Docket: IMM-1231-11
Citation: 2011 FC 1211
Ottawa, Ontario, October 21,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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MITRA DAMION KOONJOO
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board, dated January 31, 2011.
The IAD dismissed the Applicant’s appeal of a Removal Order on humanitarian and
compassionate (H&C) grounds under subsections 67(1)(c) and 68(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicant, Mitra Damion Koonjoo, is a citizen of Trinidad and Tobago. He came to
Canada with his
family at four years old on March 27, 1987. After remaining in Canada illegally,
he and his family were granted permanent residence status in 1992.
[4]
In
September 2007, the Applicant was convicted of aggravated assault and
conspiracy to commit an indictable offence. He was sentenced to two 12-month
terms to be served concurrently, in addition to 63 days in detention.
[5]
Accordingly,
the Applicant was found inadmissible to Canada based on
serious criminality under subsection 36(1) of the IRPA. A removal order was
issued against him.
[6]
The
Applicant maintains contact with his family in Canada. He also
has a 7 year old son, Jayden, who is in the custody of his former girlfriend
and has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).
The Applicant states that he provides child support when he can and sees Jayden
regularly.
II. Decision
[7]
The
IAD dismissed the Applicant’s appeal of his Removal Order, finding that there
were insufficient H&C considerations to warrant special relief.
[8]
In
reaching this determination, the IAD considered a series of relevant factors.
Given the seriousness of the Applicant’s offences, the involvement of firearms
and significance of protecting public safety and security, the Applicant was
found to have a markedly high hurdle to overcome to warrant the exercise of
extraordinary relief.
[9]
This
significant negative factor also flowed into a consideration of the possibility
for rehabilitation. Although the IAD recognized the Applicant attended a range
of courses, it was not persuaded that this amounted to meaningful
rehabilitation. There were instances of violent or threatening actions with
his family. His behaviour regarding past offences was also found to be
inconsistent and not credible.
[10]
With
respect to the Applicant’s degree of establishment in Canada, it was
found that the family had a tumultuous relationship despite their continued contact.
At least one member of the family had limited knowledge of his criminal acting
out. The Applicant’s employment history was not steady and cast doubt on his
level of economic establishment.
[11]
In
addition, the IAD was not convinced that the Applicant’s family would provide
support for his re-integration, noting his brother was a source of his negative
behaviour. It was acknowledged that the family would suffer emotional hardship
if he were removed. His son would suffer undue hardship on an emotional level,
but not financially.
[12]
While
the Applicant would undoubtedly find his life more comfortable in Canada and his
removal to Trinidad
and Tobago
would be challenging, this was not considered undue hardship.
[13]
Finally,
the IAD assessed the best interests of the child. It recognized that this was
a significant factor in the Applicant’s case but found that public safety and
security concerns outweighed it.
III. Issues
[14]
This
application raises the following issues:
(a) Did the IAD err in its
consideration of the best interests of the Applicant’s child?
(b) Did
the IAD err in its assessment of evidence related to the Applicant’s
rehabilitation efforts, family support system and economic establishment in Canada?
IV. Standard
of Review
[15]
The
standard of review for the IAD’s assessment of the evidence in withholding
relief is reasonableness (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at paras 58-59).
[16]
Reasonableness
is “concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” as well as “whether the
decision falls within a range of possible, 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 para 47).
V. Analysis
Issue A: Did
the IAD Err in its Consideration of the Best Interests of the Applicant’s Child?
[17]
There
is no question that the IAD was required to be “alert, alive and sensitive” to
the best interests of the Applicant’s child and accord them “substantial
weight” (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, 1999 CarswellNat 1124 at para 75). I have no reason to
believe that the IAD failed to meet this requirement in the present case.
[18]
The
Applicant submits that the IAD merely mentioned the best interests of the child
and failed to examine them with care and weigh other factors as required by Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002]
FCJ No 457 at para 13. They contend that in the short section devoted
specifically to the best interests of the child the IAD did not make any
mention of Jayden and potential concerns associated with his ADHD. The IAD
also failed to recognize the closeness of the relationship between the
Applicant and his son, suggesting that the letter provided by his former
girlfriend in support was vague. The Applicant acknowledges that there were
references to Jayden in the assessment of other factors but insists this was
mainly cursory and ultimately yielded to security considerations.
[19]
As
the Respondent makes clear, however, the best interests of the child were given
“substantial weight” and examined with care. Admittedly, the section devoted
specifically to best interests of the child does not elaborate on the
evidence. This reflects that much of the evidence was addressed earlier in the
decision. Viewed in their entirety, the IAD’s reasons do consider the
interests of the Applicant’s son.
[20]
As
a prime example, the IAD recognized the emotional impact on the Applicant’s son
of the prospective removal. While the IAD did not find the degree of closeness
between father and son that the Applicant would have preferred, it was open to
the IAD to assess the evidence before it. It considered the Applicant’s claims
that he met with the son every weekend as well as recognition that his visits
were sometimes limited. Reference was also made to a letter from the
Applicant’s former girlfriend stressing that her son needed his father in his
life. The IAD simply found that the letter was short on specifics to reinforce
the extent of contact between them. It also recognized that the Applicant’s
incarceration would have disrupted his relationship with the son.
[21]
Similarly,
the IAD was reasonable in its assessment of the lack of financial dependency of
the son on his father. It noted that the Applicant pays child support when he
can but suggested that his sporadic employment history interfered with his
ability to do so. As a consequence, the removal would not create a financial
hardship.
[22]
The
IAD also made reference to the son’s ADHD. However, there was no medical
evidence of the diagnosis and any particular effects that might be suffered as
a result of the father’s removal. Contrary to the Applicant’s assertion, the
IAD’s inability to give further weight to the son’s ADHD does not make the
determination related to the best interests of the child unreasonable. The
Applicant has the burden of adducing relevant evidence related to the best interests
of the child (see Owusu v Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 1 FCR 635 at para 5).
[23]
Moreover,
it is up to the IAD to determine what weight must be given to the best
interests of the child (Legault, above at para 12). As a result, the
best interests of the child need not be determinative. Despite significant
emotional hardship to the son, IAD was able to balance the best interests of
the child against public safety and security concerns. To find that the latter
outweighed those best interests was within the range of possible, acceptable
outcomes.
Issue B: Did the IAD Err
in its Assessment of Evidence Related to the Applicant’s Rehabilitation
Efforts, Family Support System and Economic Establishment in Canada?
(i) Rehabilitation
Efforts
[24]
The
Applicant claims that the IAD mischaracterized the evidence relating to his
rehabilitation. They discounted his participation in numerous programs to
address the underlying causes of his behaviour and positive assessment of a
probationary officer by focusing on his conviction and what was termed his
“overall history of violent acting out.” Moreover, the Applicant suggests that
the IAD based its determination primarily on two incidents of violent behaviour
– an incident with his former girlfriend in 2003 prior to his conviction and in
which the charges were dropped as well as an outburst with his parents in
2008. He claims that the incident with his parents was related to his drinking
and he voluntarily attended a meeting of Alcoholics Anonymous (AA).
[25]
Nevertheless,
I am persuaded by the Respondent’s submission that the IAD considered all of
the evidence. The IAD described in detail the programs attended and
conclusions of the probationary officer. It proceeded to weigh these positive
factors against negative ones to find that the Applicant had not engaged in
meaningful rehabilitation. The IAD noted that there was no evidence of any
attempts at rehabilitation prior to his sentencing in September 2007. While
the IAD mentioned the two violent incidents, contrary to the Applicant’s claim,
these were not considered determinative.
[26]
A
review of the decision highlights that the critical factor for the IAD seemed
to be the Applicant’s inconsistent descriptions of his criminal conduct
including his willingness to accept responsibility. The IAD did not consider
the Applicant a credible witness because he was selectively candid and
regurgitated much of what he learned in courses. His prospects for
rehabilitation were considered low as he did not have insight into his conduct,
could not identify root causes of his substance abuse, and retained contact
with his brother, the main perpetrator of the crime.
[27]
Given
that the IAD weighed all of these positive and negative factors, it was reasonable
to conclude that the Applicant had not demonstrated meaningful rehabilitation.
While the Applicant would have preferred that the attendance of courses was
given greater emphasis, this Court cannot intervene to reweigh the evidence
considered by the IAD.
(ii) Family
Support System
[28]
The
Applicant submits that the IAD was unreasonable in its assessment of the
availability of a family support system. A letter from the grandmother and the
rest of the family regarding their willingness to assist the Applicant was not
specifically addressed.
[29]
In
addition, the IAD relies on the incident when the Applicant was forced to leave
his parent’s home because of his violent behaviour and return to custody until
the Bail program agreed to supervise him. The Applicant contends that this
blames his parents for being unable to assist him when intoxicated and ignores
two years of support they provided in allowing him to remain clean.
[30]
The
Respondent highlights that the IAD’s conclusion on the presence of a family
support system and impact on relatives of removal was that it represented a
positive factor. The factor was also accorded below moderate weight. This
assessment demonstrates that the IAD considered the evidence in the Applicant’s
favour.
[31]
While
the Respondent acknowledges that the IAD seems to have overlooked the letter
provided by the grandmother and the rest of the family, this would not
undermine the overall conclusion. As part of its more positive determination, the
IAD considered letters from the Applicant’s parents and a family friend stating
their willingness to provide support.
[32]
Moreover,
it was reasonable for the IAD to call attention to an incident when the
Applicant’s parents were unable to assist him. It is not meant to completely
dismiss the support provided by the parents, but is indicative of their
inability to assist him in his most acute crises.
[33]
As
result, I must agree with the Respondent that the IAD’s consideration of the
availability of a family support system and recognition of it as a positive
factor was reasonable. Once again, decisions of weight should not be
overturned by the Court, as the Applicant implies by his submissions.
(iii) Economic
Establishment in Canada
[34]
The
Applicant disputes the IAD’s characterization of his employment history as
“sporadic.” He draws the Court’s attention to his steady job at a factory
prior to a break-up with his former girlfriend. He claims he stopped working
due to stress and depression associated with this break-up. More recently, the
Applicant started a construction job receiving $500.
[35]
I
agree with the Respondent that the determination by the IAD of the Applicant’s
economic establishment was reasonable. There was no letter from the factory
confirming previous employment. For a brief period, the Applicant received
social assistance. Even if the Applicant was found to have jobs in the past,
this would not solidify his economic establishment. The IAD noted that he
lacked skills, personal property or bank account savings. He had no plans for
the future. The IAD considered the evidence before it.
[36]
I
also note that the IAD’s overall conclusion on the establishment issue was that
it represented a neutral factor. Despite the lack of weight attributed to the
Applicant’s economic establishment in Canada given his questionable
employment history, he was given substantial consideration for his time spent
in the country and social establishment.
[37]
The
IAD’s conclusions on rehabilitation efforts, family support system and economic
establishment were based on the evidence before it and within the range of
reasonable outcomes. I am not persuaded that there was a
mischaracterization of that evidence suggesting that the IAD would be compelled
to reach a different conclusion.
VI. Conclusion
[38]
The
IAD reasonably considered the best interests of the Applicant’s child and
assessed the evidence relating to rehabilitation, family support and economic
establishment.
[39]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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