Date: 20050603
Docket: IMM-8917-04
Citation: 2005 FC 777
Ottawa, Ontario, June 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
BAHADUR SINGH BHALRU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
OVERVIEW
[1] What constitutes reasonable or proper consideration of any factor, whether examined on its own, or combined with others, in the context of all the circumstances of the case?
It is for the Immigration Appeal Division (IAD) of the Immigration and Refugee Board to determine the weight that it attributes to each and every factor.
The Court, in judicial review, can only determine whether the IAD did, or did not, give reasonable consideration to the evidence. If reasonable consideration is given, it is for the Court, in judicial review, to conduct itself with sensible deference and, thereafter, not to weigh evidence anew.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (IRPA) of the decision of the IAD which, on October 6, 2004, dismissed the Applicant's appeal from the inadmissibility finding for serious criminality and from the removal order issued against him.
BACKGROUND
[3] Mr. Bhalru was born in India and he immigrated to Canada with his parents in February 1997 when he was almost eighteen years old. He is a permanent resident of Canada.
[4] In November 2000, Mr. Bhalru engaged in a high speed street race in Vancouver, British Columbia, involving two vehicles, one being driven by Mr. Bhalru and the other by Mr. Sukhvir Singh Khosa. During the race, Mr. Khosa lost control of his vehicle, which struck and killed Ms. Irene Thorpe, a pedestrian.
[5] In October 2002, the Supreme Court of British Columbia (Trial Court) convicted both Mr. Bhalru and Mr. Khosa of criminal negligence causing the death of Ms. Thorpe. In its reasons for judgment, the Trial Court wrote that it had "no hesitation in concluding that Mr. Khosa and Mr. Bhalru showed wanton or reckless disregard for the safety of other persons and find them both guilty as charged." Following their convictions, the Trial Court imposed on both Mr. Bhalru and Mr. Khosa a conditional sentence of two years less a day with various conditions, a prohibition from operating a motor vehicle for five years and probation for three years.
[6] Mr. Bhalru and Mr. Khosa appealed their convictions to the British Columbia Court of Appeal (Court of Appeal) and the Crown appealed their sentences. In November 2003, the Court of Appeal dismissed all of the appeals. Mr. Bhalru sought leave to appeal to the Supreme Court of Canada but his application for leave was dismissed.
[7] Following his conviction for criminal negligence causing death, Mr. Bhalru was found to be inadmissible for serious criminality under paragraph 36(1)(a) of IRPA and he was ordered removed from Canada.
[8] Mr. Bhalru appealed his removal to the IAD, seeking special relief on humanitarian and compassionate grounds under subsection 67(3) of IRPA. Mr. Bhalru did not challenge the legal validity of the removal order against him.
[9] In May 2004, a three-member IAD panel heard Mr. Bhalru's appeal and in October 2004, the IAD dismissed the appeal. The majority decision found that, when all of the evidence was considered, the removal order against Mr. Bhalru was in accordance with the law and Mr. Bhalru had not demonstrated that there were sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. The remaining IAD member agreed that the evidence was insufficient to allow Mr. Bhalru's appeal on humanitarian and compassionate grounds but determined that she would have exercised the IAD's discretion to stay the removal order against Mr. Bhalru for review in three years.
[10] Mr. Bhalru is now asking this Court to review the IAD's decision which did not grant him special relief on humanitarian and compassionate grounds.
ISSUE
[11] Did the IAD exercise its discretion in bad faith or without regard to the proper factors or the materials before it?
ANALYSIS
Relevant legislation
[12] As noted earlier, Mr. Bhalru did not challenge the legal validity of the removal order against him. Instead, he brought his appeal to the IAD solely on the ground that there were sufficient humanitarian and compassionate considerations in all of the circumstances of his case to warrant special relief.
[13] 
IRPA provides that a permanent resident has a right of appeal to the IAD against a removal order on various grounds including humanitarian and compassionate grounds:
[14] Paragraph 70(1)(b) of the former Immigration Actconferred a similar equitable discretion on the IAD to grant a permanent resident relief from removal "on the ground that, having regard to all of the circumstances of the case, the person should not be removed from Canada."
Onus and standard of review
[15] In appealing his removal order to the IAD on humanitarian and compassionate grounds, Mr. Bhalru was seeking special relief or a discretionary privilege from the IAD.
[16] In Prata v. Canada(Minister of Manpower and Immigration), the Supreme Court of Canada stated that 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."
[17] As a person seeking "special relief" or a discretionary privilege, the onus was on Mr. Bhalru to establish exceptional reasons why he should be allowed to remain in Canada (Chieu v. Canada(Minister of Citizenship and Immigration)).
[18] In Jessani v. Canada(Minister of Citizenship and Immigration), the Federal Court of Appeal held that the standard of judicial deference to be afforded the Board's factual findings in relation to subsection 70(1) of the Immigration Act (now subsection 67(1) of IRPA) is one of patent unreasonableness. The Federal Court (Trial Division) has held that it will not interfere with the exercise by the IAD of its statutory discretion as long as the discretion has been exercised in good faith and without regard to extraneous or irrelevant considerations. In Mohammed v. Canada(Minister of Citizenship and Immigration), the Court wrote:
The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in paragraph 70(1)(b) of the Act which empowers the Appeal Division to determine, "having regard to all the circumstances of the case" whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division. (Emphasis added.)
The IAD properly considered and weighed the relevant factors
[19] In Ribic v. Canada (Minister of Employment and Immigration), the Immigration Appeal Board, which was the predecessor to the IAD, listed various general areas that it looked to when determining whether to grant an appellant special relief from a removal order including:
(a) the seriousness of the offence leading to the removal order;
(b) the possibility of rehabilitation;
(c) the length of time spent in Canada and the degree to which the appellant is established;
(d) family in Canada and the dislocation to the family that removal of the appellant would cause;
(e) the support available to the appellant within both the family and the community; and
(f) the degree of hardship that could be caused to the appellant by his return to his country of nationality.
[20] The approach set out in Ribic, supra, was approved by the Supreme Court of Canada in Chieu,supra. The Supreme Court of Canada stated that the factors set out in Ribic remain the proper ones for the IAD to consider during an appeal under paragraph 70(1)(b) of the former Immigration Act, now paragraph 67(1)(c) of IRPA.
[21] In this case, the majority decision begins by stating that the factors set out in Ribic, supra, and the underlying objectives of IRPA are relevant to any decision of the IAD when it is exercising its discretionary jurisdiction and it then considers in the rest of its 17 page decision the Ribic factors and all the circumstances of Mr. Bhalru's case.
[22] The majority decision held that the seriousness of Mr. Bhalru's offence, his denial during the IAD proceedings of his culpability and involvement in the events of November 2000 were highly negative factors; however, Mr. Bhalru's level of community support and his establishment in Canada supported his continued stay in Canada. With respect to the dislocation of Mr. Bhalru and his family that would be caused by his removal, the majority decision found that Mr. Bhalru was not without resettlement opportunities in India and that his family would have a reasonable degree of support in Canada even if Mr. Bhalru were removed. After considering and weighing all of the circumstances, the majority decision concluded that Mr. Bhalru had not demonstrated that there were sufficient humanitarian and compassionate considerations to warrant special relief in Mr. Bhalru's case.
[23] Mr. Bhalru argues that the majority decision erred by failing to properly apply and weigh the Ribic factors. He also argues that the majority decision committed an error of law or fettered its discretion during its consideration of the Ribic factors by placing too much weight on Mr. Bhalru's continued assertion of innocence and on his failure to express remorse and to accept responsibility for his actions, and not enough weight on other factors.
[24] Mr. Bhalru is simply asking this Court to re-weigh the evidence before the IAD and the Ribic factors and make a different decision; however, that is not the task of this Court on a judicial review application (Badhan v. Canada(Minister of Citizenship and Immigration) and Cherrington v. Canada(Minister of Citizenship and Immigration)). The Court is satisfied that the majority decision properly considered all of the relevant factors that it identified the positive as well as the negative ones and gave them the weight it considered appropriate. The fact that the majority decision may have given more weight to some factors, rather than to others, does not establish that it had ignored certain factors or otherwise erred. The majority decision clearly considered all of the factors: it specifically stated that it would be an error for the IAD to dismiss Mr. Bhalru's appeal solely on the basis of the seriousness of the offence and on his present denial of culpability. The same argument was made by the applicant in Olaso v. Canada(Minister of Citizenship and Immigration). Mr. Olaso argued that the IAD erred by placing too much weight on his likelihood of re-offending when it dismissed his appeal. This Court rejected Mr. Olaso's argument and held that he had confused consideration in respect of all of the relevant factors with giving them all equal weight:
On its face, the [IAD] decision considers various factors in relation to the applicant and his circumstances. It identifies the positive as well as the negative. It chooses to give more weight to the risk of re-offending than to the dislocation to be caused to the applicant and his family. While others may have come to a different conclusion, there is no credible argument that the decision bears no rational relationship to the evidence or the criteria to be applied to it. The applicant's argument is that the IAD's reliance on the likelihood of re-offending to justify its decision means that this factor was the only one considered. This confuses considering all the factors with giving them all equal weight. It is for the IAD to assign weights to the various factors based upon the case which is before it. There is no credible argument that it was unreasonable for it to do as it did. Others may have a different view but that is not evidence of unreasonableness. (Emphasis added.)
[25] On a related note, Mr. Bhalru argues that the majority decision erred by ignoring other cases in which the IAD had granted appellants special relief on humanitarian and compassionate grounds; however, the simple fact that the IAD may have granted special relief in other cases is not evidence that the majority decision in Mr. Bhalru's case was patently unreasonable.
[26] With respect to his failure to express remorse, Mr. Bhalru argues that the majority decision erred when it found that it was difficult to conclude that he had demonstrated any insight or had taken responsibility for his conduct and participation in the offence, the majority decision also expressed continuing concerns with respect to the issue of recidivism. Mr. Bhalru argues that the majority decision should have accepted his expression of remorse during his criminal proceedings as well as findings by both the criminal courts and psychologist, Dr. Robert Ley, that he was unlikely to re-offend.
[27] The Court is satisfied that the majority decision properly considered all of the evidence before it, including the decisions of the criminal courts, the reports prepared by Dr. Ley and the testimony of Mr. Bhalru and other witnesses at the IAD hearing. The majority decision was entitled to accept the criminal courts' finding that Mr. Bhalru had participated in a street race. The IAD was also entitled to decide for itself the matter of recidivism, based on the evidence before it. After considering all of the evidence, the majority decision reasonably found that the evidence of Mr. Bhalru's remorse was unsatisfactory:
While it may well have been [Mr. Bhalru] expressed remorse at trial for his conduct, the expression of remorse was not reflected before me at the present appeal hearing. To the contrary, [Mr. Bhalru] denies participation in the offence or that his conduct on the night in question played a role in the death of the victim. The comments of [Mr. Bhalru's] sister at hearing, along with Mr. Gill's belief in [Mr. Bhalru's] innocence on the basis of [Mr. Bhalru's] statements to him, do not suggest that [Mr. Bhalru] accepts responsibility for his conduct beyond his expression of "remorse" at the sentencing proceedings.
[28] The majority decision's finding that, notwithstanding the court materials and Dr. Ley's report, there were still continuing concerns with respect to the matter of recidivism. In light of Mr. Bhalru's testimony at the IAD hearing, this is not a patently unreasonable finding.
The IAD properly considered and weighed the evidence
[29] Mr. Bhalru also argues that the IAD failed to consider all of the evidence before it. In particular, he alleges that the IAD failed to consider the psychological reports, prepared by Dr. Ley, as well as two community petitions.
[30] In response, the majority decision's reasons clearly indicate that it considered both Dr. Ley's psychological reports and the petitions themselves. The majority decision referred to Dr. Ley's reports on several occasions. The majority decision did, in fact, consider the community petitions at some length and accepted the petitions as evidence of general support for Mr. Bhalru within the community.
No reasonable apprehension of bias
[31] Finally, Mr. Bhalru argues that there was a reasonable apprehension that the IAD members who dismissed his appeal were biased against him.
[32] The grounds for an apprehension of bias must be substantial and the threshold for a finding of bias is high (R. v. R.D.S. and Committee for Justice and Liberty v. National Energy Board). The fact that the IAD initially denied Mr. Bhalru's request for an adjournment and then granted the request of the Minister of Citizenship and Immigration is, in and of itself, not a substantial ground on which to find bias. Mr. Bhalru's original request was opposed by the Minister whereas the Minister's later request was unopposed by Mr. Bhalru. There is no indication of bias in the majority decision's reasons. To the contrary, the majority decision, in its reasons, decided Mr. Bhalru's appeal in a fair and impartial manner.
CONCLUSION
[33] The Court finds that the IAD acted in good faith, considered all of the Ribic factors and gave weight to the relevant evidence in a manner that was not patently unreasonable. For these reasons, the Court answers the question at issue in the negative. Consequently, the application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No question be certified.
"Michel M.J. Shore"
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