Date: 20100903
Docket: IMM-389-10
Unrevised certified
translation Citation:
2010 FC 867
Ottawa, Ontario, September 3,
2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
RAMON Emilio Nolasco escano
Applicant
and
THe
ministER OF citIZENSHIP
AND immigration
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision of the Immigration
Appeal Division of the Immigration and Refugee Board of Canada (IAD) dated
December 23, 2009, dismissing the applicant’s appeal of a removal order issued
against him on February 24, 2009, pursuant to paragraph 36(1)(a) of the
Act. The IAD found that the humanitarian and compassionate considerations
raised by the applicant, in accordance with paragraph 67(1)(c) of the
Act, did not warrant special relief.
[2]
The
respondent brought a cross-motion to amend the style of cause by replacing the
applicant’s name with the letter “X” in order to protect the identity of the applicant’s
minor child, who was the victim of an indecent act of a sexual nature. The
respondent is also asking the Court to seal the record, on the ground that it
contains many documents and information that may identify the child. The
applicant did not oppose the motions and I am of the view that the best
interests of the applicant’s child warrant that the record be sealed. However,
I do not think it is necessary to amend the style of cause to protect the
child’s best interests.
[3]
For the
reasons that follow, the application for judicial review is dismissed.
Context of the application to appeal
[4]
The
applicant is a citizen of the Dominican
Republic. In
1994 he married a Canadian citizen and was granted landing in October 1995
after his spouse sponsored him. From the relationship a daughter, today aged
10, was born. The applicant and his spouse separated in July 2007.
[5]
A
complaint filed by the former spouse against the applicant in July 2007 led to
criminal charges being laid against the applicant as well as an order of
preventive detention against him. In April 2008, the applicant pleaded guilty
to the following offences:
a.
Uttering
threats to burn, destroy or damage real or personal property (paragraph
264.1(1)(b) of the Criminal Code);
b.
Criminal
harassment (subsection 264(1) of the Criminal Code);
c.
Possession
of child pornography (paragraph 163.1(4)(a) of the Criminal Code);
d.
Failure to
comply with a court order (article 145(3)(a) of the Criminal Code).
[7]
On May 19,
2009, the Superior Court of Quebec rendered a judgment granting the divorce of
the applicant from his former spouse. The Court awarded sole custody of the
child to the applicant’s former spouse and prohibited any contact between him
and his daughter or former spouse.
[8]
On April
25, 2008, the applicant was the subject of a report pursuant to subsection
44(1) of the Act. On February 24, 2009, an order for his removal was issued
against him on the ground that he was inadmissible on grounds of serious
criminality pursuant to subsection 35(1) of the Act. It is this removal order
that the applicant appealed before the IAD and it is the IAD’s decision which
is the subject of the application for judicial review. In his appeal, the
applicant did not challenge the validity of the removal order; he instead
sought consideration on humanitarian and compassionate grounds that, in his
view, would warrant the lifting of the order.
[9]
The
applicant also made a pre-removal risk assessment application that was rejected.
The applicant did not file an application for judicial review of that decision.
Issues
[10]
The
applicant makes several allegations with regard to the IAD’s decision, but his
allegations are essentially twofold: that the IAD committed errors in its
assessment of the applicable criteria for determining whether humanitarian and
compassionate considerations warranted the lifting of the removal order, and
that the IAD erred in its assessment of the special circumstances cited by the
applicant in support of his appeal.
Standard of review
[11]
In Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, the Supreme Court of Canada confirmed that the assessment by
the IAD of humanitarian and compassionate considerations cited in support of an
appeal of a removal order is reviewable on a standard of reasonableness. In Khosa,
the Court recognized the discretionary character of the IAD’s power and stated
that “[n]ot only is it left to the IAD to determine what constitute
‘humanitarian and compassionate considerations’, but the ‘sufficiency’ of such
considerations in a particular case as well”(para. 57).
[12]
The
assessment of the evidence submitted by the appellant is also owed the same
degree of deference and the Court will intervene only if the IAD’s findings and
inferences are unreasonable (Khosa and Dunmsuir v. New Brunswick, 2008 SCC 9). The analytical
framework that the Court should use when applying the reasonableness standard
is well described by the majority in Dunsmuir, at para. 47:
47 Reasonableness
is a deferential standard animated by the principle that underlies the
development of the two previous standards of reasonableness: certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions. Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[13]
The Court
will intervene only if the IAD’s findings do not fall within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
Analysis
[14]
Under
paragraph 36(1)(a) of the Act, a permanent resident is inadmissible if
they have been convicted of an offence punishable by a maximum term of
imprisonment of at least ten years, or of an offence for which a term of
imprisonment of more than six months has been imposed. Subsection 63(3) of the
Act provides that a person may appeal to the IAD against a decision to
make a removal order against them. The IAD may allow the appeal and stay the
removal order if it finds that humanitarian and compassionate considerations
warrant such relief:
67(1). To allow an appeal, the IAD must
be satisfied that, at the time that the appeal is disposed of,
. . .
(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.
[15]
Section 67
grants the IAD broad power in assessing the humanitarian and compassionate
considerations cited in an appeal (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3). In Chieu,
the Supreme Court also confirmed the relevance of having the IAD consider, in
addition to the best interests of the child, the factors established in the
case of Ribic v. Canada (Minister of Employment and Immigration), [1985]
I.A.B.D. No. 4 (QL), namely, the seriousness of the offence or offences
leading to the deportation order, the possibility of rehabilitation, or, in the
alternative, the circumstances surrounding the failure to meet the conditions
of admissibility which led to the deportation order, the length of time spent
in Canada and the degree of establishment, the family and the dislocation that
deportation would cause them, the support provided by the family and community
and the degree of hardship that would be caused to the appellant if he were to
return to his country of origin.
[16]
The
applicant’s complaints against the IAD are as follows:
a. The IAD
imposed on the applicant [translation]
“an excessive and disproportionate punishment contrary to the law, the liberty
and the dignity of the person and contrary to the Canadian legal and political
humanitarian tradition in similar matters, given the particular context of the
present case”;
b. The IAD
erroneously based its entire decision on the applicant’s guilty plea without
properly assessing the particular circumstances of the case;
c. The IAD also
failed to properly consider the criteria developed in Ribic and
confirmed by the Supreme Court in Chieu which, in this case, would have
led it to render a subjective decision. Specifically, it appears that the IAD
did not assign the necessary weight to the following factors: the support of
the community, the best interests of the child, the acknowledgement of
wrongdoing and rehabilitation. Further, it allegedly gave undue weight to the
applicant’s guilty plea;
d. The IAD erred
in its assessment of the applicant’s possibility of rehabilitation. First, the
IAD failed to consider the fact that the applicant had been badly advised by
his counsel and that measures were being taken to withdraw the guilty pleas.
The IAD should have also considered the fact that the criminal court did not
consider him to be at risk of reoffending. Furthermore, the IAD failed to
consider the fact that the applicant had complied with the conditions of his
parole. Lastly, the IAD doubted the possibility of the applicant’s
rehabilitation because he had not had any therapy, even though no therapy had
been ordered by the criminal court;
·
The
IAD failed to consider the fact that the applicant’s child could have been the
victim of an insidious [translation]
“exercise in persuasion” on the part of his ex-spouse and that he should not be
[translation] “considered as the
only one responsible for this difficult situation to the point where the only
possible solution would be his deportation from Canada”;
·
The
IAD did not sufficiently take into account the guilt expressed by the applicant
at the hearing, the dissuasive nature of his preventive detention, his conduct
after he was released and his compliance with the conditions of his probation;
·
The
IAD erred in its assessment of the degree of establishment of the applicant in
Canada and, specifically, the fact that he has worked since he arrived in
this country, that he had found numerous jobs in the restaurant business and
that his employers and the people he associated with expressed satisfaction
with regard to his work;
·
The
IAD erred in its assessment of the best interests of the child by not finding
that it would be contrary to the child’s best interests to separate her from
her father for good;
·
The
IAD dismissed the importance of testimony in support of the applicant and
wrongly assessed his testimony, which was [translation]
“frank, sincere and honest”, rather than indirect, as was mentioned in
the decision;
·
The
IAD failed to consider the difficulty a return to his country would pose to the
applicant with regard to access to medical care and emergency services given
the fact that he wears a pacemaker. He also cites the social ostracism he could
face if he were forced to return.
[17]
The
respondent, for his part, maintains that the IAD’s decision is reasonable and
that it is not for this Court to reassess or differently assess the Ribic factors, to reassess the best interests
of the child or to reweigh the evidence adduced before the IAD.
[18]
I find the
IAD’s decision to be entirely reasonable.
[19]
A reading
of the IAD’s decision shows that it scrupulously considered and analyzed all of
the criteria identified in Ribic and that it assessed all of the
circumstances raised by the applicant in light of the evidence adduced. Its
findings, with regard to the assessment of all of the criteria and to the
weight assigned to them, are intelligible, well articulated and supported by
the evidence.
[20]
The Board
found, as a preliminary matter, that the nature of the offences to which the
applicant pleaded guilty and the analysis of his potential for rehabilitation
did not favour the granting of special relief. The IAD based this finding on
several elements and specifically on the following facts:
- That the applicant had pleaded
guilty and was sentenced to a term of imprisonment of sixteen months and
three years’ probation;
- That the Court had issued an order
not to communicate with the victims as well as an order not to hold a job
or perform volunteer work that would place him in a position of trust with
persons under 14 years of age;
- That a number of aggravating
circumstances had led the criminal court judge not to grant bail before
the trial;
- That the applicant had failed to
comply with a Court order.
[21]
These
factors led the IAD to conclude that “[the applicant’s] criminal record is
serious” and that “[t]he nature of the [applicant’s] criminal record … weighs
heavily against the granting of special relief”.
[22]
The IAD
also analyzed this factor in the context of all of the circumstances of the
case and considered the applicant’s rehabilitation potential and the risk of
reoffending. In this regard, the IAD determined that although the applicant had
tried to portray himself as a victim, the evidence shows that it was the
applicant’s former spouse and child who were in fact the victims. The IAD also
dismissed the applicant’s argument that his counsel had not properly informed
him of the consequences of a guilty plea, noting, among other things, that the
applicant continued to retain the services of the same counsel for his family
law proceedings. The IAD also found that, at the hearing, the applicant failed
to acknowledge the offences he committed for which he had pleaded guilty. The
IAD found the applicant’s claim that he never had child pornography in his
possession not to be credible. The IAD also noted that the applicant had not undergone
any therapy to treat the behaviour he admitted he was guilty of. From these
factors it determined that the applicant’s testimony and attitude in no way
warranted the granting of special relief. The IAD stated the following:
[24] (…) To justify obtaining a stay, an
appellant must prove that he is shouldering responsibility for his criminal
behaviour, admit his guilt and accept the fact that he must rehabilitate in
order to become a person who is respectful of the law and an active member of
Canadian society. Through his testimony, the appellant proved the opposite.
[25] The panel feels that the appellant
in his testimony and prior statements has expressed neither remorse nor regret
for his criminal behaviour and in no way recognizes his responsibility,
preferring to blame his criminal lawyer whom he feels represented him poorly,
and to blame his ex-spouse whom he feels had plotted all of this against him
and continued to harass him after his release.
[26] These circumstances in the opinion
of the panel argue against the granting of special relief. In light of the
evidence submitted to it, the panel considers that the appellant’s
rehabilitation potential is at the moment very weak.
[23]
In addition
to the seriousness of the offences and the applicant’s potential for
rehabilitation, the IAD considered the other criteria identified in Ribic.
[24]
With
regard to the degree of establishment, the IAD considered the factors raised by
the applicant, namely, that he has lived in Canada for about fifteen years and has always
worked. It nonetheless found that these factors were not sufficient “to
overlook the seriousness of the charges and his lack of rehabilitation” (para.
29 of the decision).
[25]
The IAD
also considered the evidence with respect to the amount of support available to
the applicant from his family and from the community as well as the potential
hardship his family and friends could suffer if he were to leave. In its
analysis, the IAD took into account the fact that the only members of the
applicant’s family who live in Canada are his former spouse and his
daughter, both of whom he is prohibited from contacting. Also taken into
consideration was testimony from the chaplain at the detention centre, from a
friend of the applicant and from his new spouse. The IAD determined that, in
light of the evidence, neither the applicant’s friends nor his former spouse or
his daughter would suffer undue hardship as a result of his removal.
[26]
As for the
hardship the applicant claims he would suffer should he be removed to the
Dominican Republic, the IAD noted that the applicant still had immediate family
in his country, that he had a place to live and that he had not demonstrated
any risk of serious harm.
[27]
The IAD
also considered the best interests of the child. In its assessment, it took
into account the fact that the applicant had not had any contact with his
daughter since July 2007 and that a court order prohibited him from contacting
her. The IAD also considered the findings of a psychologist and of a child
psychiatric assessment describing the hardship experienced by the child and revealing
that she did not want to see her father. The IAD determined that while it is
generally in the best interests of the child not to be separated from his or
her parents, the circumstances in this case led it to conclude that the
applicant’s daughter would suffer no harm if her father were to be removed from
Canada.
[28]
The
applicant essentially disagrees with the IAD’s findings and is asking the Court
to review the weight ascribed to the various criteria considered by the IAD and
to reassess both these factors and the evidence submitted by the applicant.
This is not the role of the reviewing Court. It is not for this Court to reassess
the totality of the evidence and the weight ascribed to each factor, but rather
to determine whether the IAD’s decision falls within a range of reasonable conclusions
it could have drawn from the evidence and from the circumstances of the case.
[29]
I am of
the view that the IAD properly exercised its discretion, that it analyzed the
circumstances raised by the applicant and that its findings are reasonable with
respect to the facts and law.
[30]
The
present application for judicial review must therefore be dismissed.
[31]
Counsel
proposed no questions of general importance for certification.
JUDGMENT
THE COURT dismisses the application for judicial
review. No question is certified.
The record is sealed.
“Marie-Josée
Bédard”
Certified true translation
Sebastian Desbarats,
Translator
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