Date: 20060901
Docket: IMM-7131-05
Citation: 2006 FC 1055
Ottawa, Ontario, September 1, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
LEONID IVANOV
(A.K.A. LEON IVANOV, LEON ID IVANOV, LEONIV IVANOW
and LEORID IVANOV)
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision dated November 10, 2005 of
the Immigration Appeal Division of the Immigration and Refugee Board which
cancelled its 2001 direction staying the execution of the applicant’s removal
order, and dismissed his appeal under subparagraph 74(3)(b)(i) of the now
repealed Immigration Act,
R.S.C. 1985, c. I-2. The applicant has been a permanent resident of Canada for the past
30 years, and is now being deported to Georgia, his country
of origin and nationality.
Facts
[2]
The
applicant, a 46 year-old male citizen of Georgia, arrived in Canada in 1976 as a
permanent resident. On October 5, 1999, the Minister issued a deportation order
against the applicant on the basis that he was a person described in paragraph
27(1)(d) of the former Immigration Act for
having been convicted in Canada of an offence for which a term of imprisonment
of more than six months has been, or five years or more may be, imposed. Inter
alia, the applicant was convicted:
1. in 1987 for
possession of a weapon, assault causing bodily harm, and obstruction of
justice, for which he was sentenced to 15 months imprisonment and probation;
2. in February 1994
for extortion, mischief, and two counts of uttering threats, for which he was
sentenced to concurrent 5 month terms of imprisonment and probation for 3
years; and
3. in September 1997
for trafficking in narcotics, and possession of proceeds of crime, for which he
was sentenced to 30 day terms consecutive to the 5 months he was already
serving.
Stay of removal
[3]
The
applicant appealed the removal order under section 70 of the Immigration Act
to the Immigration Appeal Division (IAD) of the Board. At his appeal hearing on
January 15, 2001, the applicant conceded that the deportation order was valid.
However, on February 9, 2001 the Board granted the applicant a stay of removal
for 4 years, on 8 conditions, that he:
i. report in person
to an immigration officer every 6 months in Toronto;
ii. report in writing
any change of address;
iii. report in writing
any criminal convictions forthwith;
iv. make reasonable
efforts to seek and maintain full-time employment and report forthwith any
change in employment;
v. not knowingly associate
with individuals who have a criminal record or who are engaged in criminal
activity;
vi. not own or possess
offensive weapons or imitations thereof;
vii. refrain from the
illegal use or sale of drugs; and
viii. keep the peace
and be of good behaviour.
(Emphasis added.)
Decision under review
[4]
On
application by the respondent, the Board reviewed the stay of removal pursuant
to subsections 74(2) and (3) of the Immigration Act and section 192 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on January 15, 2005. At the hearing, the
applicant admitted that he breached the stay condition requiring him to keep
the peace and be of good behaviour, but submitted that:
1. he met the
condition to make reasonable efforts to seek and maintain full-time employment
by caring for his parents and grandmother in their home; and
2. there existed
sufficient humanitarian and compassionate considerations to warrant special
relief.
[5]
By
decision dated November 10, 2005, pursuant to subparagraph 74(3)(b)(i) of the Immigration
Act, the Board cancelled the stay of removal and dismissed the applicant’s
appeal, concluding in its reasons:
¶ 15 […] that this is not an
appropriate case in which the Division’s discretion ought to be continued to
the benefit of the appellant.
¶ 16 In coming to this decision the
panel considered a number of factors that included, but were not limited to,
the degree of establishment of the appellant in Canada; the appellant’s
rehabilitation and attitude; the extent of his non-compliance with the terms
and conditions of the IAD stay; and the danger the appellant poses to the
Canadian public.
Issues
[6]
The
issues raised by the applicant are:
1. Did the Board
ignore evidence led by the applicant that was important, relevant and
contradictory to the Board’s disposition? ;
2. Did the Board
breach its duty of fairness by failing to advise the applicant that the best
interests of his child were part of the case to be met, depriving him of an
adequate opportunity to respond? ; and
3. Did the Board fail
to provide adequate reasons for its decision?
Standard
of Review
[7]
The
Court will review the Board’s findings of fact on a patently unreasonable
standard. The question of procedural fairness is one the Court must decide as a
matter of law on a correctness standard. See Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539 at paragraph 100. Accordingly, the Court will review the first issue
on a standard of patent unreasonableness, and will review the remaining issues
on a correctness standard.
Relevant
Legislation
[8]
The
legislation relevant to this case is:
1. the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA); and
2. the Immigration Act, R.S.C. 1985, c. I-2 (repealed
by S.C. 2001, c. 27, s. 274).
The relevant
excerpts of these statutes are reproduced following these reasons at Appendix
“A”.
Analysis
[9]
Before
the Court considers the three issues raised by the applicant, this analysis will
set out the legal nature of a review by the Appeal Division of the terms of a
stay of execution of a deportation order pursuant to subsections 74(2) and (3)
of the former Immigration Act.
[10]
Whereas the IAD is
required to consider “all circumstances” in the case of an appeal under
subsection 70(1) of the Immigration Act from a removal order, Parliament
did not reproduce this language in subsections 74 (2) and (3), under which
authority the IAD may cancel a stay of removal and allow or dismiss an appeal
commenced under subsection 70(1). Accordingly, the question is what factors must
the IAD consider in reviewing an appeal under subsections 74(2) and (3), and
did the IAD in this case consider the factors relevant to the applicant?
The Court raises this question ex proprio motu (of its own initiative).
(a) Appeals
under subsection 70(1) of the Immigration Act
[11]
The Supreme Court of
Canada in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 held that on an appeal
to the IAD under subsection 70(1) of the Immigration Act from a removal
order:
(i)
the onus lies on the individual facing removal
to establish the case for him or her to remain in Canada;
(ii)
Parliament intended the IAD to have a broad
discretion to allow permanent residents facing removal to remain in Canada if it would be equitable to do so;
(iii)
the IAD is entitled to consider potential
foreign hardship when exercising its discretionary jurisdiction under paragraph
70(1)(b), provided that the likely country of removal has been established by
the individual being removed on a balance of probabilities; and
(iv)
the factors set out by the IAD in Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 (Q.L.) remain
the proper ones to consider during an appeal under s. 70(1)(b).
These principles were set out by Iacobucci J., writing for the Supreme
Court in Chieu at paragraphs 57, 66, and 90-91:
¶57 Second,
in appeals under the I.A.D.'s discretionary jurisdiction, the onus has always
been on the individual facing removal to establish why he or she should be
allowed to remain in Canada.
If the onus is not met, the default position is removal. Non-citizens do not
have a right to enter or remain in Canada: Chiarelli, supra, at p. 733, per Sopinka J. See also Singh
v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 189,
per Wilson J.; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R.
779, at p. 834, per La Forest J.; and Dehghani v. Canada (Minister of Employment and
Immigration), [1993] 1 S.C.R. 1053, at p. 1070. In
general, immigration is a privilege not a right, although refugees are
protected by the guarantees provided by the 1951 Convention Relating to the
Status of Refugees, Can. T.S. 1969 No. 6, entered into force April 22, 1954,
entered into force for Canada September 2, 1969 (the "1951 Geneva
Convention"), and the Protocol relating to the Status of Refugees, 606
U.N.T.S. 267, entered into force October 4, 1967, entered into force in Canada
June 4, 1969. As Martland J. stated for this Court in Prata v. Minister of
Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order
"establishes that, in the absence of some special privilege existing, [an
individual subject to a lawful removal order] has no right whatever to remain
in Canada. [An individual appealing a lawful removal order] does not,
therefore, attempt to assert a right, but, rather, attempts to obtain a
discretionary privilege".
[…]
¶66
Parliament intended the I.A.D. to have a broad discretion to allow permanent
residents facing removal to remain in Canada if it would be equitable to do so. This is apparent from the
open-ended wording of s. 70(1)(b), which does not enumerate any specific
factors to be considered by the I.A.D. when exercising its discretion under
this provision. The ability to quash or stay removal orders based on
ameliorating or compassionate factors was granted to the I.A.D. partially as a
result of the removal of the domicile provisions from the Act in 1977. The
object of s. 70(1)(b) is to give the I.A.D. the discretion to determine whether
a permanent resident should be removed from Canada. This is, admittedly, an unusual provision in that it gives the
I.A.D. considerable discretionary power in dealing with the removal of
permanent residents. But granting this discretionary power was a decision of
Parliament. If Parliament is now concerned that such a broad grant of
administrative discretion has been made, it is open to Parliament to amend the
legislation.
[…]
¶90 For
these reasons, the I.A.D. is entitled to consider potential foreign hardship
when exercising its discretionary jurisdiction under s. 70(1)(b) of the Act,
provided that the likely country of removal has been established by the
individual being removed on a balance of probabilities. The Minister should
facilitate the determination of the likely country of removal before the I.A.D.
whenever possible, as this improves the efficient functioning of the Act. The
factors set out in Ribic, supra, remain the proper ones for the I.A.D.
to consider during an appeal under s. 70(1)(b). On such an appeal, the onus is
on the individual facing removal to establish exceptional reasons as to why
they should be allowed to remain in Canada. As the I.A.B. stated in Grewal v. Canada (Minister of
Employment and Immigration), [1989] I.A.D.D. No. 22 (QL), the making of
such a discretionary decision involves "the exercising of a special or
extraordinary power which must be applied objectively, dispassionately and in a
bona fide manner after carefully considering relevant factors" (p.
2).
¶91 In the
instant case, the I.A.D. did not determine whether the appellant had
established a likely country of removal. The appeal is therefore allowed with
costs. […]
(b) Review of appeals under
subsections 74(2) and (3) of the Immigration Act
[12]
While the Supreme Court
in Chieu, above, did not state which factors the IAD must consider when
vacating a stay of removal under subsections 74(2) and (3) of the Immigration
Act, the jurisprudence from this Court establishes that the IAD must still
consider “all the circumstances” of the individual facing removal. See Martin
v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 183
(T.D.) at paragraph 18 per MacKay J.; Burgess v. Canada (Minister of Citizenship and Immigration) (1998), 82 A.C.W.S. (3d) 756 (F.C.T.D.) at
paragraph 17 per Nadon J.; and more recently Beaumont v. Canada (Minister of Citizenship and Immigration), (2002) 25 Imm. L.R. (3d) 189 (F.C.T.D.) at
paragraph 23 per Snider J. In Beaumont, my
colleague Madam Justice Judith Snider stated at paragraphs 22-23:
¶22 Both
parties agreed that the IAD, in deciding whether to vacate a stay, should
consider all of the circumstances of the case. As accepted by Nadon, J. in the
Burgess decision:
The Appeal Division,
correctly in my view, at pages 7 and 8 of its reasons, sets out the question
for determination:
...What is
before the panel is whether it should exercise its discretion under paragraph
74(3)(b) of the Act. All of the circumstances of the case includes the
respondent's initial situation, his new convictions and his situation since his
stay.
¶23 The
question is whether the IAD considered all of the circumstances. […]
[13]
In Burgess,
above, Mr. Justice Nadon held that “all of the circumstances” include the
factors identified by the IAD panel in the Ribic decision, above. In Burgess,
Nadon J. set out the Ribic factors at paragraph 16:
¶16 […]
(1) the seriousness of the offence leading to the deportation
order;
(2) the possibility of rehabilitation;
(3) the length of time spent in Canada and the degree to which the appellant is established here;
(4) the family in Canada and the dislocation to the family that deportation would cause;
(5) the support available to the appellant, not only within the
family but also within the community;
(6) the degree of hardship that would be caused to the appellant
by his return to his country of nationality.
(c) The IAD decision under review in
the case at bar
[14]
In the case at bar, the
IAD did not have regard to all relevant Ribic factors raised in the
applicant’s case. The IAD did not consider the entirety of the applicant’s
evidence supporting his case to remain in Canada, which include potential
foreign hardship which he may endure if removed from Canada to Georgia, his country of nationality.
[15]
The question in the
case at bar is whether the IAD was obliged to consider the applicant’s
potential foreign hardship, a Ribic factor, in the absence the applicant
giving full evidence and making submissions on this issue. The applicant
testified before the IAD that he would endure hardship if removed to Georgia. The IAD had a duty to address potential foreign
hardship as a relevant factor in its reasons for decision. Once again, the
Court has raised this issue ex proprio motu, and invited the parties to
make submissions on the issue of “foreign hardship”.
[16]
The applicant testified
at the hearing as follows (page 233 and following in the Certified Tribunal
Record):
COUNSEL: Let’s say, let’s say you
get deported tomorrow. What happens to them?
APPELLANT: What happens to them? What
happens to me?
COUNSEL: What I’m asking is what
happens to them if you’re not here?
APPELLANT: They will die probably. Die
and that’s it. Everything we ever worked for, everything my parents ever
created, everything will go to nothing. Everything will be just a big loss, a
big waste.
COUNSEL: Okay. Look, I understand
that. But I’m more interested in the more immediate aftermath. Okay? What I
want to know is, you get deported, what happens to provisions of the daily care
of your mother and grandmother?
APPELLANT: There’s going to be no care.
They’re probably going to end up dying and that’s it. There’s going to be
nothing there. And to be quite honest, you know, you guys decide to deport me,
why don’t you just – you know, I don’t even want to live. I don’t really want
to think about that. You know ---
COUNSEL: Why not?
APPELLANT: If I have to be deported,
there is no use of -- there is no other country I know. This is the only thing,
I lived here, I grew up, this is the people I love and the country I know. And
if I have to be deported, then I don’t even think I want to live, to be honest.
There is no, no – there is nothing there no more for me.
In the Court’s reading of the transcript
and understanding of the applicant, the applicant may have no connections to
Georgia, no relatives, no friends, and no means of supporting himself. This
should have been explored at the hearing. The degree of hardship that would be
caused to the applicant by his deportation to Georgia is one of
the six factors which the Appeal Division is obliged to consider. It was raised
by the applicant in his evidence, but not presented as a factor by the
applicant’s counsel. I do not think that this excuses the Appeal Division from
considering this factor in its reasons, but I will certify a question on this
subject.
[17]
Another
Ribic factor which the Appeal Division did not adequately consider in
its reasons is “the family in Canada and the dislocation to the family that
deportation would cause”. There was evidence from both the applicant and the
applicant’s mother that the deportation would cause the death of his elderly
and terminally ill mother, elderly and sick father, and sick and dying 97 year-old
grandmother. The Appeal Division stated at paragraph 33 of its reasons that
moving the applicant from Canada would:
… wreak some emotional hardship on him
and his mother, these considerations do not outweigh the many negative factors
that are present.
With respect, the panel has understated this
effect. These people are completely dependant on the applicant for grocery
shopping, housecleaning and extensive care. He is the only able-bodied person
in the condominium. The evidence is that there is so much work in this home
with these three elderly and sick people that no employed homecare provider would
endure if their son, the applicant, did not perform most of the work in the
home, in addition to his employment outside the home.
[18]
Another
Ribic factor which must be considered by the Appeal Division is the
“length of time spent in Canada and the degree to which the applicant is
established here”. The IAD held at paragraph 18:
… the panel finds the appellant to have
some degree of establishment in Canada.
With respect, the applicant has more than
“some degree of establishment in Canada”. Canada is the only
country where the applicant is established. Accordingly, he has much more than “some
degree of establishment in Canada”. He has not established himself anywhere
else.
[19]
The question of whether
the IAD considered all relevant factors in its decision to cancel the stay is a
question of law reviewable on a correctness standard. (See the decision of
Madam Justice Judith Snider in Beaumont v. Canada (Minister of Citizenship and Immigration), (2002) 25 Imm. L.R. (3d) 189 (F.C.T.D.),
2002 FCT 1261 at paragraphs 19 to 21.)
[20]
Since
the Court has found that the IAD did not properly consider all relevant factors
in its decision to cancel the stay, the Court will allow the judicial review
and remit the matter to the IAD to be re-determined by a different panel. In
weighing these factors, the IAD may, or may not, decide that these factors
outweigh the factors which favour the cancellation of the stay.
[21]
In
the alternative, I will review the three issues raised by the applicant at the
hearing. These issues are illustrative of the fact that this hearing focussed on
the circumstances with respect to the breach of two of the conditions of the
2001 stay of the execution of the deportation order. The IAD, and the parties,
did not appreciate that all the circumstances regarding the applicant were
factors which the Appeal Division must consider in this review.
Issue No. 1: Did the Board ignore
evidence led by the applicant that was important, relevant and contradictory to
the Board’s disposition?
[22]
The
applicant submits that the Board ignored the applicant’s oral evidence in
respect of:
(a) the condition that
he make reasonable efforts to maintain full-time employment during the stay of
removal period; and
(b) the reason for his
custodial sentence on conviction of assaulting his mother.
The respondent submits, and the Court
agrees, that the Board considered and weighed the applicant’s evidence before
reasonably concluding that the applicant breached the conditions of his stay of
removal.
[23]
A
tribunal is assumed to have weighed and considered all the evidence presented
to it unless the contrary is shown (Florea v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 598 (C.A.) at paragraph 1), and need
not mention each evidentiary minutiae in its reasons, provided it considers the
totality of evidence (Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). However, a
decision-maker must refer to and distinguish important, relevant and
contradictory evidence, or else the Court will assume such evidence was
ignored. See Bains v. Canada (Minister of Employment
and Immigration) (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D)) and Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) at paragraph
17.
(a)
Condition
of reasonable efforts to maintain full-time employment
[24]
The
Board did not ignore the applicant’s evidence that he believed his household
duties caring for his parents and grandmother met the condition of making a
reasonable effort to maintain full-time employment. At paragraphs 12 to 25 of
its reasons, the Board stated:
¶12 […] The appellant provided
extensive testimony about his role in the family, which he said included
virtually providing total care for his grandmother who is physically
incapacitated and upkeep of the family’s home.
[…]
¶ 16 In coming to this decision the
panel considered a number of factors that included, but were not limited to,
the degree of establishment of the appellant in Canada; the appellant’s
rehabilitation and attitude; the extent of his non-compliance with the terms
and conditions of the IAD stay; and the danger the appellant poses to the
Canadian public.
[…]
¶ 19 As stated earlier, there was
considerable testimony from both the appellant and his mother on his role in
the household. The appellant testified that he assists in lifting his
grandmother, grooms her, prepares her meals and feeds her. He also does her
laundry, which he does twice a day. He takes care of his father and does
household chores. He combs his mother’s hair and does other chores for her
because in addition to being terminally ill, his mother has some paralysis on
her left side and has difficulty lifting her left arm.
¶20 The appellant’s mother
confirmed his testimony. She also testified to the difficulties the family has
experienced [sic] obtaining and retaining nursing help. She claimed that
it was for those reasons that the appellant’s presence in Canada and in the
home is vital.
¶ 21 While the panel accepts that the
testimony presented shows the appellant is instrumental in the care of his
grandmother and of his parents, in balancing these against other relevant
factors, the [panel] found that they do not outweigh the other relevant
factors, in particular, the degree of remorse and rehabilitation of the
appellant.
[…]
¶ 22 […] The appellant’s response to
respondent’s counsel’s question as to why he did not find work outside the home
was that he chose to stay home and take care of his parents and grandmother.
¶ 23 In response to his counsel, he
was more forceful. He stated that he decided on his own not to work. When his
counsel asked him about the term of his stay, the appellant stated flatly that
he could not comply with the order, staying at home was what he was going to do
and […] that no one could force to do anything he did not want to. He flatly
stated he could not be forced to work.
[25]
After
reviewing the record, I conclude that the Board did not misconstrue the
evidence by mistaking the nature of the condition imposed to be maintaining
employment instead of making reasonable efforts to seek and maintain
employment. The Board stated at paragraph 24:
¶ 24 Given that
maintaining full-time employment was one of the conditions of his stay, the
panel finds the appellant’s responses are clearly at odds with this condition
of his stay. […]
While the Board misstated the condition at
paragraph 24 of its reasons, on a fair reading of the transcript of hearing it
is clear to the Court that the Board knew that the condition in fact required
the applicant to make reasonable efforts to seek and maintain full-time
employment. It was reasonably open to the Board to conclude that the
applicant’s conduct and oral answers fell short of reasonable efforts and so
breached the stay condition. The Board relied on evidence that the applicant’s
mother could have, and intends to, seek help outside the family to assist her
in her daily activities so that the applicant could become employed full-time,
which supports a line of reasoning that the applicant was available to work
outside the home during the stay of removal period, but chose not to. As noted
above, the applicant would still be required to assist in his family’s home
care.
(b)
Condition
of maintaining the peace
[26]
The
applicant admitted at his appeal hearing that he breached his condition to keep
the peace and be of good behaviour. Nevertheless, the Board weighed all the evidence
and found that the applicant breached the condition because:
i. he was convicted
of assault in June 2003 for pushing his mother; and
ii. he was convicted
in the intervening period under several provisions of the Highway Traffic
Act, under the Criminal Code for failing to attend Court, and failing
to tender an appropriate fare under By-Law #1 of the Toronto Transit
Commission.
[27]
The
Board did not ignore the applicant’s evidence that his assault on his mother
was “gentle”, or misconstrue his evidence that the prison term was the result
of his lengthy criminal record rather than offence-specific aggravating
factors. At paragraph 25 of its reasons, the panel stated:
¶ 25 With respect of the conviction for
assault on his mother, the panel finds that both the appellant and his mother
attempted to minimise the circumstances of the assault. In her testimony, the
appellant’s mother claimed she struck him and he then moved her, gently, aside.
However, the fact is that the appellant was convicted of an assault upon her
for which he served a custodial sentence of 14 days taking into account the
three days of pre-sentence custody. In light of the appellant’s conviction and
sentence, the panel finds that there is valid reason to doubt and reject the
testimony of the appellant and his mother, in this regard.
It was reasonably open to the Board to
decide that the assault conviction during the stay of removal period breached
the stay condition.
[28]
The
panel did not ignore the applicant’s evidence that his mother consented to his
return home, and that his parole terms were amended to allow him to return to
his parents’ residence. There was no documentary evidence before the Board that
the Ontario Court of Justice varied its probation order. The onus to produce
was on the applicant, and the Board reasonably concluded that a potential
breach was probative of disrespect for Canadian authorities.
Issue No. 2: Did the Board breach its
duty of fairness by failing to advise the applicant that the best interests of
his child were part of the case to be met, depriving him of an adequate
opportunity to respond?
[29]
The
best interest of the applicant’s child was not a central issue to the Board’s
decision. In its reasons which spanned 9 pages and 35 paragraphs, the Board
turned to the interests of the applicant’s child only at paragraph 34:
¶ 34 The panel notes that no evidence
was led with respect to the appellant’s child and his role in that child’s
life. The panel infers that the appellant is not involved with him or her.
Therefore, the panel finds that the best interests of the appellant’s child
would not be unduly affected by the appellant’s departure.
[30]
The
applicant submits that the Board breached its duty of fairness by not advising
him that an adverse inference would be made unless he adduced more evidence
relative to his child’s best interests. The applicant’s affidavit evidence is
that he told the Board that he had a 6 year-old child, Marissa. The applicant
states that he was asked no further questions about his child, which is why he
said nothing further. In the applicant’s view, he was denied an adequate opportunity
to respond to the case against him. The Court does not agree.
[31]
The
Board concluded that the child’s best interests would not be unduly affected by
the applicant’s removal from Canada. The applicant failed to tender evidence
in respect of an issue he now states would be favourable to his appeal before
the Board. The onus lies on the applicant to provide sufficient evidence in
support of his appeal, and the Board has no duty to elicit evidence from the
applicant which would favour his appeal. Indeed, the Board cannot be in a
position to do so when it does not know the applicant’s evidence ahead of time.
If the best interests of the applicant’s child do favour his appeal, he should
have tendered such evidence at his hearing. The Board cannot be expected to
give notice of an issue which it had no idea would be relevant.
[32]
I
therefore turn to the applicant’s actual evidence in respect of his child,
which is at page 248 of the Certified Tribunal Record:
MINISTER’S COUNSEL: You have no children,
right?
APPELLANT: I have a child.
MINISTER’S COUNSEL: Do you?
APPELLANT: Yes.
MINISTER’S COUNSEL: I see.
APPELLANT: Of course I do.
MINISTER’S COUNSEL: With your girlfriend?
APPELLANT: Yeah.
PRESIDING MEMBER: Former girlfriend, not
Geraldine Roper.
APPELLANT: Pardon me?
MINISTER’S COUNSEL: Pardon?
PRESIDING MEMBER: A former girlfriend.
APPELLANT: Yes. I understand your
concern, sir, and I totally agree with you. I made a mistake and I’ll be paying
for it.
At the hearing, the applicant’s counsel
submitted to the Board, at page 275 of the Tribunal Record, that the
applicant’s attachment in Canada was to his family, spelled out to be his
parents and grandmother:
COUNSEL: […] There is no evidence that, in my submission,
that – well, let me put it to you this way. The appellant’s attachment is
primarily to his family, it’s primarily to his mother, his father, his
grandmother. And they are all here. And he has been, in my submission,
supportive of them. The appellant is well established in Canada.
[33]
Based
on the applicant’s description of his child as a “mistake” that he will be
“paying for”, the fact that he does not include his daughter when speaking of his
family, and the fact that the applicant led no evidence or submission as to the
relevance of his child to his establishment in Canada, it was reasonable for
the Board to infer that the appellant is not involved with the child and that
the best interests of the child would not unduly be affected by the applicant’s
departure.
Issue
No. 3: Did
the Board fail to provide adequate reasons for its decision?
[34]
The
applicant submits that the Board failed to provide sufficient reasons for its
decision.
[35]
The
standard which describes sufficient reasons in a given case was articulated by Mr.
Justice Sexton for the Federal Court of Appeal in Via Rail Canada Inc. v.
Canada (National Transportation Agency), [2001] 2 F.C. 25 (C.A.) at
paragraphs 21 and 22:
¶ 21 The duty to give reasons is
only fulfilled if the reasons provided are adequate. What constitutes adequate
reasons is a matter to be determined in light of the particular circumstances
of each case. However, as a general rule, adequate reasons are those that
serve the functions for which the duty to provide them was imposed. In the
words of my learned colleague Evans J.A., "[a]ny attempt to formulate a
standard of adequacy that must be met before a tribunal can be said to have
discharged its duty to give reasons must ultimately reflect the purposes served
by a duty to give reasons."
¶ 22 The obligation to provide
adequate reasons is not satisfied by merely reciting the submissions and
evidence of the parties and stating a conclusion. Rather, the decision-maker
must set out its findings of fact and the principal evidence upon which those
findings were based. The reasons must address the major points in issue. The
reasoning process followed by the decision-maker must be set out and must
reflect consideration of the main relevant factors.
(Footnotes omitted.)
[36]
In
this case, the Board gave adequate reasons which set out the basis on which it
concluded the following major issues relevant to its decision:
1. the applicant’s
rehabilitation and attitude;
2. the extent of the
applicant’s non-compliance with the two conditions of the stay of removal which
were allegedly breached; and
3.
the danger
the applicant poses to the Canadian public.
For each issue, the reasons show that the
Board:
i. considered the
parties’ evidence and submissions;
ii. stated how it made
findings of fact and stated the principal evidence it relied on; and
iii. explained how it
arrived at its conclusion, leaving the applicant without uncertainty as to why
the Board concluded as it did.
However, as discussed above, there are three
relevant Ribic factors which the Appeal Division either did not
sufficiently consider, or if it did consider these factors, it failed to
provide adequate reasons for its decision with respect to these factors.
Certified question
[37]
After
the hearing, the Court issued a Direction to the parties seeking their
submissions with respect to whether the Appeal Division had a duty to consider
the issue of foreign hardship to the applicant, an issue not canvassed by the
parties at the hearing or at the IAD, except for some limited evidence by the
applicant on the issue. Counsel for the respondent submitted that the Appeal
Division “had a duty to consider the hardship removal would cause to the
applicant. The Minister of Citizenship and Immigration takes this to be not in
dispute and not a serious question of general importance”. The Court does not
agree. If the Appeal Division had a duty to consider the hardship removal would
cause to the applicant, then the question is whether this factor should have
been considered by the Appeal Division when the applicant did not raise this
issue in its closing submissions, and only presented limited evidence on the
subject.
[38]
The
Court considers that this case has raised a serious question of general
importance which ought to be certified for an appeal, namely:
“Is the Appeal Division
obliged to consider all of the relevant factors raised by the applicant’s
evidence when the applicant has not presented these factors in his submissions
as a basis for staying the deportation order?”
Conclusion
[39]
The
IAD did not properly consider all of the relevant Ribic factors in its
decision to cancel the stay. Since this is a question of law reviewable on a correctness
standard, this application for judicial review is allowed, the IAD decision
is set aside, and the matter remitted to the IAD for re-determination by a
differently constituted panel.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. The application for judicial review is allowed,
the decision of the IAD dated November 10, 2005 is set aside and the matter
remitted to the IAD for re-determination by a differently constituted panel;
and
2. The
following serious question of general importance is certified for an appeal:
“Is the Immigration Appeal Division of
the Immigration and Refugee Board obliged to consider all of the relevant
factors raised by the applicant’s evidence when the applicant has not presented
these factors in his submissions as a basis for staying the deportation order?”
“Michael
A. Kelen”
APPENDIX “A”
1. Immigration
and Refugee Protection Act, S.C. 2001, c. 27
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[…]
Removal order stayed
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.
Effect
(2) Where the Immigration Appeal
Division stays the removal order
(a) it shall impose any
condition that is prescribed and may impose any condition that it considers
necessary;
(b) all conditions imposed
by the Immigration Division are cancelled;
(c) it may vary or cancel
any non-prescribed condition imposed under paragraph (a); and
(d) it may cancel the stay,
on application or on its own initiative.
Reconsideration
(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.
Termination and cancellation
(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 or 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.
[…]
PART 5
TRANSITIONAL PROVISIONS, CONSEQUENTIAL
AND RELATED AMENDMENTS, COORDINATING AMENDMENTS, REPEALS AND COMING INTO
FORCE
[…]
Immigration Appeal Division
192. If a notice of appeal has been filed
with the Immigration Appeal Division immediately before the coming into force
of this section, the appeal shall be continued under the former Act by the
Immigration Appeal Division of the Board.
[…]
Stays
197. Despite section 192, if an appellant
who has been granted a stay under the former Act breaches a condition of the
stay, the appellant shall be subject to the provisions of section 64 and
subsection 68(4) of this Act.
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[…]
Sursis
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.
Effet
(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.
Suivi
(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.
Classement et annulation
(4) Le sursis de la mesure de renvoi
pour interdiction de territoire pour grande criminalité ou criminalité 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.
[…]
PARTIE 5
DISPOSITIONS TRANSITOIRES, MODIFICATIONS
CORRÉLATIVES, DISPOSITION DE COORDINATION, ABROGATIONS ET ENTRÉE EN VIGUEUR
[…]
Anciennes règles, nouvelles sections
192. S’il y a eu dépôt d’une demande
d’appel à la Section d’appel de l’immigration, à l’entrée en vigueur du
présent article, l’appel est continué sous le régime de l’ancienne loi, par
la Section d’appel de l’immigration de la Commission.
[…]
Sursis
197. Malgré l’article 192, l’intéressé qui
fait l’objet d’un sursis au titre de l’ancienne loi et qui n’a pas respecté
les conditions du sursis, est assujetti à la restriction du droit d’appel
prévue par l’article 64 de la présente loi, le paragraphe 68(4) lui étant par
ailleurs applicable.
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2. Immigration
Act, R.S.C. 1985, c. I-2 (repealed by S.C. 2001, c. 27, s.
274)
|
Appeals by permanent residents and persons
in possession of returning resident permits
70. (1) Subject to subsections (4) and
(5), where a removal order or conditional removal order is made against a
permanent resident or against a person lawfully in possession of a valid returning
resident permit issued to that person pursuant to the regulations, that
person may appeal to the Appeal Division on either or both of the following
grounds, namely,
(a) on any ground of appeal
that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that,
having regard to all the circumstances of the case, the person should not be
removed from Canada.
[…]
Disposition of appeal
73. (1) The Appeal Division may dispose of
an appeal made pursuant to section 70
(a) by allowing it;
(b) by dismissing it;
(c) in the case of an
appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a removal
order, by directing that execution of the order be stayed; or
(d) in the case of an
appeal made pursuant to paragraph 70(1)(b) or 70(3)(b) respecting a
conditional removal order, by directing that execution of the order on its
becoming effective be stayed.
[…]
Where appeal allowed
74. (1) Where the Appeal Division allows
an appeal made pursuant to section 70, it shall quash the removal order or
conditional removal order that was made against the appellant and may
(a) make any other removal
order or conditional removal order that should have been made; or
(b) in the case of an
appellant other than a permanent resident, direct that the appellant be
examined as a person seeking admission at a port of entry.
Terms of stay of execution
(2) Where the Appeal Division disposes
of an appeal by directing that execution of a removal order or conditional
removal order be stayed, the person concerned shall be allowed to come into
or remain in Canada under such terms and conditions as the Appeal Division
may determine and the Appeal Division shall review the case from time to time
as it considers necessary or advisable.
Appeal Division may amend terms or cancel
direction
(3) Where the Appeal Division has
disposed of an appeal by directing that execution of a removal order or
conditional removal order be stayed, the Appeal Division may, at any time,
(a) amend any terms and
conditions imposed under subsection (2) or impose new terms and conditions;
or
(b) cancel its direction
staying the execution of the order and
(i) dismiss the appeal and
direct that the order be executed as soon as reasonably practicable, or
(ii) allow the appeal and
take any other action that it might have taken pursuant to subsection (1)
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Appel des résidents permanents et des
titulaires de permis de retour
70. (1) Sous réserve des paragraphes (4)
et (5), les résidents permanents et les titulaires de permis de retour en
cours de validité et conformes aux règlements peuvent faire appel devant la
section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant
les moyens suivants :
a) question de droit, de
fait ou mixte;
b) le fait que, eu égard aux
circonstances particulières de l'espèce, ils ne devraient pas
être renvoyés du Canada.
[…]
Décision en matière d'appel
73. (1) Ayant à statuer sur un appel
interjeté dans le cadre de l'article 70, la section
d'appel peut :
a) soit y faire droit;
b) soit le rejeter;
c) soit, s'il s'agit d'un
appel fondé sur les alinéas 70(1)b) ou 70(3)b) et relatif à une mesure de
renvoi, ordonner de surseoir à l'exécution de celle-ci;
d) soit, s'il s'agit d'un
appel fondé sur les alinéas 70(1)b) ou 70(3)b) et relatif à une mesure de
renvoi conditionnel, ordonner de surseoir à l'exécution de celle-ci au moment
où elle deviendra exécutoire.
[…]
Cas où il est fait droit à l'appel
74. (1) Si elle fait droit à un appel
interjeté dans le cadre de l'article 70, la section d'appel annule la mesure
de renvoi ou de renvoi conditionnel et peut :
a) soit lui substituer celle
qui aurait dû être prise;
b) soit ordonner, sauf s'il
s'agit d'un résident permanent, que l'appelant fasse l'objet d'un
interrogatoire comme s'il demandait l'admission à un point d'entrée.
Conditions dont est assorti le sursis
d'exécution
(2) En cas de sursis d'exécution de la
mesure de renvoi ou de renvoi conditionnel, l'appelant est autorisé à entrer
ou à demeurer au Canada aux éventuelles conditions fixées par la section
d'appel. Celle-ci réexamine le cas en tant que de besoin.
Modification des conditions et
annulation de décision
(3) Dans le cas visé au paragraphe (2),
la section d'appel peut, à tout moment :
a) modifier les conditions
imposées ou en imposer de nouvelles;
b) annuler son ordre de
surseoir à l'exécution de la mesure, et parallèlement :
(i) soit rejeter l'appel et
ordonner l'exécution dès que les circonstances le permettent,
(ii) soit procéder conformément
au paragraphe (1).
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