Date: 20040415
Docket: IMM-1076-03
BETWEEN:
OLEKSANDR DEMYA SHEREMETOV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is the judicial review of the decision of the Tribunal of the Immigration Division of the Immigration and Refugee Board, made on February 5, 2003, wherein the Adjudicator allowed the Minister to withdraw his request for an admissibility hearing, over Mr. Sheremetov's objections.
[2] Mr. Sheremetov, originally from the Ukraine, has been a landed immigrant here since December 1999. In March 2002 an Immigration officer reported to the Deputy Minister of Citizenship and Immigration, pursuant to the then-Immigration Act, RSC 1985 c. 12, as amended, that in his opinion, based on the balance of probabilities, Mr. Sheremetov had committed an act which 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 section 362(1)(c) of the Criminal Code of Canada and would have subjected him to a maximum term of imprisonment not exceeding ten years.
[3] The upshot is that an unfavourable decision in an Admissibility Hearing could ultimately lead to Mr. Sheremetov's removal from Canada, a very unpleasant prospect for him, as he has settled here with his wife and two children, works here and wants to become a Canadian citizen. He wants his situation regularized.
[4] The Immigration officer's report was based on a report from the procurator's office of Jovtnevy District of Odessa, the Ukraine, that Mr. Sheremetov, with others, had defrauded the joint stock commercial bank "INVESTBANK". The fraud consisted of issuing two allegedly false statements as to the inventory of a company in which Mr. Sheremetov was involved, and which induced the bank to advance funds.
[5] As a result, a detention order was issued against Mr. Sheremetov who was released against posting $8,000 bail. He was also required to report in person weekly, although this condition has now been relaxed to monthly, and may be further relaxed. Mr. Sheremetov vigorously denies the validity of the Ukrainian criminal charges. More particularly, he denies signing any statements during the time-frame in question and has constantly called for the production of the documents he is alleged to have signed.
[6] He was given notice to appear for an admissibility hearing originally scheduled for September 20, 2002. The transcript of the Assignment Court Session of the Immigration Division of the Immigration and Refugee Board shows that the purpose thereof was to set a date for the admissibility hearing. Mr. Sheremetov's counsel was on record as saying he sought an early date, and that he had had no disclosure of documents from the Minister although he had been demanding same for some months.
[7] The hearing resumed on November 6, 2002 at which time both sides sought an adjournment as they mutually believed there were issues which should be addressed prior to the hearing.
[8] When the admissibility hearing finally came up on the merits on February 5, 2003, the Minister withdrew his request. Mr. Sheremetov's counsel objected. The withdrawal was accepted pursuant to section 5 of the Immigration Division Rules made under the current Immigration and Refugee Protection Act, S.C. 2001, c. 27. That section reads:
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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.
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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. |
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(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. |
(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. |
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(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. |
(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. |
[9] The Adjudicator noted that no evidence had been taken so that a withdrawal request did not constitute an abuse of practice. She added: "The time factor that has elapsed in my estimation, although one of some length, is not an undue length of time, such as by itself to constitute an abuse of process".
[10] Mr. Sheremetov was given leave to have that decision judicially reviewed.
[11] The problem he faces is set out in section 6 of the same Rules which states:
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6(1) The Minister may make a written application to the Division to reinstate a request for an admissibility hearing that was withdrawn. |
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. |
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(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. |
(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. |
[12] Section 7(1) is also relevant. It provides:
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7(1) If the decision at the conclusion of an admissibility hearing is in favour of the permanent resident or foreign national, the member making the decision must date and sign a notice of decision and provide a copy to the parties. |
7(1) Si, après enquête, la décision de la Section est favorable au résident permanent ou à l'étranger, le commissaire qui rend la décision date et signe un avis de décision et en transmet une copie aux parties. |
[13] In effect, the charges against Mr. Sheremetov have been stayed, not dismissed. He wants to clear his good name and indeed his employment prospects are somewhat restricted until the matter has been resolved. He says that as a permanent resident of Canada his liberty is being compromised without access to due process, the whole contrary to the Charter. He also seeks an order of mandamus requiring the adjudicator to compel the Minister to proceed with the admissibility hearing forthwith, or for an order of certiorari quashing the request for detention review, and an order of prohibition enjoining the Immigration officer from taking any further action.
[14] As it stands, the Minister has the right to apply to have the request for an admissibility hearing reinstated.
[15] The standard of review depends on whether the decision is a mixture of fact and law, or purely a decision in law. If the former, the standard is reasonableness simpliciter, if the latter, the standard is correctness (Sogi v. Canada (Minister of Citizenship and Immigration), [2003] FCJ No. 1836 (MacKay J.); Hussenu v. Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 344 (Russell J.); Poonawalla v. Canada (Minister of Citizenship and Immigration), [2004] FCJ No. 447 (Blais J.).
[16] The correct interpretation of Rule 5 is a question of law. The Adjudicator was correct in holding that the two sentences in section 5(1) of the Rule must be read together. While a withdrawal of a request is not in and of itself an abuse of process if no substantial evidence has been accepted in the proceedings, it does not follow that such a withdrawal cannot have a negative effect on the integrity of the Division. The Adjudicator was of the view that the withdrawal of the request was not an abuse of process because the delays had not been inordinate. That is correct, as far as it goes. However, she did not take into account that the written documents allegedly signed by Mr. Sheremetov, which are at the heart of the criminal charges in the Ukraine, have not been produced. Either these documents exist, or they do not. Had she taken that factor into account, together with the fact that no limits were put on the delays for the Minister to reach a decision to apply to have the admissibility hearing request reinstated, she would have granted a postponement of the hearing, and heard representations as to rescheduling. In the alternative, she could have accepted the withdrawal of the request, but given a time limit on any application to reinstate it.
[17] 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. See Conille v. Canada (Minister of Citizenship and Immigration), [1999] 2 FC 33 (Tremblay-Lamer J.); Rabbat v. Canada (Minister of Employment and Immigration), [1986] 2 FC 46 (Denault J.); Blencoe v. British-Columbia (Human Rights Commission), [2000] 2 SCR 307. It would be better not to allow inordinate delays in the first place.
[18] For these reasons I will be granting judicial review and sending the case back to the same Adjudicator to either reschedule the Admissibility Hearing or to put a reasonable time limit on such application the Minister may make to have it reinstated.
[19] The parties and the Court discussed whether it would be appropriate to certify a question for the Federal Court of Appeal. It was agreed that these reasons would be circulated prior to the issuance of the order so as to give the parties, preferably collectively, the opportunity to pose a question, or questions, for certification. The parties shall have until April 28, 2004 to make written representations in that regard.
"Sean Harrington"
Judge
Ottawa, Ontario
April 15, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1076-03
STYLE OF CAUSE: OLEKSANDR DEMYA SHEREMETOV
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 7, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: APRIL 15, 2004
APPEARANCES:
Edmund Peterson FOR APPLICANT
Michael Butterfield FOR RESPONDENT
SOLICITORS OF RECORD:
Edmund Peterson FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada