Date: 20050711
Docket: IMM-6576-04
Citation: 2005 FC 971
Ottawa, Ontario, this 11th day of July, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
LEON GRIFFITHS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board (the "IRB"), dated March 24, 2004, wherein the IAD found no jurisdiction existed for it to reopen the Applicant's claim, which had previously been dismissed by the IAD. The Applicant seeks to have this decision quashed and set aside, and that his application to reopen his claim be sent back for redetermination before another panel of the IAD.
ISSUE
[2] This case raises essentially one issue: whether the IAD erred in its interpretation and application of s. 71 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), by concluding that there was no jurisdiction for it to reopen the Applicant's claim and that, furthermore, no other grounds, including its formerly-held continuing equitable jurisdiction, existed by which it might reopen the claim.
CONCLUSION
[3] For the reasons outlined below, the IAD has made no error that is reviewable in law, and consequently this application for judicial review is rejected.
BACKGROUND
[4] Leon Griffiths (Mr. Griffiths, or the "Applicant") came to Canada in 1976 at the age of six (6) with his family from Jamaica. While he was granted landed resident status in 1978, he never applied for Canadian citizenship, for various reasons.
[5] In 1991, Mr. Griffiths fell afoul of the law. After being convicted of two robberies, three charges of disguise with intent, and a serious possession of weapons charge, he was ordered deported in 1994. However, he received a stay of his deportation order on various terms and conditions in 1995.
[6] After being charged criminally for assault as well as breaches of the terms and conditions of the stay order, Mr. Griffiths was once again ordered deported in October of 1998 after the Minister of Citizenship and Immigration (the Minister, or the "Respondent") applied to have the stay of his deportation cancelled.
[7] For reasons unknown to the Court, Mr. Griffiths has not yet been deported. In late 2003, he filed a Notice of Motion to reopen his case, citing chiefly the failure of the IAD panel in 1998 to assess the country conditions in Jamaica, as well as the changed circumstances of the Applicant (namely, the fact he is now a father to Canadian-born children and has remained free of any further criminal activity since 1996), prior to cancelling the stay and re-ordering his deportation.
THE IAD'S DECISION
[8] In a brief decision, the IAD determined, at paragraphs 7-9, that it did not have the jurisdiction to reopen the Applicant's claim under s. 71 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) :
[A] reopening of a disposed appeal should not be granted unless the IAD is satisfied that they [sic] were a breach of natural justice at the hearing of the applicant's appeal. There has been no denial of natural justice being argued in this matter. In essence, the applicant's counsel appears to say that he has new information to put before the IAD and that the actual country conditions in Jamaica should be assessed.
The existence of new evidence, in and of itself, is not enough to support a motion to reopen. The applicant's affidavit dated December 22, 2003 states in essence:
- That he has stayed away from criminal activities and has not occurred [sic] further convictions;
- He is in a relationship with a new partner who gave birth to their daughter;
- He has a stable job and he does not have relatives in Jamaica and his life would be a risk [sic] if he were removed to Jamaica.
The fact that the appellant [sic] has stayed out of trouble is to his credit. He appears to have greatly benefited by the unknown delay of his removal to Jamaica. However, the above does not amount to breach of natural justice nor does it establish that Member Wales committed such a breach in her decision. There is no reason to believe that the country conditions in Jamaica, as they personally would affect the applicant, supports [sic] the conclusion that it [sic] constitute a breach of natural justice. At best, this is unsubstantiated and, in any event, not determinative of the matter at issue.
SUBMISSIONS BY THE PARTIES
The Applicant
[9] The Applicant essentially makes two arguments: first, that the IAD erred both in its determination that s. 71 of IRPA was the relevant reviewing provision and in its interpretation of the appropriate scope to be given to s. 71, and second, that the IAD violated ss. 7 and 12 of the Canadian Charter of Human Rights and Freedoms in ordering Mr. Griffiths' deportation without conducting a review of the country conditions for Jamaica.
[10] The Applicant is of the view that the old Immigration Act, R.S.C. 1985, c. I-2, should apply to his application to reopen since the decision which he is now seeking to reopen was rendered under the previous Act. Therefore, the Applicant did not have to show that a breach of natural justice had occurred. The test for reopening a claim under the old Act is broader, allowing discretion to reopen where new evidence is presented to the IAD. Furthermore, the Applicant continues, even if IRPA is the applicable act, the IAD has taken too narrow an interpretation of s. 71; that is, that the IAD's determination that it can only reopen a case where a breach of natural justice has occurred precludes the traditional power of the IAD to reopen in situations where, for example, the claim was considered abandoned. The Applicant states that nothing in the wording of the new law takes away this common law power, and thus the IAD has a wider ability to open claims in cases other than simply where a breach of natural justice has occurred.
[11] The Applicant further submits that his ss. 7 and 12 Charter rights have been compromised by the IAD decision. Given the facts and nature of his situation, the IAD should have considered various factors playing in favour of Mr. Griffiths staying in Canada. Specifically, in light of the fact a psychological assessment has indicated he may suffer severe psychological hardship should he be returned to Jamaica, and evidence that the Jamaican government has been monitoring criminal deportees to Jamaica, his right to life, liberty and security of the person was not properly assessed.
The Respondent
[12] The Respondent submits that the application should be dismissed since the IAD committed no breach of natural justice. The onus was on the Applicant to make out his case, and he failed to do so. The IAD was under no obligation to receive submissions from the Applicant as to which law was applicable (IRPA or the old Immigration Act). The Respondent further claims that IRPA is the applicable law since its transitional provisions do not apply to a Notice of Motion to Reopen, and the IAD properly interpreted and applied IRPA in its decision. There is no obligation for the IAD to undertake an analysis of humanitarian and compassionate factors.
[13] In response to the Applicant's Charter arguments, the Respondent submits that no clear factual and evidentiary foundation has been established. The Charter arguments are also premature, in the Respondent's opinion, since there is no evidence to suggest Mr. Griffiths' removal from Canada is imminent or that he has exhausted all remedies available to him.
ANALYSIS
Standard of review
[14] The proper standard of review in this case, where the IAD has decided it has no jurisdiction to reopen a claim, is correctness, since the question of jurisdiction is a legal one.
The IAD's decision concerning the applicability of IRPA
[15] Section 71 of IRPA reads as follows:
| 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. |
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[16] The scope of s. 71 is limited to breaches of natural justice, and is in stark contrast with the wording of s. 72(1) of the old Immigration Act:
| 72. (1) The Appeal Division may order that an inquiry that has given rise to an appeal be reopened before the adjudicator who presided at the inquiry or any other adjudicator for the receiving of any additional evidence or testimony. |
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72. (1) La section d'appel peut ordonner que l'enquête qui a donné lieu à un appel soit rouverte par l'arbitre qui en était chargé ou par un autre arbitre pour la réception d'autres éléments de preuve ou l'audition de témoignages supplémentaires. |
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[17] In order to determine whether the IAD was correct in declaring that the provisions of IRPA, and not the old Immigration Act, applied, one must look at the relevant transitional provisions of IRPA, ss. 190 and 192:
| 190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
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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. |
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190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.
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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. |
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[18] IRPA and these provisions came into force on June 28, 2002.
[19] The Applicant argues that since the appeal being sought to be revived was commenced in 1994, with a stay on the deportation order being granted in 1995 and then subsequently lifted in 1998, the old Immigration Act should apply. In the Applicant's view, the old common-law rule regarding ambiguity applies; that is, where a law is ambiguous as to its application, the interpretation affording a broader scope to an applicant's rights should be adopted. The Applicant further claims that if IRPA is applied, this will lead to the absurd situation that the right to appeal may only be sought upon very restricted grounds while, once leave is granted, the scope of the appeal is much broader.
[20] I cannot agree with this interpretation of the statute's transitional provisions. A plain reading of s. 192 makes it clear that only where a Notice of Appeal is filed before the coming into force of IRPA will the appeal be continued under the old Act. This clearly suggests that where a Notice of Appeal is filed after June 28, 2002, the appeal (if granted) will be conducted according to IRPA. This interpretation, in my view, is bolstered by s. 190, which advises that any old Immigration Act application, proceeding or matter that is pending or in progress shall be governed by IRPA after its coming into force.
[21] Mr. Griffiths' appeal was neither "pending" nor "in progress" in 2002. On the contrary, it had been dismissed by the IRB panel in 1998 when the stay of deportation was lifted, and never appealed. It therefore was a final and complete decision. Mr. Griffiths' filing of a Notice of Motion to Reopen does not change this status. One has only to take note of the comments by the Supreme Court of Canada in Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), [1977] 1 S.C.R. 271, where it is affirmed that "the mere right existing in the members of the community or any class of them at the date of the repeal of a statute to take advantage of the repealed statute is not a right accrued". This has previously been applied by this Court in a number of cases; for instance, in McAllister v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 177, Justice MacKay states at para. 53:
Mr. McAllister, having made a claim to be a Convention refugee had no vested or entrenched rights to have that claim considered under the rules prevailing at the time of his application; rather, he only had a right to have his claim considered under the rules prevailing when it is considered. He was a person with no right to enter or remain in Canada, except as provided by the Immigration Act, and in my opinion any claim he made to enter or to remain is subject to the law prevailing when that claim is determined, not when the claim is made. [Emphasis added.]
In light of these facts, previous legal authority, and the wording of the statute itself, Mr. Griffiths' Notice of Motion to Reopen was duly dealt with according to s. 71 of IRPA.
[22] The Applicant further claims that, even if s. 71 of IRPA is the applicable legislative provision, there was a breach of procedural fairness by the panel in reaching this conclusion since the panel did not contact the Applicant for submissions on this point. The Applicant claims that this is further exacerbated since in his application he cited a case which was decided under the old Act as authority for the reopening of his appeal. Therefore, it should have been obvious to the panel that the Applicant viewed the old Act as relevant. Additionally, since the Respondent never filed submissions in opposition to the Applicant's Motion to Reopen, the Applicant was left with the impression that his Application was in order. The Applicant claims that the panel breached procedural fairness by deciding otherwise.
[23] There is no authority for the Applicant's submissions. Procedural fairness requires that an applicant know the case he must meet, but not that (as the Applicant here seems to suggest) he be provided with an opportunity to respond to the panel's decision before it is formally issued: see, e.g., Mia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. no. 1584 at para. 11 (T.D.); Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (F.C.A.).
[24] Furthermore, the Applicant filed a Notice of Application and Memorandum of Fact and Law which did not refer to any section of the Immigration Act or IRPA. It did refer to a case which was dealt with under the old Immigration Act, Ghatoura v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 407 (T.D.) I note, however, that at the time the Applicant filed his Notice of Application with the IAD, 18 months had elapsed since IRPA had come into force. It seems to me that the Applicant should have made this argument at the time of filing his Application and that he should not have taken for granted that the Immigration Act would apply. Counsel for the Applicant, at any rate, would have known that IRPA was in force and that this new act brought with it a new burden of proof for requests to reopen before the IAD. To put the burden on the IAD by arguing a procedural fairness breach without actually bringing the argument regarding the application of the old law to the attention of the IAD is unfair. The Applicant and his counsel cannot blame the IAD for something that they had the obligation to check at the time of the filing of the Application or the Memorandum.
[25] Therefore, since the IAD did not rely on any extrinsic information that was not available to the Applicant, there was no onus on the IAD to request submissions from the party as to the applicability of IRPA, nor, for that matter, on the Minister to file any form of submissions. Furthermore, the provisions and applicability of IRPA were (and are) publicly available and known. The IAD did not err in failing to notify and seek submissions from the Applicant on this point.
The IAD's decision concerning its interpretation of IRPA
[26] As mentioned previously, the IAD went on to determine that it had no jurisdiction to reopen the Applicant's case since there had been no breach of natural justice by the IRB panel in 1998. This is the test as required by s. 71 of IRPA. The Applicant claims that in so doing, the IAD ignored its continuing equitable jurisdiction in the matter.
[27] Under the old Immigration Act, the IAD had a continuing equitable jurisdiction. It appears now that this jurisdiction does not exist under IRPA: see, e.g., Lawal v. Canada (Minister of Citizenship and Immigration) (2002), 26 Imm. L.R. (3d) 226 at para. 6 (Imm. & Ref. Bd. (App. Div.)). This question has been broached in a fairly detailed manner by my colleague Justice Kelen in Ye v. Canada (Minister of Citizenship and Immigration) (2004), 18 Admin. L.R. (4th) 166 (F.C.), who determined that such a jurisdiction no longer exists under the new provisions of IRPA. After reviewing Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R. 577, where the Supreme Court decided the Immigration Appeal Board had a continuing jurisdiction until the moment of deportation to decide if persons should be allowed to remain in Canada upon the presentation of new evidence, as well as subsequent case-law, Kelen J. turned his mind to s. 71 of IRPA, which specifically states the grounds upon which an appeal may be reopened (that is, where a breach of natural justice has occurred). Section 71 is also a provision for which no equivalent can be found in the old Immigration Act. Justice Kelen determined that the addition of s. 71 has caused the prior authorities to no longer apply:
I have concluded that four principles of statutory construction mean that section 71 limits or restricts the jurisdiction of the IAD to reopen appeals with respect to breaches of the rules of natural justice. These cannons of statutory interpretation are as follows:
1. Expressio unius est exclusio alterius - this maxim of statutory interpretation means that the expression of one thing is the exclusion of another. When Parliament specifies in law when the IAD can reopen an appeal, Parliament is implicitly expressing an intention to exclude all other grounds;
2. The French version of section 71 - is clear and stronger than the English version. In French, the IAD can reopen an appeal "sur preuve de" (upon proof of) a denial of natural justice. This means that such proof is a condition precedent to reopening. Without such proof, the IAD implicitly cannot reopen;
3. The implied exclusion rule - in relation to the codification of the common law is referred to by Sullivan and Driedger on the Construction of Statutes, 4th Edition (Markman.Butterworths Canada Ltd., 2002) at page 355, which in turn relies upon the Supreme Court of Canada decision in R. v. McClurg (1990), 76 DLR (4th) 217. This text book states at page 355:
When the legislature expressly codifies only part of the law relating to a matter, the Court may rely on implied exclusion reasoning to conclude that the part of the law not expressly mentioned was meant to be excluded.
This principle means that specifying in section 71 the right to reopen an appeal with respect to a breach of the rules of natural justice means that Parliament intended the part of the common law not expressly mentioned was intended to be excluded. Accordingly, the right of the IAD to reopen an appeal on equitable grounds was implicitly excluded. The converse illustrates the logic of this proposition. If Parliament intended that the IAD could reopen an appeal on humanitarian grounds, such as the best interests of the child, Parliament would have so specified. This is particularly true since Parliament has expressly referred to the best interest of the child in the immediately preceding sections of IRPA in relation to the jurisdiction of the IAD. The IAD protects the best interests of the children. Parliament would have expressly stated that the IAD can reopen an appeal to consider changed circumstances in this area if Parliament had so intended.
4. The legislative history - includes an explanation of clause 71 presented to Parliament. The explanation states that section 71 "clearly limits reopenings to instances where there has been a breach of the common law principle of natural justice". The explanation states section 71 is to prevent the opportunity to reopen an appeal from being used as a tactic to delay removal. The Clause by Clause Analysis with respect to IRPA dated September 2001 was entered into Parliament at the time the Bill creating IRPA was being considered by Parliament. Accordingly, the legislative history shows that Parliament was informed that the intention of section 71 is to prevent the mechanism of the reopening of immigration appeals from being used as a tactic to delay removal and that section 71 limits reopenings to instances where there is a breach of the rules of natural justice.
Accordingly, I am of the view that these four principles of statutory construction lead to the conclusion that section 71 limits the jurisdiction of the IAD to reopen appeals and implicitly excludes the common law jurisdiction to reopen appeals to permit the appellant to present additional or new evidence. [At para. 17 of Justice Kelen's decision. Emphasis added.]
[28] The question of whether s. 71 of IRPA precludes the IRB's previously-held continuing equitable jurisdiction was certified by Kelen J., but the question will not be dealt with since the Appeal was abandoned as moot after the applicant was granted permanent residency. I finally adopt the reasoning of Kelen J. and his reasons are mine.
[29] The Applicant has not shown a breach of natural justice by the IAD in its decision to refuse the reopening of his claim. The bulk of the Applicant's arguments are concerned with new evidence not before the IRB panel in 1998. However, it is clear from the foregoing discussion that this is not a basis upon which s. 71 permits the reopening of a claim. There is no continuing equitable jurisdiction.
Violation of the Applicant's ss. 7 and 12 Charter rights
[30] The Applicant claims that his ss. 7 and 12 Charter rights have been violated by the panel's refusal to reopen his claim. This is contended because the IRB panel in 1998 did not assess the hardships that would be faced by Mr. Griffiths, nor the country conditions in Jamaica prior to cancelling the stay of deportation. The subsequent failure of the panel to do so upon the Motion to Reopen further jeopardizes these rights.
[31] In my view, the Applicant has again failed to demonstrate that any such violation has occurred. A review of the 1998 decision lifting the stay demonstrates that the panel in 1998 did assess the hardships that Mr. Griffiths would face should he be forced to return to Jamaica. Specifically, I note at page 10 of the 1998 decision where it is stated:
The appellant denied having any relatives in Jamaica, his country of citizenship. He has lived in this country [Canada] since the age of six. The panel accepts that there may be some hardship for the appellant returning to his country of citizenship, but that is only one factor for consideration.
[32] In addition to the other assessments made with regard to the Applicant's situation in 1998, the panel determined the stay was to be lifted and the removal order executed as soon as possible. While the panel could have assessed country conditions, there does not seem to be any evidence that country conditions in Jamaica were such that the panel should have assessed these in more detail. Rather, Mr. Griffiths' arguments, both in 1998 and now, are centred around the fact that he will suffer hardship.
[33] When Mr. Griffiths suggests that his Charter rights will be violated, he forgets that there is at least one other avenue of recourse open to him. To my knowledge, an application on the basis of humanitarian and compassionate grounds has not yet been made. Mr. Griffiths cannot argue that his Charter rights have been violated when there remain avenues of recourse still open to him (see, e.g., Sinnappu v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 791 at para. 66 (T.D.); Razavi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 224 at para. 19 (T.D.)). Furthermore, in a humanitarian and compassionate grounds application, his concerns on these points will be dealt with directly.
CONCLUSION
[34] There are no grounds upon which the decision of the panel dated March 24, 2004, can be overturned. The panel properly applied the applicable legislation and properly assessed the state of the law. This application for judicial review is therefore dismissed.
QUESTION FOR CERTIFICATION
[35] The parties were asked if they had a question to propose for certification. The Applicant submitted two :
(1) What is the meaning of the reference under section 71 of IRPA that the IAD may reopen a hearing "if it is satisfied that it failed to observe a principle of natural justice"?
(2) Does section 71 of IRPA extinguish the common law continuing "equitable jurisdiction" of the IAD to reopen an appeal except where the IAD has failed to observe a principle of natural justice?
[36] I quoted at length from Justice Kelen's analysis of the second question in Ye, supra, at paragraph 27 of these reasons, and I see no need to add anything further. I am furthermore in agreement with the Respondent that neither question is appropriate for certification since the Applicant did not argue in his application to the Immigration Appeal Division that there was a breach of natural justice. The question of natural justice was simply not raised, and therefore, he cannot now suggest that there has been such a breach. Therefore neither question shall be certified.
ORDER
THIS COURT ORDERS THAT :
This application for judicial review is denied and no question will be certified.
"Simon Noël" Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6576-04
STYLE OF CAUSE: LEON GRIFFITHS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY JUNE 22 , 2005
REASONS FOR ORDER
AND ORDER BY: NOËL S., J.
DATED: July 11th, 2005
APPEARANCES BY: Mr. Osborne G. Barnwell
For the Applicant
Ms. Marianne Zoric
For the Respondent
SOLICITORS OF RECORD:
Mr. Osborne G. Barnwell
Barrister & Solicitor
North York, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050622
Docket: IMM-6576-04
BETWEEN:
LEON GRIFFITHS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER