Vigneswarabalan v. Canada (Public Safety and Emergency Preparedness)

Vigneswarabalan v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2024-11-20
Neutral citation
2024 FC 1851
File numbers
IMM-11320-23
Decision Content
Date: 20241120
Docket: IMM-11320-23
Citation: 2024 FC 1851
Ottawa, Ontario, November 20, 2024
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
MEKALAN VIGNESWARABALAN
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
JUDGMENT AND REASONS
[1] The Applicant, Mekalan Vigneswarabalan, seeks judicial review of the August 24, 2023, decision of the Immigration Appeal Division [IAD]. The IAD found that it lacked jurisdiction to reopen Mr. Vigneswarabalan’s appeal of the Deportation Order (also referred to as a removal order) rendered by the Immigration Division [ID]. The IAD found that its appeal decision, dated December 9, 2021, which granted Mr. Vigneswarabalan a stay of the ID’s Deportation Order was cancelled by operation of law and the appeal was terminated due to Mr. Vigneswarabalan’s subsequent criminal conviction and in accordance with subsection 68(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. The IAD concluded that it did not retain the jurisdiction to reopen Mr. Vigneswarabalan’s appeal pursuant to section 71 for an alleged breach of natural justice.
[2] Mr. Vigneswarabalan disputes the IAD’s interpretation of section 71 of the Act, which permits the IAD to reopen an appeal where the IAD is “satisfied that it failed to observe a principle of natural justice” and subsection 68(4) of the Act, which cancels a stay of deportation where the subject of the stay is convicted of an offence referred to in subsection 36(1) of the Act during the term of the stay of deportation. He argues that the IAD conflated discretion with jurisdiction and fettered its discretion by declining jurisdiction to reopen the appeal.
[3] For the reasons that follow, the application for judicial review is granted. The IAD erred in finding that it had no jurisdiction to consider whether a breach of natural justice had been established, and if so, to reopen the appeal. Where a breach of natural justice is established, there must be a remedy for the breach.
I. Background [4] Mr. Vigneswarabalan is a citizen of Sri Lanka. He arrived in Canada in 2004, at the age of 10, as a permanent resident.
[5] Mr. Vigneswarabalan was convicted twice of one count of assault with a weapon contrary to subsection 267(1) of the Criminal Code, RSC 1985, c C-46 [the Code] in December 2016 and subsequently, in September 2018.
[6] Due to the criminal convictions, the ID held an admissibility hearing. On January 15, 2021, the ID issued a Deportation Order to Mr. Vigneswarabalan. He appealed the Deportation Order to the IAD. Mr. Vigneswarabalan was represented by counsel.
[7] Five months later, on May 18, 2021, Mr. Vigneswarabalan was charged with impaired driving. He retained the same counsel to represent him at his criminal proceeding.
[8] On December 9, 2021, the IAD heard Mr. Vigneswarabalan’s appeal and granted him a two-year stay of his Deportation Order pursuant to paragraph 67(1)(c) of the Act on terms and conditions. (In other words, he would not be removed from Canada if he complied with certain conditions and his appeal of the Deportation Order would be considered again at the end of the two-year period). At the time of the IAD hearing, Mr. Vigneswarabalan had not yet been convicted of the impaired driving charge, but he advised the IAD of his intention to plead guilty.
[9] On July 25, 2022, eight months after the IAD granted Mr. Vigneswarabalan a two-year stay of his deportation, he entered a guilty plea and was convicted of the impaired driving offence.
[10] On September 28, 2022, Mr. Vigneswarabalan was notified that the IAD had cancelled the stay of his Deportation Order and that his appeal (i.e., of the ID decision, which would otherwise have been considered again by the IAD in two years’ time) was terminated in accordance with subsection 68(4) of the Act due to his criminal conviction. As a result, his Deportation Order could be executed.
[11] Mr. Vigneswarabalan’s counsel advised him to seek a Pre-Removal Risk Assessment [PRRA]. On March 29, 2023, the PRRA was refused.
[12] Mr. Vigneswarabalan retained new counsel and applied to the IAD to reopen the IAD’s December 2021 appeal decision of the ID’s Deportation Order and to restore the IAD’s order staying his deportation. He argued that inadequate legal representation by his previous counsel breached principles of natural justice and that the IAD’s December 2021 decision was reached as a result of this breach. He also noted that the IAD found him to be remorseful and his outstanding charges to be minor, and noted that he was taking steps to ensure he would not reoffend.
[13] The Minister opposed the application to reopen the appeal, noting among other things, that: there was no response from the previous counsel regarding the allegation of incompetence; the objective evidence was that Mr. Vigneswarabalan wanted to defer his plea to retain his driver’s licence for work purposes; the IAD’s December 2021 decision clearly stated the consequences of a subsequent conviction; despite any claim of inadequate legal representation, there was no breach of natural justice given that Mr. Vigneswarabalan was clearly aware of the consequences before he entered his guilty plea; it is simply speculation that the IAD would have granted the stay regardless of the subsequent conviction, noting that the stay was imposed with conditions (i.e. the appeal was not allowed but rather would be considered again in two years’ time to assess whether the terms and conditions were met and whether the appeal should be allowed, dismissed or a further stay ordered); all parties were aware of the pending charge at the time the stay was granted; reopening the appeal would by-pass the consequences of subsection 68(4); and, the IAD does not have jurisdiction to ignore subsection 68(4).
[14] Mr. Vigneswarabalan provided additional submissions in response to the Minister. He acknowledged that he was clearly caught by subsection 68(4) of the Act.
[15] Mr. Vigneswarabalan again argued that his application to reopen the Appeal was to remedy a breach of natural justice caused by the incompetence of his previous counsel. He cited the jurisprudence that establishes the test to be met, noting among other things: that previous counsel advised him to plead guilty to the impaired driving charge but did not advise him that the timing of entering his plea would have implications for his stay of deportation; previous counsel acknowledged their errors; he was prejudiced by the cancellation of his stay and termination of his appeal; but for the errors made by previous counsel, there was a reasonable probability that his stay would not have been cancelled (i.e., subsection 68(4) would not have applied as he would have been convicted before the IAD considered his appeal); and, that the IAD would have granted him a stay of deportation despite his conviction. Mr. Vigneswarabalan further submitted that the “Important Warning” on the December 2021 IAD stay order was not easily understood by a lay man and not sufficient notice of the consequences, and too late for him to avoid the consequences of subsection 68(4).
[16] Mr. Vigneswarabalan acknowledged that section 71 permits the IAD to reopen an appeal only when there is a breach of natural justice, but argued that there are no other restrictions and that section 71 permits the IAD to reopen an appeal even when the appeal has been terminated by operation of law due to subsection 68(4). He argued that Parliament did not intend that subsection 68(4) could remove the IAD’s jurisdiction or discretion to remedy a breach of natural justice.
[17] On August 24, 2023, the IAD rendered its decision refusing to reopen Mr. Vigneswarabalan’s appeal and reconsider whether his stay of the Deportation Order should be granted (despite his subsequent conviction). The IAD’s August 24, 2023, decision is the subject of this Application for Judicial Review.
[18] Mr. Vigneswarabalan complied with his Deportation Order and departed Canada on August 29, 2023.
II. The Decision under Review [19] The IAD set out the context, noting that Mr. Vigneswarabalan’s “appeal was terminated on the basis of the subsequent criminal conviction during the term of the stay”. The IAD acknowledged the submissions of the Respondent and of the current counsel for Mr. Vigneswarabalan, as described above.
[20] The IAD accepted that a breach of procedural fairness may result from incompetent representation if a miscarriage of justice results. However, the IAD did not make any finding that there had been a breach of natural justice due to the incompetence of counsel. (The IAD interchangeably refers to a breach of natural justice and procedural fairness, meaning the same thing.)
[21] The IAD noted that there were two decisions relevant to the application to reopen the appeal of the ID’s Deportation Order: the December 2021 decision and the September 2022 decision.
[22] The IAD found that the alleged breach of natural justice pertained only to the December 2021 decision, which granted the stay of deportation. The IAD acknowledged that it would have had jurisdiction to reopen its December 2021 decision if that decision had been reached based on a breach of the principles of natural justice. The IAD found, however, that Mr. Vigneswarabalan’s application to reopen the appeal would have had to have been made before his impaired driving conviction and it was not. The IAD noted that subsection 68(3) would permit the IAD to reconsider an appeal on application or on its own initiative; however, the impaired driving conviction “triggered” subsection 68(4), which cancelled the stay and terminated the appeal of the Deportation Order.
[23] The IAD noted that it had convened the September 2022 hearing to determine whether the requirements of subsection 68(4) were met and found they were met. As a result, Mr. Vigneswarabalan’s appeal of the ID’s Deportation Order was terminated. The IAD noted that the “clear intention of Parliament was to remove jurisdiction from the IAD”, and found that as a result, it did not have jurisdiction to order that the appeal continue or that the stay of deportation be reconsidered. The IAD noted that this was not a discretionary decision, but rather was required upon determining that subsection 68(4) applied.
[24] The IAD found that Mr. Vigneswarabalan’s challenge to the September 2022 decision that cancelled the stay and terminated the appeal had “no merit because the impaired driving conviction removed jurisdiction from the IAD to reinstate the stay and reopen the appeal by statute. This decision also removed jurisdiction from the IAD to revisit the December 2021 decision to grant the stay because the appeal has been terminated”
[25] The IAD further found that even if its September 2022 decision had been tainted by the December 2021 decision “in which there was a breach of natural justice”, reopening the appeal would lead to the same result; the IAD would redetermine the appeal on the basis of the same evidence, including the subsequent conviction during the term of the stay of the Deportation Order. The IAD found that because the criteria for subsection 68(4) were established, the IAD would still be required to cancel the stay and terminate the “reopened removal order appeal”.
[26] The IAD agreed that section 71 “does not deprive the IAD of jurisdiction to reopen any decision if principles of natural justice were violated” but concluded that on the particular facts, reopening the appeal would serve no useful purpose.
[27] The IAD then found that it was unnecessary to determine whether Mr. Vigneswarabalan’s previous counsel’s conduct met the high standard for establishing a breach of natural justice because, in order to do so, the IAD would need to reopen an appeal which “has already been terminated without legal authority”.
[28] In conclusion, the IAD noted that “although a potential breach of natural justice may have affected the December 2021 proceedings and decision”, Mr. Vigneswarabalan was convicted of an offence during the term of the stay of his Deportation Order, which triggered the consequences of subsection 68(4). The IAD again noted that any remedy from the IAD arising from an alleged breach of natural justice would have to have been pursued before the conviction.
[29] To summarize, the IAD made three findings:
The IAD found that it did not have jurisdiction to reopen the appeal pursuant to section 71 because the IAD lost jurisdiction over the appeal as a result of subsection 68(4), which cancelled the stay and terminated the appeal by operation of law. The IAD found that even if it could reopen the appeal for a breach of natural justice because a “potential breach of natural justice may have affected the December 2021 proceedings and decision”, there would be no point to do so because the IAD would still be required to apply subsection 68(4) given the subsequent conviction. The IAD found that it was not necessary to determine whether there was a breach of natural justice caused by the alleged incompetence of the previous counsel.
III. The Statutory Provisions
Disposition
Décision
66 After considering the appeal of a decision, the Immigration Appeal Division shall
66 Il est statué sur l’appel comme il suit :
(a) allow the appeal in accordance with section 67;
a) il y fait droit conformément à l’article 67;
(b) stay the removal order in accordance with section 68; or
b) il est sursis à la mesure de renvoi conformément à l’article 68;
(c) dismiss the appeal in accordance with section 69.
c) il est rejeté conformément à l’article 69.
Appeal allowed
Fondement de l’appel
67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
67 (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
(a) the decision appealed is wrong in law or fact or mixed law and fact;
a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
(b) a principle of natural justice has not been observed; or
b) il y a eu manquement à un principe de justice naturelle;
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
Effect
Effet
(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.
(2) La décision attaquée est cassée; y est substituée celle, accompagnée, le cas échéant, d’une mesure de renvoi, qui aurait dû être rendue, ou l’affaire est renvoyée devant l’instance compétente.
Removal order stayed
Sursis
68 (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
68 (1) Il est sursis à la mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
Effect
Effet
(2) Where the Immigration Appeal Division stays the removal order
(2) La section impose les conditions prévues par règlement et celles qu’elle estime indiquées, celles imposées par la Section de l’immigration étant alors annulées; les conditions non réglementaires peuvent être modifiées ou levées; le sursis est révocable d’office ou sur demande.
(a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;
Blanc
(b) all conditions imposed by the Immigration Division are cancelled;
Blanc
(c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and
Blanc
(d) it may cancel the stay, on application or on its own initiative.
Blanc
Reconsideration
Suivi
(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.
(3) Par la suite, l’appel peut, sur demande ou d’office, être repris et il en est disposé au titre de la présente section.
Termination and cancellation
Classement et annulation
(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality, criminality or transborder criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
(4) Le sursis de la mesure de renvoi pour interdiction de territoire pour grande criminalité, criminalité ou criminalité transfrontalière est révoqué de plein droit si le résident permanent ou l’étranger est reconnu coupable d’une autre infraction mentionnée au paragraphe 36(1), l’appel étant dès lors classé.
[…]
[…]
Reopening appeal
Réouverture de l’appel
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.
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.
IV. The Applicant’s Submissions [30] Mr. Vigneswarabalan submits that the sole issue on this Application is whether the IAD fettered its discretion in declining to apply section 71 of the Act to reopen the December 2021 appeal of his Deportation Order. He submits that by fettering its discretion, the IAD’s decision is not reasonable.
[31] Mr. Vigneswarabalan argues that the IAD erred in finding that because his appeal was terminated by operation of law due to subsection 68(4) it lacked jurisdiction to reopen the appeal pursuant to section 71.
[32] Mr. Vigneswarabalan makes many of the same arguments that he made to the IAD as noted above.
[33] Mr. Vigneswarabalan agrees that section 71 permits the IAD to reopen an appeal only where there has been a breach of natural justice. He argues that the IAD failed to consider that the conduct of his previous counsel clearly amounted to a breach of natural justice that should be attributed to the IAD, and this vitiates the IAD’s December 2021 decision that granted the stay of deportation for a two-year period.
[34] The thrust of Mr. Vigneswarabalan’s argument is that, but for the bad advice or lack of advice, he would have entered a guilty plea and been convicted of impaired driving before December 2021 and the IAD would have considered this additional conviction when determining whether to grant him a stay of removal. He submits that the IAD would have granted the stay regardless, given the IAD’s comments that this was a minor charge, that he was on the right path and that humanitarian and compassionate factors were present to overcome the impact of his reportable offences. If this had occurred, his post-stay conviction would not have resulted in the cancellation of his stay of removal in accordance with subsection 68(4) of the Act.
[35] Mr. Vigneswarabalan notes that his previous counsel acknowledged his inadequate representation due to illness and lack of familiarity with the Act and the implications of a subsequent conviction. Mr. Vigneswarabalan adds that his previous counsel mistakenly thought that disclosing the outstanding criminal charge and Mr. Vigneswarabalan’s intention to plead guilty would be sufficient to avoid the consequences of subsection 68(4).
[36] Mr. Vigneswarabalan acknowledges that he was also reluctant to enter a guilty plea earlier as this would have required him to surrender his driver’s licence.
[37] Mr. Vigneswarabalan disputes the IAD’s finding that Parliament clearly intended to remove jurisdiction from the IAD where subsection 68(4) was triggered. He argues that subsection 68(4) does not state that the termination of an appeal removes the jurisdiction of the IAD, noting that this would mean that no administrative body has jurisdiction. He adds that the Act does not define what it means for an appeal to be “terminated”.
[38] Mr. Vigneswarabalan submits that the IAD has both the jurisdiction and the discretion to reopen an appeal pursuant to section 71 even where subsection 68(4) applies.
[39] Mr. Vigneswarabalan also argues that the IAD’s second finding—that there would be no point to reopen the appeal because the IAD would be required to make the same decision to terminate the appeal due to subsection 68(4)—renders the IAD’s authority to reopen an appeal to remedy a breach of natural justice meaningless.
V. The Respondent’s Submissions [40] The Respondent notes that it is not disputed that Mr. Vigneswarabalan was convicted of an offence of serious criminality subsequent to his stay being granted and, as a result, he falls within subsection 68(4) of the Act. The Respondent submits that subsection 68(4) expressly limits the IAD’s jurisdiction by automatically cancelling an applicant’s stay of removal by operation of law and terminating the appeal.
[41] The Respondent notes that it is also not disputed that section 71 of the Act permits the IAD to reopen an appeal only if the IAD is satisfied that it failed to observe a principle of natural justice.
[42] The Respondent submits that given that Mr. Vigneswarabalan’s stay was cancelled by operation of law and his appeal was terminated pursuant to subsection 68(4) of the Act, it was open to the IAD to find that it did not have the jurisdiction to reopen the December 2021 appeal decision pursuant to section 71.
[43] The Respondent points to this Court’s jurisprudence that has found that absent an explicit condition at the time of an applicant’s initial stay, subsequent convictions for pre-existing charges are caught by subsection 68(4), which cancels the stay and terminates the appeal (Caraan v Canada (Public Safety and Emergency Preparedness), 2013 FC 360 at paras 44-48 [Caraan]; Canada (Citizenship and Immigration) v Bui, 2012 FC 457 at paras 31-53 [Bui]).
[44] The Respondent notes that although the IAD was aware of Mr. Vigneswarabalan’s impaired driving charge at the time the IAD granted the stay of the Deportation Order, the IAD did not include a condition to address the possible post-stay conviction that could result for the pre-stay charge.
[45] The Respondent submits that Mr. Vigneswarabalan merely speculates that the IAD would have granted him the stay regardless of his additional conviction or that he would not again face the consequences of subsection 68(4) if the IAD’s decision is set aside and redetermined.
[46] The Respondent submits that the IAD also reasonably concluded that even if there were a breach of natural justice, the outcome would be the same on reconsideration. The Respondent submits that Mr. Vigneswarabalan would likely be again caught by subsection 68(4) of the Act.
VI. The Issues
[47] As noted, Mr. Vigneswarabalan identifies one issue; whether the IAD fettered its discretion by finding that it did not have jurisdiction to reopen the appeal.
[48] The more general issue is whether the IAD’s decision to not reopen Mr. Vigneswarabalan’s appeal is reasonable. This entails consideration of the reasonableness of the IAD’s three findings:
Whether the IAD reasonably found that it could not reopen the appeal—even if a breach of natural justice were established—because the requirements of subsection 68(4) were met, which cancelled the stay of deportation, terminated the appeal and removed jurisdiction from the IAD. Whether the IAD reasonably found that even if it could reopen the appeal for a breach of natural justice there would be no point to do so because the IAD would still be required to apply subsection 68(4) given the subsequent conviction. Whether the IAD reasonably found that it was unnecessary to determine whether the alleged incompetence of counsel amounted to a breach of natural justice.
VII. The Standard of Review [49] In Mason v Canada (Citizenship and Immigration), 2023 SCC 21, at para 38, [Mason], the Supreme Court of Canada affirmed that the presumptive standard of review for administrative decisions is reasonableness, including when the interpretation of a statutory provision is at issue as in the present case. No established exception to the presumption of review for reasonableness applies in this case (Mason at paras 39-47).
[50] Whether the decision is reasonable is reviewed in accordance with the principles set out in Canada (Minister of Citizenship and Immigration v Vavilov, 2019 SCC 65 [Vavilov]. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at paras 85, 102, 105–107). The court does not assess the reasons against a standard of perfection (Vavilov at para 91). A decision should not be set aside unless it contains “sufficiently serious shortcomings ... such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100).
[51] Where allegations of a breach of procedural fairness are made against the decision‑maker, the court must determine whether the procedure followed is fair having regard to all of the circumstances. The court must ask “with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed” (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54). Where a breach of procedural fairness is found, no deference is owed to the decision‑maker.
[52] In the present case, the allegations of a breach of procedural fairness or natural justice relate to the conduct of counsel, not of the IAD. It is well-established that a breach of natural justice or procedural fairness may arise from representation by incompetent counsel; however, the threshold to establish incompetence constituting such a breach is high.
[53] In Zakeri v Canada, 2023 FC 421 [Zakeri], a judicial review of a decision of the Refugee Appeal Division, Justice Gascon explained at para 19:
[19] The tripartite test to establish a procedural fairness violation resulting from incompetent representation requires an applicant to demonstrate the following: i) prior counsel’s acts or omissions constituted incompetence; ii) a miscarriage of justice resulted, in the sense that, but for the alleged conduct, there is a reasonable probability that the result would have been different; and iii) the prior counsel was given a reasonable opportunity to respond (Rendon Segovia v Canada (Citizenship and Immigration), 2020 FC 99 [Rendon Segovia] at para 22; Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at para 11; Pathinathar v Canada (Citizenship and Immigration), 2013 FC 1225 at para 25; Nagy v Canada (Citizenship and Immigration), 2013 FC 640 at para 25).
[54] In Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 [Satkunanathan], in the context of a judicial review of the IAD’s decision to dismiss the applicant’s appeal (not an application to reopen pursuant to section 71), Justice Pamel considered whether the applicant was denied procedural fairness in her appeal as a result of negligent or incompetent representation, such that judicial review of the IAD decision was warranted.
[55] Justice Pamel cited the two-part test in Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 36‑38, noting at para 36:
First, an applicant must establish that his/her previous counsel’s acts or omissions constituted incompetence. Second, the acts or omissions must have resulted in a miscarriage of justice.
[56] Justice Pamel found on the facts of the case that the former counsel did not have sufficient knowledge to advance the applicant’s case and that “it is because of such shortcomings on the part of Former Counsel that the Applicant was deprived of a full and complete hearing before the IAD (Mathon v Canada (Minister of Employment and Immigration), [1988] FCJ No 707 (QL))”.
VIII. The Jurisprudence – What is Settled and What is Not Settled A. Section 71 [57] In Nazifpour v Canada (Minister of Citizenship and Immigration), 2007 FCA 35 [Nazifpour], Justice Evans considered section 71 following amendments enacted in 2001. Justice Evans considered the legislative history, the principles of statutory interpretation and the intention of the legislator and concluded, at para 71, that the effect of section 71 was to “restrict the IAD’s right to reopen to cases [to] where there had been of breach of a principle of natural justice.”
[58] Justice Evans responded to the certified question, at para 83, agreeing that:
[…] section 71 of IRPA extinguish[es] the continuing “equitable jurisdiction” of the IAD to reopen an appeal against a deportation order, except where the IAD has failed to observe a principle of natural justice[.]” [Emphasis added.]
[59] Section 71 would apply where an appeal has been dismissed, resulting in a removal or deportation order being active, but where deportation has not been executed and the person remains in Canada, or where a stay of removal has been granted for a period of time, but due to the breach of a condition, the removal order could be executed. There would appear to be no need for the IAD to “reopen” an appeal in any other context, given that judicial review could be sought for a decision to grant or dismiss an appeal. Mr. Vigneswarabalan falls within the scope of section 71; his Deportation Order was in effect but he had not yet left Canada at the time he sought to reopen his appeal of his Deportation Order.
[60] There is no longer any dispute that section 71 permits the IAD to reopen an appeal only for a breach of natural justice; however, the wording, “if it is satisfied that it failed to observe a principle of natural justice”, differs from other provisions in the Act and in the Immigration and Refugee Board rules that address a breach of natural justice. For example, paragraph 67(1)(b) of the Act refers to where “a principle of natural justice has not been observed”, and Rule 62(6) of the Refugee Protection Division Rules, SOR/2012-256 provides that the Refugee Protection Division “must not allow the application [to reopen the claim] unless it is established that there was a failure to observe a principle of natural justice.” A strict interpretation of section 71 suggests that the IAD may reopen an appeal only where the IAD has failed to observe a principle of natural justice. The other provisions are broader and would address any breach of natural justice.
[61] However, despite the wording of section 71, decisions of the IAD and of this Court have accepted that where the incompetence of counsel meets the high threshold to constitute a breach of natural justice, the failure “to observe a principle of natural justice” is attributed to the IAD. Where the alleged breach of natural justice does not arise from the incompetence of counsel, the Court has interpreted section 71 as limited to a breach by the IAD itself.
[62] In Kaur v Canada (Citizenship and Immigration), 2014 FC 505 [Kaur], the IAD had found that the IAD had jurisdiction to reopen an appeal on the basis of the alleged incompetence of counsel, but ultimately found that relief was not warranted because the applicant was not credible and the outcome of the appeal would not have been any different regardless of any such incompetence by counsel.
[63] On judicial review, Justice Noël addressed the applicant’s submission that the IAD had denied relief based on finding that the IAD had to be the cause of the breach of natural justice. Justice Noël noted that the IAD made no such finding, but addressed that issue. Justice Noël accepted that section 71 applies where there has been a breach of natural justice, noting at para 19, “[a]t the heart of the IAD’s decision to reopen an appeal is the determination of whether or not a breach of natural justice has occurred” [Emphasis added].
[64] With respect to whether the incompetence of counsel could call for a reopening of an appeal pursuant to section 71, Justice Noël stated at para 23:
[…] In cases where counsel incompetence leads to a breach of procedural [fairness] which changes the result of the claim, the IAD’s intervention in reopening the appeal pursuant to section 71 of the IRPA would be warranted.
[65] Justice Noël emphasized that the onus of establishing that the incompetence of counsel resulted in a breach of procedural fairness rests on the applicant and the well-established three‑prong test must be met.
[66] In Canada (Citizenship and Immigration) v Lui, 2021 FC 306 [Lui], Justice Walker found several errors in the decision of the IAD, which refused to reopen the applicant’s appeal of her removal order. Justice Walker cited Kaur and found that the IAD failed to cite or apply the test in section 71. Justice Walker stated at para 25:
Section 71 requires the IAD to make a finding that there was a breach of a principle of natural justice in the course of an applicant’s appeal proceedings. The breach must have been caused by the IAD itself or, for purposes of this case, by the negligence or incompetence of counsel that rises to the level of a breach of natural justice. As stated above, the IAD made no such finding in the Decision. The IAD was also required to consider the three Yang factors and did not. I find that the IAD’s analysis is not justified against the statutory and jurisprudential scheme within which it was required to exercise its discretion.
[67] As noted above, where the alleged breach of natural justice is not based on allegations of the incompetence of counsel, the Court has interpreted section 71 as requiring that the breach must be that of the IAD.
[68] In Canada (Public Safety and Emergency Preparedness) v Philistin, 2014 FC 762, Justice Roy found, at paras 24-25, that the basis of the alleged breach of natural justice was not clear. Justice Roy noted, at para 26, that Mr. Philistin was represented at the IAD and that there was no reason to “cause even a suspicion that Mr. Philistin did not have adequate representation”.
[69] With respect to the interpretation of section 71, Justice Roy stated:
[30] The respondent is also faced with jurisprudence from this Court stating that the failure to observe a principle of natural justice comes from the IAD itself. Accordingly, not only does new evidence not give rise to a remedy under section 71 of the Act (Nazifpour v Canada (Minister of Citizenship and Immigration), 2007 FCA 35, [2007] 4 FCR 515 [Nazifpour]) but the failure to observe a principle of natural justice must come from the IAD itself, which will then want to correct the error (Canada (Citizenship and Immigration) v Ishmael, 2007 FC 212; Canada (Citizenship and Immigration) v Kang, 2009 FC 941; Wilks v Canada Immigration and Refugee Board, 2009 FC 306). This approach seems to flow naturally from the English version of section 71, which speaks in terms of “may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice”. The failure to observe must be the IAD’s. [Emphasis added.]
[70] In Wilks v Canada (Citizenship and Immigration), 2009 FC 306, the Court noted at para 38:
The wording of section. 71 of IRPA, “[T]he Immigration Appeal Division … may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice” (emphasis added), makes it clear that the breach must be the fault of the IAD as an entity and not merely to the decision maker who determines the appeal to be abandoned.
[First emphasis in original; second emphasis added.]
[71] In Canada (Citizenship and Immigration) v Kang, 2009 FC 941 at para 29, the Court also found that section 71 applies where the breach of natural justice is that of the IAD:
[29] The enabling statutory provision and the jurisprudence of this Court makes it quite clear that in order for an appeal to be reopened, the IAD must be satisfied that it has itself failed to observe a principal of natural justice (Ye v. Canada (Minister of Citizenship and Immigration), 2004 FC 964, 254 F.T.R. 238; Nazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35, [2007] 4 F.C.R. 515; Canada (Minister of Citizenship and Immigration) v. Ishmael, 2007 FC 212, 309 F.T.R. 147; Wilks v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 306, [2009] F.C.J. No. 354 (QL) (Wilks)) […]
B. Subsection 68(4) [72] In Ferri v Canada (Citizenship and Immigration), 2005 FC 1580 [Ferri], the applicant sought judicial review of the IAD’s decision that refused to consider a constitutional challenge because the IAD found it had lost jurisdiction pursuant to subsection 68(4) due to the applicant’s subsequent conviction.
[73] Justice Mactavish found, at paras 39-41, that subsection 68(4) limits the IAD’s jurisdiction to establishing whether the criteria of subsection 68(4) have been met, and stated at para 41:
If the answer to each of these questions is in the affirmative, as is admittedly the case here, then the section is clear: the IAD loses jurisdiction over the individual, with the stay being cancelled and the appeal being terminated by operation of law. [Emphasis added.]
C. Exceptions to subsection 68(4) [74] In Canada (Minister of Citizenship and Immigration) v Malarski, 2006 FC 1007 [Malarski], the IAD granted the applicant a three-year stay of his deportation. The stay order included a provision exempting the applicant’s anticipated conviction on outstanding charges to ensure that the conviction would not result in the breach of the stay order [the Exception]. However, following the applicant’s conviction for these offences, the Minister notified the applicant that his stay had been cancelled and his deportation order was in force. The IAD declined to cancel the stay noting the Exception and commenting that the Minister’s approach was an abuse of process.
[75] On judicial review, Justice Simpson noted that, but for the Exception, the post-stay conviction would result in a breach of the stay; the stay would be cancelled by operation of law pursuant to subsection 68(4) and the appeal terminated. Justice Simpson found that the IAD did not err in finding that the stay had not been breached because the Exception applied, noting at para 18:
The Cancellation refers only to the Conviction and, in view of the Exception, the Conviction did not breach the Second Condition of the Stay. Accordingly, subsection 68(4) of the IRPA did not, in fact, cancel the Stay by operation of law based on a breach of the Stay. For this reason, the Cancellation is of no force and effect.
[76] In other words, the Court gave effect to an exception for the subsequent conviction of the outstanding charge that was included as a condition of the stay order, which avoided the application of subsection 68(4).
[77] In Bui, the IAD had granted a three-year stay of the removal order issued by the ID subject to several conditions. Three years later, in April 20