Date: 20110406
Docket: IMM-6713-09
Citation: 2011 FC 425
Ottawa, Ontario, April 6, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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FELIPE AMAGO TABUYO
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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
I.
Overview
[1]
After
emigrating from the Philippines, Mr. Felipe Amago Tabuyo
became a permanent resident of Canada in 1992. Subsequently, he
committed a number of criminal offences and was found inadmissible to Canada on grounds of serious
criminality. He was ordered to be deported from Canada.
[2]
Mr. Tabuyo
appealed to the Immigration Appeal Division (IAD) on humanitarian and
compassionate grounds, but the IAD found insufficient evidence in his favour to
justify overturning or staying the deportation order. Mr. Tabuyo now seeks
judicial review of the IAD’s decision, arguing that the panel applied the wrong
legal test, rendered an unreasonable decision and failed to issue adequate reasons
for its conclusion. In addition, Mr. Tabuyo argues that the absence of a
transcript of the hearing before the IAD prevents meaningful judicial review of
the IAD’s decision. He asks me to overturn that decision and order a new
hearing.
[3]
I can find
no basis for overturning the IAD’s decision and must, therefore, dismiss this
application for judicial review. In my view, the IAD applied the correct legal
test, reached a conclusion that was supported by the evidence and explained its
reasoning adequately. Further, I find that the absence of a transcript, in the
circumstances of this case, did not interfere with Mr. Tabuyo’s application for
judicial review.
[4]
As
mentioned, there are four issues:
1.
Did the
IAD apply the wrong legal test?
2.
Did the
IAD render an unreasonable decision?
3.
Were the
IAD’s reasons inadequate?
4.
Did the
absence of a transcript prevent meaningful judicial review?
II. The IAD’s Decision
[5]
The IAD
was concerned solely with the question of humanitarian and compassionate
grounds, not the legality of the deportation order itself. After setting out
Mr. Tabuyo’s criminal record, the panel noted the factors to be considered, as
set out in Ribic v Canada (Minister of Employment and
Immigration),
[1985] IADD No 4 (QL):
• the seriousness of the offence;
• the possibility of
rehabilitation;
• the likelihood of
re-offending;
• the length of time
spent in Canada and the degree of
establishment here;
• the
degree of community support available to him, and the impact of deportation on
his family; and
• the hardship that return to his
country of nationality would cause him.
[6]
The IAD
then set out the burden of proof on Mr. Tabuyo, namely, the obligation to
establish exceptional reasons why he should be allowed to remain in Canada
(relying on Camara v Canada (Minister of Citizenship and Immigration),
2006 FC 169). From there, after noting that Mr. Tabuyo’s testimony was not
credible, the IAD considered the evidence before it in relation to the
applicable factors. Among its findings were these:
• the offences
with which Mr. Tabuyo was charged were serious and included uttering a forged
document, which is punishable by up to ten years’ imprisonment;
• Mr. Tabuyo’s
criminal record included numerous crimes against business owners, a credit card
company and a former employer which, while not violent, were nonetheless
serious in their nature and gravity;
• the judge
who sentenced Mr. Tabuyo in 2008 to five months’ imprisonment for uttering a
forged document found that there were aggravating factors to consider: Mr.
Tabuyo had not availed himself of opportunities to deal with his gambling
addiction, had breached a conditional sentence, and had committed a breach of
trust;
• Mr. Tabuyo
had failed to follow up with treatment for his gambling addiction when he was
offered it and, although he had attended some counselling sessions for his drug
addiction, he had not made a meaningful attempt to address these problems;
• Mr. Tabuyo
remains a risk to re-offend;
• Mr. Tabuyo
lacked remorse and had not made efforts to provide restitution for the victims
of his crimes;
• Mr. Tabuyo’s
connection to Canada is solely through his family
who, while providing him some financial and emotional support, would not be
seriously affected by his deportation;
• while he has
worked continuously as a hairdresser, Mr. Tabuyo has not made any investments,
acquired any property, become involved in the community, pursued post-secondary
education, or established lasting friendships in Canada; and
• removal from
Canada would be inconvenient for Mr. Tabuyo but would not cause him hardship
given that he spent most of his adult life in the Philippines, speaks the language, and could find a
job there.
[7]
The IAD
also noted the objectives of the Immigration and Refugee Protection Act [IRPA],
SC 2001, c 27, which include the promotion of security by “denying access to
Canadian territory to persons who are criminals or security risks” (IRPA, s. 3(i)
(see Annex); Medovarski v Canada (Minister of Citizenship and Immigration),
2005 SCC 51).
[8]
Taking all
of this into account, the IAD concluded that Mr. Tabuyo had some humanitarian
and compassionate factors in his favour; however, the other factors far
outweighed them. The IAD stated that “[t]he safety and order of the Canadian
public far outweigh any dislocation caused to [Mr. Tabuyo] or his family, by
[his] removal from Canada.” Accordingly, it dismissed the appeal and denied a
stay of removal.
(1) Did the IAD apply the wrong
legal test?
[9]
Mr. Tabuyo
argues that the IAD erred in law by failing to apply the test set out in Jugpall
v Canada (Minister of Citizenship and Immigration), [1999] IADD No 600 (QL),
another decision of the IAD. In Jugpall, the IAD had concluded that the
proper approach is to measure the compassionate and humanitarian factors in the
appellant’s favour against the particular legal obstacle to admissibility that
the person faces. Where the legal obstacle is high, the appellant will have to
show compelling reasons to justify overturning a deportation order. On the
other hand, where the obstacle is relatively minor, less compelling
circumstances will allow the person to remain in Canada.
[10]
In my
view, there is nothing special about the test in Jugpall which would
make it mandatory to apply. Here, the IAD considered numerous factors including
the particulars of the grounds for inadmissibility (serious crimes) and the
humanitarian and compassionate factors in Mr. Tabuyo’s favour (family and work
history). This approach, which the Supreme Court of Canada has characterized as
the correct one (Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3; Canada (Minister of Citizenship and
Immigration) v Khosa,
2009 SCC 12), involves the weighing and balancing of all the relevant evidence
before the IAD. In practice, so long as the relevant evidence is duly considered,
there is likely to be little difference in the outcome whether the IAD uses the
Ribic approach or the Jugpall analysis. The latter approach may,
in fact, be best suited to cases of financial inadmissibility (as in Jugpall
itself) or medical inadmissibility (as in Chauhan v Canada (Minister of
Citizenship and Immigration), [1997] IADD No 2052 (QL)) when the legal obstacles are
sometimes relatively minor and the other factors to be considered will be made
up largely of positive grounds for relief put forward by the appellant. It may
be less suitable for cases involving inadmissibility for serious criminality
where there is likely to be a complex array of circumstances to be considered.
In those cases, like this one, there will usually be multifarious factors to be
analyzed and weighed. A binary analysis, such as that proposed in Jugpall,
will be less appropriate.
[11]
In any
case, I can find no legal error in the approach adopted by the IAD.
(2) Did the IAD render an
unreasonable decision?
[12]
Mr. Tabuyo
argues that the IAD’s decision is unreasonable given that it failed to take
account of the particular circumstances surrounding his crimes. Without that
analysis, the IAD’s characterization of those offences as “serious” is flawed,
he says. In addition, Mr. Tabuyo maintains that the IAD placed too much
emphasis on his gambling and drug addictions; he notes that gambling is legal
and he was never convicted of any drug offences.
[13]
In my
view, the IAD sufficiently considered the nature of the offences. It made
specific reference to the convictions against Mr. Tabuyo, who his victims were,
the absence of violence, and the specific factors that were taken into account
by the sentencing judge. I also note that Mr. Tabuyo has not pointed to any
particular aspects of his offences that the IAD overlooked that might have
advanced his request for humanitarian and compassionate relief.
[14]
I also
find that the IAD did not give undue attention to Mr. Tabuyo’s difficulties
with gambling and drugs. These were relevant to the question of Mr. Tabuyo’s
rehabilitation and likelihood of re-offending, both of which were factors the
IAD had a duty to evaluate. I see no error in the IAD’s treatment of the
evidence in these areas.
[15]
Accordingly,
in my view, the IAD’s conclusion was reasonable in the sense that it was a
defensible outcome based on the facts and the law.
(3) Were the IAD’s reasons
inadequate?
[16]
Mr. Tabuyo
argues that the IAD’s reasons were deficient because they failed to set out the
proper analysis and address all of the relevant circumstances.
[17]
To my
mind, this argument is virtually co-extensive with the submission that the
IAD’s conclusion was unreasonable. Both depend on a finding that the IAD left
out important facts or factors that were relevant to his claim for humanitarian
and compassionate relief. Having reviewed the IAD’s decision and found that its
approach was appropriate and its conclusion reasonable, it follows that its
reasons were adequate.
(4) Did the absence of a
transcript prevent meaningful judicial review?
[18]
Somehow,
due to a technical problem, no transcript of the hearing before the IAD is
available. Mr. Tabuyo argues that the absence of a transcript impedes his
ability to have his case judicially reviewed.
[19]
Certainly,
in some cases, the absence of a transcript can prevent meaningful judicial
review. As I stated in Agbon v Canada (Minister of Citizenship and
Immigration), 2004 FC 356, “where the applicant raises an issue that can
only be determined on the basis of a record of what was said at the hearing,
the absence of a transcript prevents the Court from addressing the issue
properly” (para 3).
[20]
Here,
however, the lack of a transcript has had little effect on Mr. Tabuyo’s
application for judicial review. His application is not based on any allegation
that the IAD erred in its fact finding or credibility determinations. Nor is he
alleging any breach of fairness at the hearing.
[21]
Mr.
Tabuyo’s sole submission is that a transcript is required in order to meet the
Minister’s argument, set out in a further memorandum, that the Board “took into
account the contents of the record before it”. However, the Minister’s
submission merely noted that the IAD had specifically stated that it took into
account the whole of the record, in addition to the testimony before it, when
deciding whether Mr. Tabuyo’s appeal should be allowed. It was clearly not
referring to the transcript in that passage. Further, Mr. Tabuyo has not
pointed to any particular prejudice he has suffered in presenting his
application for judicial review by virtue of not having access to a transcript
of the hearing.
[22]
In the
circumstances, the absence of a transcript has not prevented Mr. Tabuyo from
raising all of the arguments he wished to present on his application.
III. Conclusion and Disposition
[23]
In my
view, the IAD applied the proper test and rendered a reasonable decision, for
which it provided adequate reasons. The absence of a transcript of the hearing
before the IAD had no discernible effect on Mr. Tabuyo’s application for
judicial review. Accordingly, I must dismiss this application for judicial
review.
[24]
Mr. Tabuyo
proposed a question of general importance in respect of Issue (1), above:
Is the Immigration Appeal Division of the
Immigration and Refugee Board, in exercising its discretionary jurisdiction
under the Immigration and Refugee Protection Act sections 67 and 68(1),
required to weigh or balance the degree of compelling humanitarian and
compassionate circumstances on which the individual relies against the nature
and extent of the legal obstacle to admissibility and other circumstances
adverse to the appellant?
[25]
The
Minister opposes the certification of the question given that the test employed
by the IAD here has been endorsed by the Supreme Court of Canada. I agree that
the proposed question does not raise a serious matter of general importance in
light of the applicable Supreme Court of Canada case law (Chieu and Khosa,
above), and will, therefore, not certify the question.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
No
question will be certified.
“James W.
O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Objectives
— immigration
3. (1)
The objectives of this Act with respect to immigration are:
…
(i) to promote international justice and security
by fostering respect for human rights and by denying access to Canadian
territory to persons who are criminals or security risks;
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Objet
en matière d’immigration
3.
(1) En matière d’immigration, la présente loi a pour objet :
[…]
i) de promouvoir, à l’échelle
internationale, la justice et la sécurité par le respect des droits de la
personne et l’interdiction de territoire aux personnes qui sont des criminels
ou constituent un danger pour la sécurité;
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