Date: 20030718
Docket: IMM-233-02
Citation: 2003 FC 900
Ottawa, Ontario, this 18th day of July, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SATVIR SINGH CHAHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Appeal Division) ("IAD") dated January 7, 2002, denying the applicant's motion to reopen his appeal of a deportation order.
Background
[2] The applicant is a permanent resident of Canada, having been landed on November 9, 1993 in British Columbia. He was sponsored by his wife, who he later divorced.
[3] The applicant stated in his affidavit that while employed as a taxi driver in Vancouver in 1999, he took undercover police officers to a meeting with a drug dealer. As a result, he was convicted of participating in the trafficking of drugs. He was sentenced to 30 days incarceration.
[4] Later, the applicant moved to Brampton, Ontario. In November 2000, during a visit to India, he was married.
[5] On his return to Canada in March 2001, immigration authorities told the applicant to report when required for immigration proceedings.
[6] On June 7, 2001, the applicant and his immigration counsel attended an inquiry before an adjudicator and he was ordered deported.
[7] The applicant filed an appeal of his removal order on June 8, 2001.
[8] According to the applicant, Mr. Mangat, the applicant's immigration counsel, took all of his documents from him on June 7, 2001 and informed him that he (Mr. Mangat) would make all the arrangements for his hearing.
[9] The applicant received a notice from the respondent with respect to the setting of a hearing date. The notice was also sent to his counsel. The notice stated that if a hearing date could be agreed upon up to ten days before the hearing scheduled to set the date, then it was not necessary to attend the hearing to set the date.
[10] The applicant thought that his counsel would attend on his behalf on November 16, 2001, after apparently verifying that his counsel had received the notice. Accordingly, the applicant did not attend. His counsel also did not attend the hearing.
[11] The following week when the applicant had not heard from Mr. Mangat, he contacted his current lawyer who telephoned the IAD to learn that the applicant's appeal had been declared as abandoned.
[12] The applicant then made a motion to reopen his appeal. This motion was not opposed by the respondent.
[13] By a decision dated January 7, 2002, the IAD denied the applicant's motion to reopen his appeal.
[14] This is the judicial review of that decision.
Issue
[15] The applicant, at pages 38 and 39 of his record states six issues. However, I prefer first to deal with the following issue:
Did the IAD make a reviewable error in failing to grant the applicant's motion to reopen his appeal?
Applicable Law
[16] Rule 32 of the Immigration Appeal Division Rules, S.O.R./93-46 as amended by S.O.R./97-363, section 20 states:
|
32.(1) Where the Appeal Division has declared an appeal to be abandoned by a party, the party may, by motion made pursuant to subrules 27(2) to (7), apply to the Appeal Division for the appeal to be reopened.
(2) A motion made by a party other than the Minister to reopen an appeal shall, where the party is not represented by counsel, include the party's address and telephone number.
(3) The Appeal Division shall grant a motion to reopen an appeal where there are sufficient reasons why the appeal should be reopened and it is in the interests of justice to do so. |
32.(1) Dans le cas où la section d'appel a conclu au désistement de l'appel d'une partie, la partie peut lui demander la réouverture de son appel par voie de requête conformément aux paragraphes 27(2) à (7).
(2) La requête en réouverture présentée par une partie, autre que le ministre, qui n'est pas représentée par un conseil doit porter l'adresse et le numéro de téléphone de celle-ci.
(3) La section d'appel fait droit à la requête en réouverture lorsqu'il y a des motifs suffisants d'agir ainsi et que l'intérêt de la justice le justifie. |
[17] This regulation states that if there are sufficient reasons and it is in the interests of justice, the Appeal Division shall grant a motion to reopen the appeal.
[18] Are there sufficient reasons to reopen the appeal?
In the present case, the applicant believed that his counsel was going to attend the assignment session on his behalf and consequently, he did not attend. The applicant did not delay in checking to see why he did not have a date for his hearing. The assignment court hearing was held on November 16, 2001 and the applicant checked in with his counsel with respect to the hearing date on November 20, 2001. The applicant has been in Canada since 1993. He was convicted of one offence. The evidence also shows that he always intended to pursue his appeal. I am of the view that sufficient reasons exist why the appeal should be reopened.
[19] Is it in the interests of justice to reopen the appeal?
The applicant's appeal of the issuance of the deportation order has never been heard by the IAD as it had been declared as abandoned when neither he or his counsel attended the assignment court to set a date for the hearing on the merits. The affidavit evidence of the applicant states that the applicant believed that his counsel would be representing him at the assignment court. That affidavit evidence also establishes that the applicant never intended to abandon his appeal. I am of the opinion that it would be in the interests of justice to reopen the appeal. It is of interest to note that the reasons of the adjudicator who heard the motion to reopen state, in part, at page 3:
. . . I acknowledge that the applicant was in contact with the IAD through his current counsel mere days after he was informed that the appeal of his deportation order had been declared abandoned. . . .
[20] For these reasons, I am of the opinion that the IAD made a reviewable error in not reopening the appeal.
[21] The application for judicial review is allowed and the matter is remitted back to the IAD to be dealt with in accordance with these reasons.
[22] Neither party wished to certify a serious question of general importance.
ORDER
[23] IT IS ORDERED that the application for judicial review is allowed and the matter is remitted back to the IAD to be dealt with in accordance with these reasons.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
July 18, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-233-02
STYLE OF CAUSE: SATVIR SINGH CHAHAL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, February 13, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Marshall Drukarsh
FOR APPLICANT
Pamela Larmondin
FOR RESPONDENT
SOLICITORS OF RECORD:
Green and Spiegel
121 King Street West
Suite 2200, P. O. Box 114
Toronto, Ontario
M5H 3T9
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT