2016 FC, 2016 FC 1065

Date: 20160920 Docket: IMM-1429-16 Citation: 2016 FC 1065 [ENGLISH TRANSLATION] Ottawa, Ontario, September 20, 2016 PRESENT: The Honourable Mr. Justice Shore BETWEEN: HONG NHAN TRAN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Nature of the matter [ 1 ] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA) of a decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board to dismiss the applicant’s appeal for lack of jurisdiction, on March 15, 2016. II.

Facts [ 2 ] The applicant, age 32, is a citizen of Vietnam. She became a permanent resident of Canada on March 8, 2003. [ 3 ] On May 24, 2011, the applicant was found guilty of conspiracy ( paragraph 465(1) (

c) of the Criminal Code ) and drug trafficking (subsection 5(1) of the Controlled Drugs and Substances Act ). On September 14, 2011, she received a conditional sentence of two years less a day. [ 4 ] Following a hearing before the Immigration Division (ID) on June 18, 2015, the applicant was inadmissible in Canada for serious criminality under paragraph 36(1)(

a) of the IRPA and a removal order was issued against her. [ 5 ] On June 18, 2015, the applicant submitted a Notice of Appeal to the IAD. [ 6 ] On December 22, 2015, the IAD asked the parties to file their written representations regarding its jurisdiction, pursuant to subsections 64(1) and 64(2) of the IRPA , with respect to the appeal in the case of serious criminality, given the applicant’s sentence. [ 7 ] On January 11, 2016, the applicant submitted her written representations to the IAD through her counsel. [ 8 ] On March 15, 2016, the IAD declined jurisdiction and dismissed the appeal. III.

Decision [ 9 ] In its decision, the IAD considers that the applicant lost her right to appeal because she was convicted of two offences under paragraph 36(1)(

a) of the IRPA and because she falls under subsections 64(1) and 64(2) of the IRPA , given that she received a sentence of imprisonment of at least six months. [ 10 ] The IAD equates the conditional sentence of two years less a day to a sentence of imprisonment within the meaning of paragraph 36(1) (

a) of the IRPA , based on the Federal Court decision, Canada (Public Safety and Emergency Preparedness) v. Tran , 2015 FCA 237 [ Tran FCA ], at paragraph 88 (the Court underscores that there is no connection between the case of the applicant, Hong Nhan Tran, and the decision cited). A conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code may reasonably be construed as a term of imprisonment under paragraph 36(1) (

a) of the IRPA . [ 11 ] Consequently, the IAD finds that it does not have the required jurisdiction to hear the applicant’s appeal and dismisses it. IV. Relevant Provisions

[12] In this matter, provisions 36(1)(a), 64(1) and 64(2) of the IRPA apply. They were considered by the Federal Court in Tran v.Canada (Public Safety and Emergency Preparedness), 2014 FC 1040, then by the Federal Court of Appeal in Tran FCA, cited above. V. Parties’ Representations [13] The applicant submits that the IAD’s decision to consider the sentence of imprisonment of two years less a day to be served inthe community as equivalent to a sentence of imprisonment of at least six months within the meaning of paragraph 36(1)(

a) of the IRPAis unreasonable. She argues that the Federal Court of Appeal, in spite of its findings, wanted to leave the ID and IAD decision-makerssome latitude. Obviously the deference granted to administrative decision makers is in part meant to give them flexibility to adjust to new argumentsand circumstances. It is thus obviously open to the ID and the IAD to adopt another

interpretation should they believe that it is warrantedby the inconsistent consequences described above. (Tran FCA, cited above, at paragraph 87) Thus, according to the applicant, it was unreasonable for the IAD not to present its own analysis regarding the inconsistent consequencesthat this

interpretation of paragraph 36(1)(

a) of the IRPA was likely to entail. In effect, a sentence of imprisonment of a little less than sixmonths would be treated less severely than a conditional sentence of a little more than six months. [14] Furthermore, the applicant maintains that the IAD committed an error by refusing to suspend the review of her file,considering that an application for leave to appeal the Tran FCA decision was filed with the Supreme Court on December 29, 2015, andgranted on April 14, 2016.

The applicant argues that the IAD’s decision not to wait for the Supreme Court’s decision is unreasonablebecause it does not take into account the three-year time limit for appealing before the IAD and it demonstrates a lack of comity towardsthe Supreme Court. [15] Conversely, the respondent maintains that the IAD was required to apply the principle of stare decisis and follow the findingsestablished by the Federal Court of Appeal in Tran FCA, rather than re-interpreting them. Moreover, the respondent notes that the IAD isfree (but not required) to propose an

interpretation that differs from that of the Federal Court of Appeal if new arguments or newcircumstances warrant it, which is not the situation in this case. [16] Finally, the respondent says that it is not in the interests of justice to suspend the applicant’s appeal book for more than a year,citing the decisions of this Court that established that lower courts are required to continue to apply the law until it is overturned evenwhen there is a pending appeal (Ospina Velasquez v. Canada (Citizenship and Immigration), 2013 FC 273, at paragraph 9, and MataMazima v.

Canada (Citizenship and Immigration), 2012 FC 698, at paragraph 12). VI. Issues in dispute [17] The Court identified the following questions in this matter: 1) Were there sufficient grounds for the IAD’s decision to decline jurisdiction and dismiss the applicant’s appeal? 2) Did the IAD err in fact and in law by deciding not to suspend the review of the applicant’s case while waiting for the SupremeCourt’s decision in Tran FCA? [18] The applicable standard of review for the first issue in dispute is that of correctness.

It involves a principle of proceduralfairness, specifically the requirement that administrative decision-makers give reasons for their decision (Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 SCR 817). [19] If the Court answers the first question in the affirmative and turns to the second issue in dispute, the applicable standard ofreview is that of reasonableness (Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9). VII. Analysis [20] The application for judicial review should be allowed.

The IAD’s decision is unfair in that the IAD breached its duty toprovide sufficient reasons for its decision, in particular, its

interpretation of paragraph 36(1)(

a) of the IRPA. A. Reasons for the IAD’s decision [21] In Tran FCA, at paragraphs 81 and 86, the Federal Court of Appeal points out that a certain

interpretation ofparagraph 36(1)(

a) of the IRPA might produce inconsistent consequences, but that the legislative history shows that Parliament wasaware of and wanted this state of affairs: [81]. The legislative history is particularly relevant in this case to assessing what I consider the most serious argument militatingagainst the

interpretation adopted by the Minister’s delegate: the inconsistent consequences and even absurdity when one considers thatthe IRPA treats a conditional sentence of imprisonment of seven months more severely than a five months jail term. . . .

[86] The opinion that Parliament still views terms of imprisonment of more than six months served in the community as seriousenough to warrant losing one’s right of appeal of a finding of inadmissibility is certainly supported by the legislative history whensubsection 64(2) was amended in 2013 allegedly to put it in line with paragraph 36(1)(a). Although such interpretative tools are typicallygiven less weight than others, I simply cannot conclude that the

interpretation of the Minister’s delegate, which the legislative historyappears to support, should be found unreasonable on the basis that it produces inconsistent consequences which might be regarded asabsurd.

These inconsistencies were clearly spelled out and considered before the adoption of subsection 64(2) and no change was madeto exclude those inconsistent consequences. [22] Nevertheless, as previously mentioned, the Federal Court of Appeal wanted to give the Courts latitude in applying thisprovision: Obviously the deference granted to administrative decision makers is in part meant to give them flexibility to adjust to new argumentsand circumstances. It is thus obviously open to the ID and the IAD to adopt another

interpretation should they believe that it is warrantedby the inconsistent consequences described above. (Tran FCA, cited above, at paragraph 87) [23] In this case, although the IAD is not required to interpret this provision differently, its decision-makers must neverthelessprovide sufficient reasons for their decisions. [24] In Febles v. Canada (Citizenship and Immigration), [2014] 3 SCR 431, 2014 SCC 68, in a decision written byChief Justice McLachlin, the Supreme Court describes the determination of the severity of a crime as follows: [62] The Federal Court of Appeal in Chan v.

Canada (Minister of Citizenship and Immigration), (FCA),[2000] 4 F.C. 390 (C.A.), and Jayasekara, was of the view that the crime is generally considered serious if a maximum sentence of tenyears or more could have been imposed had the crime been committed in Canada. I agree. However, this generalization should not beunderstood as a rigid presumption that is impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985, c.

C-46has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime wouldfall at the less serious end of the range in Canada should not be presumptively excluded.

Article 1F(

b) is designed to exclude only thosewhose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission ofany of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (Goodwin-Gill, atp. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection.However, as indicated, the presumption may be rebutted in a particular case.

While consideration of whether a maximum sentence of tenyears or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximumsentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not beapplied in a mechanistic, decontextualized, or unjust manner. [Emphasis of the Court] [25] The IAD should have allegedly considered the applicant’s specific case and provided sufficient reasons for its decision inorder to ensure procedural fairness. B.

Suspension of the appeal while awaiting the Supreme Court’s decision. [26] Given the Court’s finding on the matter of procedural fairness, the question of whether or not to suspend the appeal book untilthe Supreme Court renders a final ruling on Tran FCA becomes theoretical. [27] However, it should be pointed out that a modern decision rendered by Justice Yves de Montigny, Federal Court judge at thetime, found that the IAD could have allegedly suspended the case being appealed, given the significance of the questions raised and inthe interests of justice to avoid inconsistent decisions.

Under such circumstances, deference to the Supreme Court allows a proceeding tobe suspended: [11] In the meantime (on July 4, 2013), the Supreme Court granted leave to appeal in Febles v Canada (Citizenship and Immigration),2012 FCA 324 [Febles FCA]. On November 12, 2013, the Applicant requested a stay of this proceeding pending the SCC decision inFebles. The Applicant also requested to make further submissions after the Febles SCC decision was rendered. 12. On November 26, 2013, Chief Justice Crampton granted the request. The SCC decision in Febles was rendered on October 30,2014.

On January 13, 2015, Justice Beaudry ordered that the parties make submissions on the impact of the Supreme Court’s decision inFebles. [Emphasis of the Court] (Jung v. Canada (Citizenship and Immigration), 2015 FC 464 [28] Consequently, the Court is of the opinion that the IAD’s decision not to suspend the applicant’s appeal until the SupremeCourt renders a decision in Tran FCA merits consideration by the IAD. VIII. Conclusion [29] The Court finds that there was a breach of the duty of procedural fairness as a result of the IAD’s failure to present sufficientgrounds for its decision.

The application for judicial review is allowed. The Court refers the case to the IAD for reconsideration by adifferent panel of the restriction on the right of appeal. JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is allowed and that the case is referred back to the IAD for reconsideration by a different panel of the restriction on the right of appeal. There is no question of importance to certify. "Michel M.J. Shore" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1429-16 STYLE OF CAUSE: HONG NHAN TRAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: September 14, 2016 JUDGEMENT AND REASONS: SHORE J.

DATED: September 20, 2016 APPEARANCES : Stéphane Handfield For the Applicant Geneviève Bourbonnais For the Respondent SOLICITORS OF RECORD : Handfield & Associés, Avocats Montréal, Quebec For the Applicant William F. Pentney Deputy Attorney General of Canada Montréal, Quebec For the Respondent