Date: 20101026
Docket: IMM-742-10
Citation: 2010 FC 1048
Ottawa, Ontario, October 26,
2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
JIN
SU KIM, EUN SU KIM
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Jin Su Kim and Eun Su
Kim are asking the Court to review and set aside the January 11, 2010 decision
of a Member of the Immigration Appeal Division of the Immigration and Refugee
Board, in which the Member denied their appeals of removal orders issued
against them on June 15, 2005.
[2]
For
the reasons that follow, I am not persuaded that the Member made any of the
errors alleged by the applicants and I find that the decision under review is
reasonable as defined by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9. Accordingly, their application must be
dismissed.
Background
[3]
Jin
Su Kim was born on April 13, 1985, and Eun Su Kim was born on April 18, 1986.
They are brothers. Both are citizens of South Korea. They came
to Canada with their
father and mother on April 14, 2001. The family settled in Calgary, intending
to start a business. Their father qualified as a permanent resident under the
entrepreneur class. Without notice, their father returned to Korea in September
2001 and the applicants’ father and mother subsequently divorced. The
applicants have not had contact with their father, or his family, since
September 2001.
[4]
Throughout
their time in Canada, both applicants
have attended school and have been employed although neither has completed
secondary education or held employment that was not low-skilled and low-paying.
[5]
On
June 22, 2003, Jin Su Kim and a friend, while intoxicated, decided to retain
the services of a prostitute which they learned would cost them $400. While
using a bank machine, the two decided that they would not pay her for her
services. After both men had sexual intercourse with the prostitute, Jin Su
Kim pushed her, and the two drove away. They discovered her purse in their
car, and adding insult to injury, they split her cash and disposed of the
purse. On February 25, 2005, Jin Su Kim pleaded guilty to assault and theft
under $5,000. He was sentenced to 90 days in prison and was required to take
alcohol abuse and anger management counselling.
[6]
In
June 2006, Jin Su Kim moved out of his mother’s house. His mother rented him a
two-bedroom apartment and he found a roommate, Victor Song. Mr. Song was a
drug dealer Mr. Kim knew from Vancouver. His younger brother Eun
Su Kim also moved in with his brother and Mr. Song. Apparently, one of their
motivations for having Mr. Song move in was that he would provide the
applicants with marijuana, which they consumed on a regular basis. Jin Su Kim also
consumed cocaine on a frequent basis.
[7]
In
mid August 2006, the Calgary Police conducted a sting operation in which they
purchased crack cocaine from Mr. Song. On the basis of this investigation, the
police obtained a warrant and searched the applicants’ apartment. They
recovered a great deal of illegal substances and drug paraphernalia from the
common areas of the apartment. They also found over $1,500 cash in the applicants’
room. On March 3, 2009, the applicants both pleaded guilty to possessing proceeds
of crime and were fined $1,000 each.
[8]
On
June 15, 2005, removal orders were issued against the applicants and their
mother, Mrs. Kim, pursuant to subsection 41(b), Immigration and Refugee
Protection Act, S.C. 2001 c. 27, on the basis of the applicants’ father’s
failure to fulfill the entrepreneurial conditions attached to the family
permanent residence application. All three appealed their removal orders on
June 29, 2005, pursuant to subsection 63(3) of the Act.
[9]
Mrs.
Kim, having completed the requisite training, opened a salon in 2006. Her
appeal was allowed in 2008, but the hearing of the applicants’ appeals was
postponed at that time because of their scheduled criminal trials.
[10]
Eun
Su Kim was arrested on December 31, 2008. On August 25, 2008, four unknown
individuals convinced Terrance Yip to attend a party. Instead, he was taken to
a basement and assaulted. He was tortured over four days. His attackers
forcibly seized two cars from him – a 2001 Acura CL and a 1999 Porsche Boxster.
According to Eun Su Kim, he had asked a friend, Steve Jun, to borrow money to
pay for his legal fees. Instead of cash, Mr. Jun gave Eun Su Kim a 2001 Acura
and a 1999 Porsche, and told him to sell the vehicles. Eun Su Kim put the
Porsche up for auction, but it was seized on November 7, 2008. He maintained
possession of the Acura until January 8, 2008 when the police attended the applicants’
residence and seized it. The charges against Eun Su Kim relating to these events
were stayed in June 2009.
[11]
The
applicants’ appeal hearings took place on July 21, 2009. At the time of the
hearing, Jin Su Kim was engaged to Michelle Lee who was ordinarily resident in Vancouver as she was attending
the University
of British Columbia. The two subsequently married. On January 11, 2010, the
Member dismissed the applicants’ appeals.
Issues
[12]
The
following issues were addressed in the memoranda filed and the oral submissions
made:
1. What are the appropriate
standards of review?
2. Did the Member err in failing
to consider rehabilitation?
3. In
the alternative, did the Member err by focusing on proof of rehabilitation
rather than the possibility of rehabilitation?
4. Were
the Member’s findings with respect to criminality and establishment in Canada reasonable?
Standards of Review
[13]
The
applicants submit that a failure to consider a factor in the test set out in Ribic
v. Canada (Minister of
Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), as confirmed by Chieu
v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, is an error of law reviewable
on the standard of correctness. They rely on Shaath v. Canada (Minister of
Citizenship and Immigration), 2009 FC 731, as the authority for this
submission. The applicants submit that issues 2 and 3 are therefore to be
reviewed on the standard of correctness while the standard of review for issue
4 is reasonableness.
[14]
I am unable to accept that submission. The Supreme Court of
Canada in Canada (Minister of Citizenship and Immigration) v. Khosa,
2009 SCC 12, held that the standard of
review for decisions of the IAD on appeals of removal orders under the Act is
the reasonableness standard. At para. 57, the Supreme Court noted:
In recognition that hardship may come from removal, Parliament has
provided in s. 67(1)(c) a power to grant exceptional relief. The nature
of the question posed by s. 67(1)(c) requires the IAD to be
"satisfied that, at the time that the appeal is disposed of ... sufficient
humanitarian and compassionate considerations warrant special relief".
Not 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. Section 67(1)(c) calls for
a fact-dependent and policy-driven assessment by the IAD itself. As noted 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. [emphasis added.]
[15]
Therefore,
issue 2 is reviewable on the standard of reasonableness as is issue 3, as was
done recently in Martinez-Soto v. Canada (Citizenship
and Immigration), 2008 FC 883.
Ribic Factors
[16]
The
applicants submit that their criminality
was a decisive factor in the appeal decision and therefore assert that the
Member ought to have considered the possibility of rehabilitation, which they say
is a factor clearly set out in Ribic and approved in Chieu.
[17]
The
decision of the IAD in Ribic does not state that rehabilitation is to be
considered in every case. What the IAD in Ribic stated, with respect to
rehabilitation, is as follows:
In each case the Board looks
to the same general areas to determine if having regard to all the
circumstances of the case, the person should not be removed from Canada. These circumstances include
the seriousness of the offence or offences leading to the deportation and the
possibility of rehabilitation or in the alternative, the circumstances
surrounding the failure to meet the conditions of admission which led to the
deportation order. The Board looks to the length of time spent in Canada
and the degree to which the appellant is established; family in Canada and the
dislocation to that family that deportation of the appellant would cause; the
support available for the appellant not only within the family but also within
the community and the degree of hardship that would be caused to the appellant
by his return to his country of nationality. [emphasis added]
[18]
As
is clear from the underlined passage, where the deportation is as a result of a
failure to meet the conditions of admission, as it is in this case, the factor to
be considered is not rehabilitation but the circumstances surrounding the
failure to meet the admission conditions. Here, the Member was cognisant of
that distinction. She recites the relevant factors and, as is proper as the basis
of the removal order was not criminality, does not include either the
seriousness of the offence that gave rise to the removal order or the
possibility of rehabilitation. She describes the relevant factors as follows:
The relevant factors to be
considered in the exercise of the IAD’s discretion in entrepreneurial appeals
includes (sic):
·
The seriousness
of the breach(es) leading to the removal order;
·
The
remorsefulness of the appellants;
·
The length
of time spent in Canada and the degree to which the
appellants are established here;
·
The
appellants’ family in Canada and the impact to the family
that the removal would cause;
·
The best
interests of any child directly affected by the decision;
·
The
support available to the appellants in the family and the community; and
·
The degree
of hardship that would likely be caused to the appellants by removal from Canada, including the conditions in
the likely country of removal.
[19]
The
Member properly examined the circumstances leading to the removal order, properly
found that it was the fault of the father, not of the applicants or their
mother, and noted that the applicants were children at the time. Those were
the relevant considerations in this case to be considered as potentially
offsetting the breach of admission conditions.
[20]
The
applicants submit that the Member unduly focused her decision on their criminal
records. They submit that this undue focus tainted her objectivity when
considering the other Ribic factors. Counsel submitted that the Member,
in focusing her examination on the criminality of the applicants, effectively
treated their appeal as if the basis for the removal was their criminality and,
having done so, she had to turn her mind to the possibility of rehabilitation.
[21]
I
am unable to agree with that submission. The Member makes it quite clear that
she understands the basis for the removal order: failure to comply with the
residency conditions. The focus of her analysis of the criminal records of the
applicants is done within her examination of their establishment in Canada.
Establishment in Canada entails not just an examination of the positive
factors such as education, employment, property and family, it also entails an
examination of negative factors. In that respect the fact that these
applicants engaged in criminality, even after they were subject to removal
orders, is a relevant consideration for the Member. In this context, the fact
that an appellant might become rehabilitated in the future is, to my mind,
quite irrelevant. It is his present situation and circumstances that are
relevant when examining his establishment, not what they could become if he is
permitted to remain in Canada.
[22]
The
Member, in my view, was quite correct not to undertake an explicit analysis of
the possibility of rehabilitation when considering the applicants’ criminal
records in relation to their establishment in Canada; however,
the Member did consider their remorsefulness. That analysis was appropriate
and was not unreasonable.
Proof Versus Possibility
of Rehabilitation
[23]
The
applicants submit that the IAD was demanding proof that they were already
rehabilitated when the Member ought to have been concerned with whether they
were likely to be rehabilitated in the future.
[24]
As
has already been stated, in this case, the applicants’ criminal records are not
relevant to the appeal of the reason for the removal orders. Nonetheless, the
Member did not impose a standard of full rehabilitation, but noted that:
The appellants have had
sufficient opportunities over the years to show that they would be
law-abiding residents and contributing members of Canadian society. [emphasis
added]
This illustrates that the Member was not focused
on the applicants showing that they were fully rehabilitated; rather, the Member
found that the evidence showed that they had failed to demonstrate that they
could be law-abiding residents of Canada. In other words, the
Member noted that the applicants had not adequately demonstrated the
possibility of rehabilitation. Given their criminal records, particularly
after removal orders were issued, this finding is not unreasonable.
Reasonableness of the Findings
on Criminality and Establishment
[25]
As
noted earlier, it is submitted that the Member unduly focused on the
applicants’ criminality, thereby tainting the remainder of her analysis. In
particular, it is asserted that it was unreasonable to require Eun Su Kim to
learn from the mistakes of his brother and his 2005 conviction. It is stated
that none of the offences would have led to deportation under the Act, and the
Member’s determination that a short criminal history is a significant negative
factor is unreasonable. Similarly, it is submitted that criminality should not
have weighed so heavily in the Member’s assessment of the applicants’
establishment in Canada or their family ties.
[26]
I
agree with the respondent. The
Member’s decision was not based solely on criminality. When considering
establishment in Canada the applicants’ criminal history cannot be
ignored. The submissions advanced by the applicants raise questions about the
weight given to the evidence; this is no basis to overturn the Member’s
decision.
[27]
The offences of the applicants
involve assaulting and robbing a prostitute and possessing the proceeds of drug
trafficking. These are serious matters and it was reasonable for the Member to
take them into account when assessing the applicants’ establishment in Canada, family ties, and community support. The Member’s
findings in these regards are not unreasonable.
[28]
For
these reasons this application is dismissed. Neither party proposed a question
for certification. There is none on the facts before the Court.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application is dismissed; and
2.
No
question is certified.
“Russel
W. Zinn”
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