Date: 20090728
Docket: IMM-276-09
Citation: 2009 FC 762
Ottawa, Ontario, July 28, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ASHIQUR
RAHAMAN KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Act, S.C. 2001, c. 27 (the Act), by the Applicant, of a
decision by the Immigration Appeal Division of the Immigration and Refugee
Board (the Board) dated December 30, 2008, where the Board dismissed the
Applicant’s appeal brought under subsection 63(3) of the Act with respect to a
deportation order issued against him on September 20, 2007.
Issue
[2]
The
only issue in the case at bar is whether the Board committed a reviewable error
in failing to consider relevant factors in determining whether there were
sufficient humanitarian grounds to warrant special relief.
[3]
The
judicial review application shall be allowed for the following reasons.
Factual Background
[4]
The
Applicant is a 53 year old citizen of Bangladesh who had worked as a
civil engineer in the army for 25 years. He has been married since 1984 to Nasima
Ashiq, a 43 year old permanent resident of Canada. The
Applicant and his wife have two sons: Shafiqur, a 22 year old Canadian citizen
who is a student at the University of Ottawa and Abidur, an 18 year old
permanent resident who has applied for citizenship and who was finishing high
school at the time of the hearing.
[5]
Although
the Applicant never worked as an engineer outside the army, his engineering
diploma is recognized in his country. Prior to his arrival to Canada, the
Applicant retired from the Armed Forces.
[6]
On
October
10, 2003,
the Applicant landed in Canada as a permanent resident. He went back to Bangladesh in December
2003 and brought his family to Canada on February 2, 2004. The Applicant has no
other family in Canada.
[7]
On
September 7, 2005, the Applicant was convicted of sexual assault perpetrated in
August 2004 while he was on duty as a security guard in charge of a woman
who was hospitalized following a suicide attempt.
[8]
Following
his conviction, the Applicant could no longer work as a security guard and had
different odd jobs. While living in Ontario, he was required to register
himself in the Ontario Sex Offender registry.
[9]
In
September 2006, the Applicant moved to Quebec with his
wife and younger son and started a full time program at Concordia University
to pursue a Masters degree in engineering, which he predicted would be
completed in August 2008.
[10]
On
September 20, 2007, a deportation order was issued against the Applicant
following an admissibility hearing held pursuant to a referral under subsection
44(2) of the Act dated June 28, 2006 and a report made under
subsection 44(1) and paragraph 36(1)a) of the Act, dated May 11, 2006. The
report was made following the Applicant’s conviction for sexual assault
pursuant to section 271 of the Criminal Code. The Applicant filed an
appeal from the deportation order to the Immigration Appeal Division on
September 20, 2007.
[11]
Before
the Board, the Applicant conceded that the removal order made against him was
valid in law.
Impugned Decision
[12]
On
December 30, 3008, the Board dismissed the Applicant’s appeal on the ground
that he did not meet his burden of proof to demonstrate that there were
sufficient humanitarian and compassionate grounds to grant him special relief.
[13]
The
Applicant contended that there were sufficient humanitarian and
compassionate grounds to allow the appeal or grant a stay with conditions. The
Minister did not agree and since the Applicant did not take issue with
the legal validity of the removal order, the Board found that the deportation
order was valid in law.
[14]
The
Applicant based his appeal to the Board on the grounds that, taking into
account the best interests of the children directly affected by the decision,
sufficient compassionate and humanitarian considerations warrant relief in
light of all the circumstances of the case, as provided in subsection 67(1)c)
of the Act.
[15]
The
criteria identified in the Board’s decision in Ribic v. Canada (Minister of
Employment and Immigration), No. T84-09623, [1985] I.A.B.D. No. 4 (QL) have
been approved by the Supreme Court of Canada in Chieu v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 and more
recently in Canada (Minister of Citizenship and Immigration)
v. Khosa,
2009 SCC 12, 385 N.R. 206 at paras. 7 and 65, as the proper guides in
determining whether the Board should exercise its discretionary relief under
subsection 67(1)c) of the Act. These factors are not exhaustive and the weight
given to each of them will vary depending on the circumstances of the case.
They are as follows:
a) the
seriousness of the offences leading to the removal order;
b) the
possibility of rehabilitation;
c) the
length of time spent and the degree to which the individual facing removal is established,
in Canada;
d) the
family and community support available to the individual facing removal;
e) the
family in Canada and the
dislocation to the family that the removal would cause; and
f)
the degree of hardship that would be caused to the individual facing
removal to his country of nationality.
[16]
The
Board analyzed each Ribic factor and found the Applicant’s testimony to
be vague and imprecise. There were inconsistencies to which the Applicant did
not provide satisfactory explanations, particularly in relation to his
rehabilitation.
Relevant Legislation
[17]
The
relevant legislation can be found at Annex A at the end of this document.
Standard of Review
[18]
The
Applicant proposes that the Court adopt the standard of review set out in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 but cites Marte v. Canada (Minister of
Citizenship and Immigration), 2009 FC 155 at para. 11, [2009] F.C.J.
No. 200 (QL) to add: “But, on the other hand, a breach of procedural fairness
is cause to set the resultant decision aside, unless there is no possible way
that another outcome could have been reached.”.
[19]
In
Chieu at paras. 90-91, the Supreme Court confirmed that the factors set
out in Ribic remain the proper ones for the Board to consider. The
Applicant submits that the Board must consider any hardships the Applicant
could potentially face if returned to his country and determine if they are
sufficient to alter the previous balance of relevant factors and thereby permit
the Applicant to remain in Canada.
[20]
In
the case at bar, the Board’s decision rests entirely on the exercise of its
jurisdiction pursuant to paragraph 67(1)c) of the Act as to whether there were
sufficient humanitarian and compassionate considerations to warrant special
relief in light of all the circumstances of the case. The Respondent submits
that this Court must determine whether the Board’s decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law in the context of a humanitarian and compassionate
application (Dunsmuir at para. 47; Khosa at para. 59; Sharma
v. Canada (Minister of Citizenship and Immigration), 2009 FC 277, [2009]
F.C.J. No. 339 (QL) at paras. 50-51; Dudhnath v. Canada (Minister of
Citizenship and Immigration), 2009 FC 386, [2009] F.C.J. No. 458 (QL) at
paras. 15-17).
[21]
Recently,
in Khosa, the Supreme Court of Canada held that the applicable standard
of review when reviewing the equitable jurisdiction of the Immigration Appeal
Division (subsection 67(1)c) of the Act) is reasonableness. As a result,
this Court should only intervene if the decision does not fall within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law (Dunsmuir at para. 47).
[22]
As
reiterated by this Court, the Board is entitled to consider the list of factors
set out in Ribic and may also consider other factors and the Board’s
findings regarding humanitarian and compassionate considerations merit curial
deference (Badhan v. Canada (Minister of Citizenship and Immigration),
2004 FC 1050, 132 A.C.W.S. (3d) 1164 at para. 11; Mendiratta v. Canada
(Minister of Citizenship and Immigration), 2005 FC 293, 137 A.C.W.S. (3d)
1001 at para. 18). It is well recognized that the weight given to the evidence
is within the Board’s competence. In Qiu v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 15, I wrote that: and it is not the role of
this Court to second guess the decisions of the Board with respect to the
weight assigned to the various factors considered by it (Qiu v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 15, 226 F.T.R. 178 at
para. 37; see also Gliga v. Canada (Minister of Citizenship and Immigration),
2004 FC 1336, 134 A.C.W.S. (3d) 467).
[23]
While
it is true that the Court should not reweigh the evidence, it must intervene
when reviewable errors are demonstrated. This attracts the reasonableness
standard which will be applied here.
Analysis
[24]
At
paragraph 49 of its decision (page 12 tribunal's record), the Board writes
"No evidence of hardship was submitted to demonstrate that the appellant
would encounter following his deportation". The evidence is to the
contrary. The Applicant provided details of the hardship for him, his wife and
his family they would suffer if he was returned to his country.
[25]
At
paragraph 31 of the decision (page 9 of the tribunal's record) the Board states:
"Because the psychological assessments or letters provided are inconclusive
with regards to the appellant’s problems and possibly of re-offending, the
tribunal concludes that the appellant has not demonstrated, on a balance of
probabilities, that he has taken the necessary steps to ensure that he is on a
rehabilitation path" (my underlining). Again, this is not supported by
the evidence, especially the psychological report from Dr. Valenzuela (page 147
to 153 of the tribunal's record).
[26]
This
report indicates: "He realizes that he has committed an irresponsible act,
one which had the potential to put his life in disarray" (page 149). At
page 152, it can be read: "When asked whether he realized the inappropriateness
of his behaviour he stated that "it was absolutely his fault". One
of the conclusion of the psychologists at page 153 is "On the basis of Mr.
Khan profound regret at his thoughtless act and, considering he has no other
antecedent of having infringed the law anywhere either in Canada or Bangladesh he
is unlikely to be a danger to Canadian society in the sense that it is
improbable that he would again infringe the law or commit a criminal act"
(my underlining).
[27]
The
errors committed by the Board are determinative and the Court is of the opinion
that its intervention is warranted.
[28]
The
parties did not submit any questions for certification and none arise.
Email this Content