Re-opening at the IAD; justice overcomes nonsense

One of the most confusing aspects of reporting conditions for a non-citizen in Canada under reporting terms is the simple fact that Canada Border Services Agency and the Immigration and Refugee Board are not the same entities.

Ron Poulton

One of the most confusing aspects of reporting conditions for a non-citizen in Canada under reporting terms is the simple fact that Canada Border Services Agency and the Immigration and Refugee Board are not the same entities.

They both emanate from government but they are then quickly insulated from one another by an impenetrable wall of principle. The IRB is an independent decision-maker, and CBSA is the prosecutor. But those appearing before the Board don’t really believe it. They believe that government is government and the judges from the government are linked to the government prosecutors. Sometimes, this is certainly true.  But, great effort is made by both parties to keep the distinction straight. But more often than not, it doesn’t work – at least from the perspective of the person told to report.

Reporting is a necessary requirement of having done something bad and being given a chance. Whether a person failed to appear for removal and was detained then released, or had been ordered deported but had the removal stayed on condition, reporting while under watch is usually a requirement. When a person fails to report, they can face harsh consequences such as detention, or worse, the loss of permanent residency.

And so, because of a failure to understand the distinction between CBSA and the IRB, and a difference of a few floors in the same building, Mohsen Dehghani almost lost his permanent residency in Canada.

Dehghani was not without fault in finding himself at the edge of banishment from Canada. He was, and now still is, a permanent resident of Canada, but with the blemished past of a criminal record. He had been convicted of criminal harassment and sentenced to an intermittent sentence of 90 days. He was then convicted of personation and sentenced to 11 days in jail and ordered deported. As the sentence was less than six months, he had a right of appeal to the Immigration Appeal Division of the IRB, and he exercised that right, which effectively stayed his removal pending the appeal hearing.

Then things fell apart.

As part of the appeal process, the IAD – the board – sends to appellants a document called a Confirmation of Intent to Proceed. They ask appellants to sign it, and return it to them. In this case, Dehghani signed it and returned it to the CBSA office at 74 Victoria St. in Toronto. Unfortunately, believing they were one and the same office, he failed to deliver it to the IAD, located on the second floor of the same building.

As they had not received this document, the IAD dismissed the appeal, assuming that it had been abandoned, thus extinguishing the applicant’s permanent residency and activating the removal order. Once he became aware of what had happened – and he became aware as CBSA moved to deport him from Canada – Dehghani moved to re-open his appeal. CBSA consented to that re-opening. However, his application was denied, and he then sought judicial review of that decision.

On judicial review, the court stepped in and saw the absurdity of what had happened. Dehghani had clearly never intended to abandon his appeal. He merely made an inadvertent error in assuming that when he delivered a paper to CBSA, the Board got it also. The appeal was of great importance to him, and so the procedural protections ought to be at the highest. That meant that he ought to have been given a chance to explain himself, before the appeal was abandoned. Dehghani had done everything right (almost), from address changes to other notifications. He messed up on the one document. The court said the IAD then messed up in breaching natural justice by not giving him a chance to explain why he messed up. At the end of the day, the Court cleaned up the mess, and did some justice. As it should.

Free newsletter

The Canadian Legal Newswire is a FREE weekly newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered every two weeks, providing targeted news and information of interest to in-house counsel.

Please complete the form below to receive the weekly Canadian Legal Newswire and/or the Canadian Inhouse Legal Newswire.

Recent articles & video

Quebec taking harsh line on cannabis edibles

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling?

Copyright law: set for an overhaul?

Corporate Counsel Survey 2019 closes on Monday, Aug 26

When Legal Aid is a political prop, Access to justice suffers

The subsidiary entity exposure conundrum

Most Read Articles

Canadian Judicial Council seeks leave to SCC in Girouard case

B.C. animal law ruling means death for dangerous dogs

The Ontario government is destroying university legal clinics

Quebec taking harsh line on cannabis edibles