. A thorough evaluation of the Tribunal Record and of the IAD's decision leads me to conclude that the IAD's evaluation of the evidence was reasonable and the applicant had failed to demonstrate that the Board erred in concluding that he had breached Condition No. 5 of his stay.
[12] Since I find that the IAD did not err in its evaluation of the evidence with respect to the applicant's breach of a condition of his stay, the two necessary conditions underlying the application of section 197 have been met in this case. Consequently, through the application of section 197 the applicant becomes subject to section 64 and subsection 68(4) of the IRPA (see Minister of Citizenship and Immigration v. Medovarski, 2004 FCA 85, [2004] F.C.J. No. 366 (F.C.A.) (QL)). Since the Board did not pronounce itself on the application of subsection 68(4) which, it is agreed, does not apply to this case, I will only consider its application of section 64 of the IRPA.
[13] In this case, the IAD found that it did not have jurisdiction to hear the applicant's appeal because he was a permanent resident who had been found inadmissible on grounds of serious criminality. Indeed, the report of Employment and Immigration Canada reveals that the applicant was sentenced to two years imprisonment for various offences including breaking and entering. As a result of these numerous offences, a deportation order was issued against the applicant on November 8, 1994 because he had been found inadmissible pursuant to subsection 32(2) of the former Act. Two conditions underlie the application of subsection 64(1). First, as a permanent resident, the applicant falls under its application. Second, the applicant was found inadmissible on grounds of serious criminality. Although the applicant contests the characterization of his crimes as serious, subsection 64(2) is clear that serious criminality is "a crime that was punished in Canada by a term of imprisonment of at least two years." Since the applicant was sentenced to a term of imprisonment of two years plus a day, his crimes must be characterized as "serious criminality" within the ambit of subsection 64(1) of the IRPA and I find that the IAD's conclusion that it does not have the jurisdiction to hear the applicant's appeal was correct.
[14] It is important to note that although the applicant does not have a right of appeal to the IAD through the application of sections 197 and 64 of the IRPA, the applicant has alternative recourse available. In Medovarski, supra, the Federal Court of Appeal summarized some of these alternatives:
[56] Finally, persons in the position of Ms. Medovarski have some opportunities to bring to the attention of immigration officials reasons why they should not be removed, despite their criminal conviction. In particular, Ms. Medovarski will not be removed without an assessment of the risks to life, limb or liberty to which she may be exposed if returned to her country of citizenship: IRPA, subsection 112(1). In addition, she may make an application to remain in Canada on humanitarian or compassionate grounds under IRPA, subsection 25(1), although I recognize that she may be removed before this process is complete. The duty of fairness does not require that considerations of this kind be the subject of an appeal to an independent tribunal.
[15] For all the above reasons, I am of the opinion that the IAD committed no unreasonable error in its disposition of this case. Specifically, the conclusion that the applicant had breached a condition of the stay of his removal order was reasonable. Furthermore, the IAD's conclusion that it did not have jurisdiction to hear the applicant's appeal was correct in light of the IRPA and the facts of this case. The application for judicial review is therefore dismissed.
[16] Counsel for the applicant proposed the following question for the purpose of certification:
If a permanent resident has been ordered deported following a sentence of over 2 years under the former Act, and has been granted a stay under the former Act and has breached a condition of that stay since the coming into force of IRPA without falling under the purview of s. 68(4), is s. 197 sufficiently clear to discontinue that permanent resident's appeal?
[17] I agree with counsel for the respondent that the question does not warrant certification as the issue has already been settled by the Federal Court of Appeal in Medovarski, supra.
JUDGE
OTTAWA, ONTARIO
October 21, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6562-03
STYLE OF CAUSE: PHOTIOS FRANK PSYRRIS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 9, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: October 21, 2004
APPEARANCES:
Mr. Ethan Friedman FOR THE APPLICANT
Ms. Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ethan Friedman FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec