Date: 20090304
Docket: IMM-2241-08
Citation: 2009 FC 239
Ottawa, Ontario, March 4, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Applicant
and
ESSIEN
CHARLES UDO
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review filed by the Minister seeking to quash an extension of an
existing stay of removal. The stay of removal at issue in this decision will
expire on April 29, 2009. This decision may be academic, but may give guidance
to the review which is ordered and any application for further extension of the
Respondent’s stay of removal.
II. BACKGROUND
[2]
Mr.
Udo, the Respondent in this judicial review, has resided in Canada for 30 years
having come here at age 17. He holds Nigerian and U.K. citizenship.
[3]
To
say that Mr. Udo has not been a shining light of our immigration system is an
understatement. Between 1988 and 1995 he acquired nine criminal convictions
including: four (4) counts of possession of stolen property, theft, possession
of a narcotic, and forcible confinement. He has outstanding warrants in Manitoba for failure
to pay fines. For the past four years he has been collecting social assistance
continuously.
[4]
Finally,
in October 2003, Mr. Udo was found to be inadmissible due to serious
criminality in respect of forcible confinement of his girlfriend.
[5]
For
reasons which are not entirely clear, in November 2005 the Immigration Appeal
Division (IAD) stayed Mr. Udo’s removal for two years subject to a number of
mandatory terms and conditions.
[6]
Continuing
his less than stellar conduct, Mr. Udo breached a number of these conditions
by:
a.
failing
to pay off existing fines as he was ordered;
b.
failing
to settle an outstanding warrant;
c.
failing
to obtain a passport; and
d.
failing
to report on May
15, 2007.
He also failed to report for an immigration
oral interview scheduled for November 27, 2007.
[7]
The
IAD considered that the issue in the hearing for a further extension of the
stay of removal was whether Mr. Udo had breached the conditions of his stay and
whether there were sufficient humanitarian and compassionate grounds, taking
into consideration the best interests of any child affected, to allow special
relief to either allow the appeal or extend the stay of removal.
[8]
The
IAD noted the Ribic factors (Ribic v. Canada (Minister of Employment
and Immigration), [1985] I.A.B.D. No. 4 (QL)) and said it was guided by s.
3(1)(h) of the Immigration and Refugee Protection Act (IRPA)
(protection of health, safety and security of Canadians).
In addressing
the Ribic factors, the IAD found:
Seriousness
of offence
Possession of
narcotics, forcible confinement, and assault were serious convictions.
Possibility
of Rehabilitation
On this
issue, the IAD made the critical finding that he had not been, and was unlikely
to be, rehabilitated. The IAD noted his indifference to the conditions of his
stay and concluded that his failure to comply with the conditions negated any
positive weight that could be accorded to his lack of additional criminal
convictions since 1995.
Length of
Time in Canada and Degree of Establishment
The IAD
concluded that he was not economically established and gave no weight to the
alleged relationship he had, particularly as there were no children who would
be affected by his removal.
Family in Canada and
Dislocation
The IAD
acknowledged the hardship Mr. Udo’s removal might cause his mother.
Support Available
Despite his
mother’s support, Mr. Udo had not changed and was unlikely to do so.
Potential
Hardship upon Removal
Having been
born in the U.K., raised in Nigeria, and with no
evidence of country of return being presented, the IAD concluded that starting
afresh at 47 in a new country would cause considerable hardship.
[9]
Having
conducted this analysis, the IAD then went on to state that “it becomes very
difficult to issue a stay of removal or extend that stay when the results are
meaningless”. That said, and despite the earlier finding that the breach of
conditions resulted in no positive weight being given to the absence of further
criminal convictions since 1995, the IAD concluded that “he has remained
crime-free since that date and that factor weighs in his favour”.
III. ANALYSIS
A. Standard
of Review
[10]
While
the Applicant Minister attempted to characterize this IAD decision as engaging
an error of law for which the standard of review is correctness, the errors at
issue are of fact or of mixed fact and law, as well as of logical inconsistency
and transparency of the decision.
[11]
In
the post-Dunsmuir era (Dunsmuir v. New Brunswick, 2008 SCC
9), issues of fact and mixed fact and law are generally reviewed on a
reasonableness standard. While deference is owed to factual determinations,
inconsistencies and overall unreasonableness are reviewable errors.
B. Reasonableness
[12]
The
evidence of hardship was thin, but at least some existed. The Court does not
accept that in using the word “considerable” under the heading of “potential
hardship upon removal”, the IAD applied the wrong legal test to all the
circumstances of this case. If the IAD had concluded that starting afresh at
age 47 was the predominant factor constituting humanitarian and compassionate
grounds and overcoming all the negatives in this case, that would have been an
error (Chieu v. Canada (Minister of Citizenship and Immigration), 2002
SCC 3).
[13]
The
Court also does not accept that Mr. Udo’s “unclean hands” precluded the IAD
from granting equitable relief. The very process of determining H&C grounds
starts with an “unclean hands” situation – the breach of the conditions of a
stay order. The full quote from Thanabalasingham v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 14, upon which the Applicant
relied on only in part, is:
In my
view, the jurisprudence cited by the Minister does not support the proposition
advanced in paragraph 23 of counsel's memorandum of fact and law that,
"where it appears that an applicant has not come to the Court with clean
hands, the Court must initially determine whether in fact the party has unclean
hands, and if that is proven, the Court must refuse to hear or grant the
application on its merits." Rather, the case law suggests that, if
satisfied that an applicant has lied, or is otherwise guilty of misconduct, a
reviewing court may dismiss the application without proceeding to
determine the merits or, even though having found reviewable error, decline to
grant relief.
[Emphasis added]
[14]
However,
the IAD’s decision was, overall, unreasonable. The unreasonableness of the
IAD’s decision lies in several places. The reference to and reliance on the
best interests of non-existent children is the least egregious since the
comment may be attributed to the unthinking use of boilerplate language.
[15]
The
IAD’s findings on Mr. Udo’s criminal convictions, or lack thereof, since 1995 are
inconsistent and contradictory. While the IAD determined that it would give no
weight to the post-1995 absence of convictions given his absences of
rehabilitation, it went on in its conclusions to give the post-1995 absence of
convictions positive weight.
[16]
The
IAD further found that Mr. Udo breached the terms of his stay order, showed no
rehabilitation nor likelihood of rehabilitation in the future, demonstrated an
uncaring attitude, had no significant ties to Canada, and that a
further stay would produce meaningless results. To then grant a stay is
unreasonable in the extreme. It is impossible to square this conclusion to
grant a further stay with a consideration of s. 3(1)(h) of IRPA.
[17]
Against
this background, to grant a further stay is tantamount to condoning Mr. Udo’s
past criminal record and his continuing disregard for his obligation to comply
with the conditions of immigration orders. To support this IAD decision would
be to make a mockery of the legitimate and law abiding behaviour of the rest of
Canadian society, including the deserving immigrant community.
IV. CONCLUSION
[18]
Therefore,
this judicial review will be granted, the IAD’s decision quashed, and the
matter referred to a new panel for a fresh determination consistent with the
reasons of this Court. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the Immigration Appeal Division’s
decision is quashed, and the matter is to be referred to a new panel for a
fresh determination consistent with the reasons of this Court.
“Michael
L. Phelan”
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