Date: 20110224
Docket: IMM-1312-10
Citation: 2011
FC 220
Ottawa, Ontario,
February 24, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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KERWIN DIZON CUNANAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review
of a decision of the Immigration Appeal Division of the Immigration and Refugee
Board (the Board), dated February 25, 2010, wherein the Board dismissed an
appeal from a removal order.
[2]
The
applicant requests that the decision of the Board be set aside and the matter
be referred back for redetermination by a differently constituted.
Background
[3]
Kerwin
Dizon Cunanan (the applicant) was born on September 4, 1987. He is a citizen of
the Philippines. He came to Canada on June 4, 2002 as a
dependant child to his father who was sponsored by his mother as a member of
the family class. He resides with his parents, sister and brother and maintains
that they have a close relationship.
[4]
The
applicant attended high school in Canada but did not complete Grade 12. He has no other
formal education or training.
[5]
The
applicant began taking and selling drugs at the age of 17. These included
marijuana, cocaine and ecstasy.
[6]
On
January 16, 2007, the applicant and five other people broke into a known drug
dealer’s apartment. The applicant recruited two of the members of this group
for the act. They assaulted the victim, tied him up and left him and his
girlfriend in the bathroom. The group carried a bb gun with them at this time.
They stole $600 in cash, a videogame machine and a quantity of marijuana.
[7]
The
applicant was subsequently arrested while on bail for the above offences. His
mother was his surety at the time and he was living with his family. He was
found in possession of nine grams of cocaine.
[8]
The
applicant was charged with robbery, break and enter, failure to comply and
possession of a controlled substance. He pled guilty and was convicted on July
21, 2008. He then testified against his co-accused. He was sentenced to 23
months in jail and three years probation, which he began serving on August 19,
2008.
[9]
On
June 10, 2009, the applicant was denied parole because of issues concerning
lack of employment and education, previous choice of associates and the
seriousness of the offence. He was subsequently released from detention on
December 21, 2009 and is currently on parole.
[10]
The
applicant was served with a valid removal order as a result of his conviction
for these offences.
Board’s Decision
[11]
As
there was no issue as to the validity of the order, the Board was to determine
whether there were sufficient humanitarian and compassionate (H&C) considerations
to warrant relief. The Board found that the onus was on the applicant.
[12]
The
Board found the applicant to be mostly credible but found that he failed to
provide sufficient evidence on why he is engaged in rehabilitation and what he
learned from his negative experience.
[13]
The
Board reviewed and weighed the Ribic factors outlined in R. v. Ribic,
[1985] I.A.B.D. No. 4 and affirmed in Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339. These
factors include:
1. The seriousness of
the offence leading to the removal order;
2. The possibility of
rehabilitation;
3. The length of time
spent and the degree to which the individual facing removal is established in Canada;
4. The family and
community support available to the individual facing removal;
5. The family in Canada and the
dislocation to the family that removal would cause; and
6. The degree of
hardship that would be caused to the individual facing removal to his country
of nationality.
Seriousness of the Offence
[14]
The
Board found the offence to be very serious evidenced by the 23 months and 10
day custodial sentence he was given, as well as the maximum life sentence for
the offence. The Board found that the applicant provided people to participate
in the offence and because of this, he benefited disproportionately from the
proceeds of the crime. The Board found that a bb gun was involved in the
offence which was pre-meditated and that bringing this gun to the victim’s
house put the applicant and the public at risk.
[15]
The
Board also noted that the applicant failed to comply with his recognizance and
was found in possession of a controlled substance while on bail. The Board
noted that the applicant was a multiple-substance user who had a $200 a day
drug habit which began in high school. The Board noted that the applicant
previously trafficked drugs in order to support this habit. The Board did not
find the applicant’s offence to be an isolated one. Rather, it found that his
substance abuse and criminal behaviour is escalating. The Board found this to
be a negative factor.
Possibility of
Rehabilitation
[16]
The
Board found that the possibility for rehabilitation was low. The Board noted
that the applicant has attended various substance abuse programmes and that he
has strong family ties. However, the Board found that the applicant did not
provide evidence that he is aware of the causes of his substance abuse and
criminality. It found that the applicant had used drugs after attending substance
abuse programmes in the past. The Board noted that the applicant had told his
addiction counsellor that he remained abstinent since March 2007 but that he
testified that he had stopped using drugs once he was in detention. The Board
found that the applicant did not spontaneously express remorse for the offence.
The Board gave no weight to his guilty plea.
[17]
In
addition, the Board found that the applicant’s likelihood to re-offend is high.
He was not deterred by the possibility of losing his liberty and re-offended
while out on bail. The Board found that he is not aware of the primary reasons
for his criminal act or the cause of substance abuse.
The Board found this to be a negative
factor.
Length of Time and Establishment
in Canada
[18]
The
Board found that the applicant has been in Canada for eight
years but has not integrated well into society. This, coupled with the
seriousness of his negative behaviour, resulted in the Board giving this little
or no positive weight. The Board did consider the applicant’s family in Canada to be a
positive factor for establishment. The Board found that the applicant has not
completed high school, has no job, no vocational training, no assets, no bank
account and no savings. The economic factor does not favour the applicant. As
such, the Board found this factor overall to be neutral.
Family and Community
Support and Impact on Family if Removed
[19]
The
Board was not persuaded that the family support for the applicant is strong enough
to be a veritable help towards rehabilitation or to prevent future criminal
acting out. The Board noted that the applicant had immediate family and
extended family in Canada who care for him and with whom he attends
church. However, the Board found that this was the case during his substance
abuse, criminal activity and non-compliance with his recognizance. In addition,
the applicant’s mother was the surety when the applicant re-offended during his
bail. The Board gave this moderate positive weight.
[20]
With
regards to hardship on the family members, the Board recognized that the
emotional hardship would be disproportionate. However, the Board noted that the
applicant has been removed from his family for the past year during his
incarceration. It further found that the family has family in the Philippines and can
communicate with the applicant electronically and visit him there. The Board
found that there was not sufficient evidence that anyone in the applicant’s
family relies on him for financial support. The Board found this to be a
neutral factor.
Hardship if Returned to
the Philippines
[21]
The
Board did not find this to be a positive factor. The applicant was born and
grew up in the Philippines and emigrated to Canada at age 15.
He is fluent in the local language. He has some family still there and while he
has no discernable skills, this would not put him at a disadvantage compared to
finding a job in Canada. The Board did not find that there would be
undue or disproportionate hardship.
[22]
Based
on the weighing of all of the Ribic above, factors, the Board upheld the
deportation order.
Issues
[23]
The
applicant submitted the following issues for consideration:
1. Is there any
evidence which supports the applicant’s submissions with respect to the issue
set out below and are any of these issues either singly or in combination,
serious ones?
2. Did the Board err in
fact, err in law, breach fairness, raise an apprehension of fairness, in
dismissing the appeal of the removal order against the applicant?
[24]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board base
its decision on an erroneous finding of fact that it made without regard to the
material before it?
3. Did the Board err in
law by not notifying the applicant of a discrepancy between his oral and
documentary evidence?
Applicant’s Written Submissions
[25]
The
applicant submits that the Board based its decision on numerous erroneous
findings of fact.
[26]
The
applicant submits that the Board erred in finding that anyone could have been
wounded with the bb gun used by the applicant, because it was not loaded. The Board
erred in finding that the crime was not isolated because before the conviction,
the applicant had never engaged in violent acts, act with weapons, theft or
robbery. The Board erred in finding that the applicant’s remorse was not
spontaneous. It further erred in finding that the applicant organized the
robbery as he testified that a friend organized the robbery and asked him to
bring two people. The Board further erred in the reason it found for why parole
was denied. Parole was only denied because the applicant could not prove he had
a job if he was released.
[27]
The
applicant submits that the Board erred significantly in finding that the
applicant had a $200 per day drug habit. In fact, the applicant testified it
was $200 per week. This error affected the Board’s findings in several areas:
it caused the Board to find that the family support was a less positive factor;
it affected the Board’s assessment of how the applicant would be assisted by
rehabilitation programs; and because $200 per day far exceeded his income, the Board
took the view that the applicant was supplementing his income by illegal and
violent means.
[28]
Further,
the applicant submits that the Board erred when it gave no weight to the fact that
the applicant pled guilty and testified against co-accused for the Crown. The Board
misconstrued the evidence in stating that the applicant recruited people and
then reported them to the police. In fact, the applicant testified that he
cooperated with the police and then agreed as a condition of sentencing to
testify at the trials of the co-accused. The applicant’s cooperation with the
Crown shows that the applicant is willing to comply with Canadian law and was
relevant to rehabilitation.
[29]
Finally,
the applicant submits that the Board erred in law by not informing him of the
discrepancy between a letter from his addiction counsellor and his testimony
regarding when he stopped using drugs. The letter states that the applicant was
abstinent from drugs from March 2007, but the applicant testified that he
abstained from August 2008 when he was incarcerated. The Board was required to
put this discrepancy to the applicant for a response.
[30]
These
wide-ranging errors resulted in an unreasonable decision by the Board.
Respondent’s Written Submissions
[31]
The
respondent submits that the Board’s power to grant relief from a removal order
is fact-dependent and policy-driven. Board members have considerable expertise
in determining appeals under the Act. Because of the broad scope of the
discretion, the reasonableness standard of review applies. This standard does
not allow for any reweighing of evidence by this Court.
[32]
The
respondent submits that there were no material errors in the Board’s decision.
[33]
Regarding
the bb gun, the Board was not concerned with whether the bb gun was loaded or
not. The Board found that the applicant lacked concern for the severe violence
that could have occurred in the apartment where the victim lived. This was
based on the nature of the victim; a known drug dealer, not on the presence, or
lack of, bullets in the bb gun.
[34]
Regarding
the discrepancy in the drug habit of $200 per day versus per week, the
respondent submits that this was not a material error. A $200 per week drug habit
was still serious enough to motivate home invasion. The Board’s concerns were
about escalating behavior of the applicant due to substance abuse which is not
diminished if he spends $200 per week.
[35]
The
respondent submits that there was no error in finding that the criminality was
not isolated. The Board looked at the facts: the robbery was pre-meditated, the
applicant recruited two people, the applicant began using drugs well before the
robbery and trafficked in drugs to support his addiction and that he was
re-arrested for possession of cocaine while on bail. To find that the robbery
was not an isolated crime was reasonable.
[36]
The
respondent submits that there were no errors in not giving weight to the
applicant’s cooperation with the Crown. The Board assessed the applicant’s
behavior and found that recruiting people for a criminal scheme and then
reporting their participation to police cannot be an act worthy of credit in an
H&C analysis or a mitigating factor so the Board gave it no weight which
was within its scope to do.
[37]
Finally,
the respondent submits that there was no error in the Board’s finding that the
applicant’s rehabilitation programs did not satisfy the parole board that the applicant
would not be a risk. Parole was denied because there was no confirmation of
school/work/counseling so the applicant would be an unmanageable risk.
[38]
The
respondent submits that the Board duly considered the Ribic above,
factors but felt that the prospects for the applicant’s rehabilitation were not
such that relief was warranted. The Board took all of the evidence into
consideration when considering each factor and it determined that the possible
threat to himself and the public, if the applicant had a relapse, was high. This
decision fell within the reasonable and acceptable outcomes and the Court should
not interfere.
[39]
The
respondent submits that there was no breach of procedural fairness. The Board
was not required to put to the applicant for clarification, the areas of his
testimony which it found unconvincing. In addition, the fact that there was a
discrepancy in the applicant’s testimony and the letter from the addiction
counselor was not central to the Board’s decision. There was also other
evidence before the Board which supported the applicant’s testimony that he had
not been abstinent since 2007. Specifically, his arrest for possession in March
2008.
Analysis and Decision
[40]
Issue
1
What is the appropriate
standard of review?
Recognizing
that hardship may come from removal, Parliament provided the Board with the
power to grant exceptional relief pursuant to paragraph 67(1)(c), of the Act.
Paragraph 67(1)(c) requires a fact-dependent and policy-driven assessment by
the Board. Board members have considerable expertise in determining appeals
under the Act. The Act confers a broad scope of discretion on the Board and a
high level of deference is owed to it. The decision should therefore be
reviewed on the standard of reasonableness (see Khosa above, at
paragraphs 57 to 60).
[41]
The
standard of reasonableness does not allow this Court to reweigh the evidence
that was before the Board. Similarly, the Court cannot find that it was
unreasonable for the Board to weigh one factor more heavily than another. The Court
is only concerned with “.
. .the existence of justification, transparency and intelligibility within decision-making
process is.” The Court should only intervene if the decision falls outside of
the “. . . range of acceptable outcomes, which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47).
[42]
Issue
2
Did the Board base its
decision on an erroneous finding of fact that it made without regard to the
material before it?
A review of the file shows that
the Board made an error in relation to the extent of the applicant’s use of
drugs. The Board stated that the applicant’s drug habit was costing him $200
per day. However, the evidence before the Board was that the applicant’s drug
habit had been costing him $200 per week. In my view, that is a significant
difference.
[43]
The
extent of drug use was relevant to the Board’s assessment of the chance of
successful rehabilitation of the applicant. This is evidenced by the Board’s
remarks at paragraph 19 in the decision:
To iterate, he had a $200-a-day habit,
which as the panel understands it is very dependent.
At paragraph 27 of the decision:
The panel is not persuaded that the
programmes he has taken are sufficient to deal with his extensive and
multiple-substance abuse.
And at paragraph 29 of the decision:
Where the Appellant is on the spectrum of
the possibility of rehabilitation must be evaluated in the context of the
severity of his criminal acting out, his serious drug abuse issues, his
motivation for rehabilitation, the length of time he has been engaged in
programme, the duration of the programmes, not knowing or addressing the cause
of his anti-social behaviour for such a long time, and extent of his family and
community support, to name the most importing elements. . . .
[Emphasis added]
[44]
I
have no way of knowing how or to what extent the correct evidence of drug usage
would have effected the Board’s decision in this case. That decision is to be
made by the Board, not the Court.
[45]
As
a result, I am of the view that this was a material error of fact which
requires that the Board’s decision must be set aside.
[46]
The
applicant has raised other issues but I need not deal with them because of my
finding on Issue 2.
[47]
The
application for judicial review is therefore allowed and the decision of the
Board is set aside and the matter is referred to a different panel of the Board
for redetermination.
[48]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[49]
IT IS
ORDERED that the
application for judicial review is allowed, the decision of the Board is set
aside and the matter is referred to a different panel of the Board for
redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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67.(1) To allow an appeal, the Immigration
Appeal Division 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.
72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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67.(1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
. .
.
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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