Date: 20051027
Docket: IMM-2828-05
Citation: 2005 FC 1463
Vancouver, British Columbia, Thursday, the 27th day of October, 2005
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
SUKHPAL SINGH SAHOTA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for judicial review pursuant to s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of the decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board dated April 11, 2005, concerning Sukhpal Singh Sahota (the "Applicant").
DECISION UNDER REVIEW
[2] The Board reviewed an August 31, 2001 decision to grant the Applicant a conditional three-year stay of a removal order made March 21, 2001. It decided on April 11, 2005, to cancel its stay of the removal order.
[3] The Applicant received 15 months' imprisonment in 2000 after being convicted of aggravated assault for stabbing his mother three times. The incident also led to a conviction of aggravated assault of a police officer.
[4] As a term of the stay order, the Applicant was required to abstain from the consumption of alcohol. Although the Applicant testified that he was remorseful for his actions, the Board noted that the Applicant had not abstained from alcohol and that evidence of treatment only dates to June 2003. The Board found that the Applicant had not abided by this condition and found the Applicant's reasons for breaching it were unsatisfactory.
[5] The Applicant had been convicted of breaching his probation order for failing to abstain from alcohol. He has also been convicted of theft or attempted theft. The Board found that the Applicant's efforts to rehabilitate were unsatisfactory given the time and opportunity that the Applicant was afforded.
[6] The Board noted that the Applicant is not well established in Canada. Although he has been employed, he has not worked on a long-term or ongoing basis with any one employer.
[7] Letters submitted on behalf of the Applicant demonstrate that the Applicant has some support in Canada; however, the Board found that at least two of the three individuals who wrote letters in support of the Applicant were not advised by the Applicant of his continued alcohol abuse.
[8] The Board found that there will be no dislocation to family members if the Applicant is removed from Canada, with exception to the Applicant's mother.
[9] The Board noted that the Applicant's mother is either unaware of or unwilling to admit that her son has alcohol problems. The Board found that the mother has limited control, if any, over the Applicant's behaviour and would be unable to assist the Applicant in fulfilling terms and conditions if the stay were extended.
[10] The Board also found that the Applicant has not supported his mother financially. The Board noted that removal would lead to some hardship for the Applicant's mother, but that it would not amount to undue hardship. The Board also held that although the Applicant would face some hardship if removed to India, given that he has relatives there and that he has developed English skills and other skills that may assist him in obtaining employment, it would not be undue hardship to remove the Applicant to India.
[11] The Board held that, when the Applicant's actions since the stay are considered, it could not be satisfied that the Applicant would be willing or able to abide by terms and conditions and therefore the continuation of the stay was inappropriate.
APPLICANT'S SUBMISSIONS
1. The Applicant's Mother
[12] The Applicant notes that natural justice and procedural fairness require a panel to consider a claimant's arguments (Hartley v. Canada (M.C.I.), [2000] F.C.J. No. 631 (F.C.T.D.). The Applicant submits that the IAD's decision breached natural justice and is patently unreasonable for failing to consider the evidence and issues raised concerning the harm the Applicant's mother will suffer if the Applicant is deported.
[13] The Applicant submits that the Board trivialized the needs of the Applicant's mother to financial ones. The Applicant submits that the IAD erred in not considering the Applicant's mother's emotional need to have her son with her in her last years. The evidence at the hearing was that due to her age, financial status and loss of contact with family members in India, the Applicant's mother will likely be unable to travel to India. If the Applicant is deported, his mother will likely be unable to see him again.
[14] The Applicant further submits that the IAD erred in failing to consider the mother's desire to have the Applicant remain in Canada. It is submitted that the Applicant's mother's position is particularly relevant since she was the primary victim of the Applicant's criminal behaviour. Counsel notes that the Applicant's mother has chosen to live with the Applicant and not with the Applicant's sister, but that this key fact goes unmentioned in the reasons. If the Applicant is deported, his mother will likely have to move into a house where she does not feel comfortable.
[15] The Applicant argues that the IAD implies that the Applicant's mother has two other sons who can take care of her. The Applicant submits that the evidence indicates that the Applicant's mother does not know where her two other sons are, and has not had contact with them for a long time.
2. Additional errors allegedly made by the IAD
[16] The Applicant submits that the IAD made several factual errors. First, the Applicant points out that the second assault conviction was not for aggravated assault but just for assault, which is a less serious offence.
[17] Second, the Applicant submits that the IAD erred in ignoring evidence that the Applicant's motor vehicle accident and subsequent five day coma in 2003 had a negative effect on the Applicant's ability to comply with the conditions of the stay. The Applicant submits that the head injury affected his ability to report to Immigration Canada and his ability to keep employment. The Applicant states that if the IAD did not believe that the Applicant's head injury affected his abilities, then it should have at least mentioned this in its reasons.
[18] The Applicant also notes that the IAD's finding that the Applicant's alcohol treatment did not begin until June 2003 is from a reference letter where the evidence shows that the Applicant had been an intermittent client with an addiction centre since February 1999.
[19] Lastly, the Applicant contests the IAD's finding that the Applicant's employment letter from an auto body shop was misleading.
RESPONDENT'S SUBMISSIONS
[20] The Respondent submits that there are no grounds to revisit the IAD decision. The Respondent notes that Mr. Sahota's original request for a stay was referred to as "a very borderline case", but that the Applicant "should be given an opportunity to demonstrate that he is rehabilitated and that his abstinence from alcohol will be lasting" (IAD Decision at paras. 1-3). The Respondent reminds the Court that Mr. Sahota conceded that he breached the terms and conditions of his stay. The Respondent submits that it was reasonably open to the IAD to have exercised its discretion to find that the humanitarian and compassionate considerations in this case did not warrant a further stay.
[21] The Respondent submits that the Court should not interfere with the weight the IAD gave to the humanitarian and compassionate considerations and evidence before it (Legault v. Canada (M.C.I.), [2002) 4 F.C. 358; 2005 SCC 40">Mugesera v. Canada (M.C.I.), 2005 SCC 40 at para. 40). The Respondent also submits that where the IAD has exercised its discretion bone fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, the Court should not interfere ([1974] S.C.R. 875">Boulis v. Canada (MMI), [1974] S.C.R. 875; Canada (M.C.I.) v. Lao, 2001 FCT 1385 at paras. 19-20; Krishnan v. Canada (M.C.I.), 2005 FC 517 at para. 16).
[22] The Respondent maintains that the IAD decision was based on its findings of fact and that findings of fact are entitled to great deference. Where the judicial review challenges findings of fact, the Respondent urges that the Court ought not to interfere unless satisfied that the IAD based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the evidence before it (Federal Courts Act, R.S.C. 1985, c. F-7, s.18.1(4)(d); 2005 SCC 40">Mugesera v. Canada (M.C.I.), supra at para. 38).
1. The Applicant's Mother
[23] The Respondent submits that the IAD's decision was reasonably open to it. With regards to the Applicant's mother, the Respondent notes that the evidence was that Mr. Sahota did not support his mother financially. Although the Applicant's mother was living with the Applicant at the time of the hearing, she lived with the Applicant's sister between 2001 and 2004. The evidence also reveals that the Applicant's sister regularly assists his mother in her shopping.
2. Additional errors allegedly made by the IAD
[24] The Respondent further submits that although the IAD erroneously referred to the Applicant's second conviction as being for aggravated assault rather than assaulting a peace officer, this mistake is immaterial. The difference in severity did not affect the IAD's decision, which focused on the Applicant's conduct since the stay.
[25] The Respondent also submits that the IAD's failure to refer to the Applicant's alleged head injury is not a basis for judicial review. An administrative hearing is presumed to have considered all of the evidence before it (Florea v. Canada (M.E.I.),[1993] F.C.J. No. 598 (F.C.A.). The Respondent submits that at the hearing, counsel only mentioned the alleged injury with respect to the Applicant's "inability to fully speak for himself", and not with respect to any factors that were central to the IAD's decision.
[26] The Respondent also contends that it was open to the IAD to find that the Applicant's treatment for alcohol abuse did not occur until June 2003. The Applicant testified at the hearing that he went to treatment in June 2003, and the Respondent submits that this indicates that the Applicant did not consider his status as an "intermittent" client of the addiction centre since 1999 as amounting to treatment (IAD Hearing Transcript, Applicant's Record at page 6 ("Transcript").
[27] The Respondent also submits that it was open to the IAD to find the employer's letter "misleading" as to the Applicant's employment status. Rather than being a part-time employee as alleged in the letter, the Respondent submits that the Applicant was a part-time employee and part-time unpaid trainee.
ANALYSIS
1. The Applicant's Mother
[28] I am satisfied that the rules of natural justice and procedural fairness have not been breached in this case. The record does not support the Applicant's submission that the Board reduced the mother's needs to strictly financial ones. The Board made a finding that the Applicant had not financially supported his mother for a considerable period of time (IAD Decision at para. 9). However, the IAD also noted that the Applicant has close ties to his mother (IAD Decision at para. 7), and that if removed, the Applicant will be dislocated from his mother (IAD Decision at para. 7). The Board recognized that the Applicant's mother would face hardship if her son is deported; it did not state that the mother would face "undue financial hardship".
[29] It seems clear from the decision read as a whole that the IAD had considered the mother's needs beyond mere financial ones, and considered that the Applicant's mother will suffer if the Applicant is deported. However, it was open to IAD to find as it did that the mother's hardship would not amount to undue hardship. It was open to the Board to suggest that the mother could be housed, supported financially, and otherwise assisted by her other children, since the record indicates that her other children had provided for her in this manner in the past. Although the mother's two other sons have not been in contact with their mother for some time, the IAD could still reasonably conclude that the mother would receive support from her children.
[30] The IAD did not err by failing to consider the mother's desire to have the Applicant remain in Canada. The IAD recognizes in its decision that the mother wishes to support her son. Nor was the IAD required to give the mother's testimony greater weight just because she had chosen to live with her son after being a victim of the Applicant's criminal behaviour. In fact, it was reasonable for the IAD to find that the mother would not be able to assist the Applicant in fulfilling terms and conditions if the stay was extended, a factor that supported the cancellation of the stay.
[31] I am satisfied that the IAD reached its conclusion in a manner that did not breach natural justice or procedural fairness.
2. Additional errors allegedly made by the IAD
[32] I agree with the submissions of the Respondent on the test as to the appropriate standard of review for factual errors made by the Board. The Court should not intervene on questions of fact, except if it considers that the IAD "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (Federal Court Act, s. 18.1(4)(d); 2005 SCC 40">Mugesera v. Canada (M.C.I.), supra at para. 38).
[33] The Respondent concedes that the second assault conviction was not an aggravated assault conviction. However, I agree with the Respondent that this factual error is minor and immaterial as the difference does not affect the IAD's overall analysis of the Applicant's conduct since the stay.
[34] The Applicant correctly notes that the IAD did not mention the alleged injuries arising from a motor vehicle accident and subsequent coma. This is somewhat surprising given that the hearing record reveals that there was a live debate between counsel as to whether the Applicant actually suffered any memory loss. The Applicant claimed at the hearing that he forgot to report to Immigration in April of 2004 (Transcript, at page 5). He claims that he was working, but that then he was injured and had to stay home (Transcript, at page 10). The Applicant claimed at the hearing that he could not report a criminal conviction to Immigration since his stay because of his memory loss (Transcript, at page 24). He claimed not to remember the circumstances for his attempted theft (Transcript, at page 24) and was not sure whether he was convicted of causing a disturbance (Transcript, at page 26). The Respondent submitted that the Applicant was offering "an obviously tried and true build-in excuse, that of selective memory" (Transcript, at page 51). I cannot help but agree with the Respondent's comments.
[35] But even if this failure of the IAD to comment on the issue of the Applicant's injuries could be taken to mean that the IAD did not consider the effect of the Applicant's injuries on his ability to comply with terms and conditions of a stay, the IAD would still have been able to reach the decision that it did. The IAD found that a continuation of the stay was not appropriate since it could not be satisfied that the Applicant would "be able or willing to abide" by terms and conditions (IAD Decision at para. 14).
[36] The IAD could also reasonably decide that the Applicant's status as an intermittent client of an addiction centre did not amount to alcohol treatment. The Applicant stated that his treatment began in June 2003. It was therefore open to the IAD to conclude that treatment only began in June 2003 despite the Applicant's prior intermittent visits to an addition centre.
[37] It was equally open to the IAD to find that the Applicant's employment letter from the auto body shop was misleading. The letter simply states that the Applicant was employed part-time with the auto body shop, and had been since March 2004. The letter does not mention the fact that the Applicant was not being paid for his work as a trainee. It was open to the IAD to find this omission misleading.
CONCLUSION
[38] I find it difficult to understand an applicant, such as the present one, who, after committing a criminal act or acts, is given a second opportunity to remain in Canada and fails to fulfill the conditions outlined for him to remain in Canada.
[39] There is absolutely no reason, legal or otherwise, for this Applicant to remain in Canada.
[40] The application for judicial review is denied.
ORDER
THIS COURT ORDERS that the application for judicial review is denied. No question was submitted for certification.
(Sgd.) "Max M. Teitelbaum"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2828-05
STYLE OF CAUSE: SUKHPAL SINGH SAHOTA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 26, 2005
REASONS FOR ORDER AND ORDER: TEITELBAUM J.
DATED: October 27, 2005
APPEARANCES:
Martin J. Bauer FOR APPLICANT
Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Martin J. Bauer FOR APPLICANT
Barrister & Solicitor
Burnaby, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, BC
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