Date: 20070516
Docket: IMM-4173-06
Citation: 2007 FC 523
Ottawa, Ontario, May 16,
2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
RAMANAN
RAJAGOPAL
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Ramanan Rajagopal (the
applicant) seeks judicial review of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board (the “IAD”) dated July 6, 2006
which dismissed an appeal of his deportation order on humanitarian and compassionate
("H
& C") grounds under paragraph 67(1)(c) and subsection 68(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[2]
The applicant is a 29 year old
citizen of Sri Lanka who came to Canada on May 30, 1999. He was determined to be a Convention
refugee but did not acquire Canadian permanent resident status.
[3]
On October 27, 2003 the applicant
was convicted of sexual assault, contrary to subsection 271(1) of the Criminal
Code, in relation to an incident that occurred on May 25, 2001. The
applicant received a suspended sentence, 18 months probation and a discretionary
firearm prohibition order for five years. The applicant also has a minor
related conviction from 2003 for breach of a recognizance related to being in
an area where he was prohibited to be while on bail.
[4]
The applicant was ordered deported
from Canada because he was found to be a person whom there are reasonable grounds to
believe is a foreign national who is inadmissible on grounds of serious
criminality under paragraph 36(1)(a) of the Act. The
applicant does not challenge the legal validity of the deportation order.
[5]
The applicant was ordered removed
from Canada in March of 2005; he filed an appeal with the IAD in April of 2005. On
July 4, 2005 counsel for the Minister filed written submissions with the IAD
and recommended that the applicant’s removal order be stayed for 4 years with
conditions.
A member of the IAD denied the Minister’s
request for a stay and the appeal was sent to the IAD panel which heard the
appeal. The applicant and his wife appeared as witnesses at the appeal hearing
on May 10, 2006.
[6]
On July 6, 2006, the IAD dismissed
the appeal on the grounds that the case did not merit special relief under
subsections 67(1) or 68(1) of the Act. Leave for judicial review was granted on
February 16, 2007.
DECISION
[7]
In reaching this conclusion, the
IAD recognized that the onus is on the applicant to show why he should not be
removed from Canada. The IAD also outlined a list of non-exhaustive
factors (hereafter the “Ribic factors”) set out by the Court in Ribic
v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D.
No. 4 (QL) and
confirmed in Chieu v. Canada
(Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 40, that should be considered
when the IAD exercises its discretionary jurisdiction in removal order appeals.
These factors are:
a)
the seriousness of the offence or offences leading to the removal order;
b)
the possibility of rehabilitation, or , alternatively, the circumstances
surrounding the failure to meet the conditions of admission;
c)
the length of time spent, and the degree to which the appellant is
established in Canada;
d)
the family in Canada and the dislocation to the family that removal
would cause;
e)
the family and community support available to the appellant, and
f)
the degree of hardship that would be caused to the appellant by the
appellant’s return to his or her country of nationality.
[8]
The IAD also recognized that the
weight given to the factors can vary depending on the circumstances of the
case. The IAD stated that it had taken all of these things into account, in
addition to the testimony and documentary evidence presented, and the
submissions of the parties in determining the present appeal. The IAD focused
in particular however on the second factor: rehabilitation.
[9]
In setting out its reasons, the
IAD referred to the police occurrence report (hereafter “police report”) that
contained the allegations of sexual assault against the applicant. The police
report indicated that the accused had boarded a bus at the same station as the
victim of the sexual assault, and then got off at the same stop. He then
exposed himself to her, grabbed her arm and pushed her, trying to get her to go
behind a plaza. He kept asking her to perform oral sex, and attempted to
prevent her from leaving. He eventually followed her home only to be chased
away by the victim’s father.
[10]
The IAD noted that the applicant had
testified to a very different version of events. The applicant stated that the
victim had approached him as a sex trade worker offering sex for cash, that he
only touched her after she took his money, and that she then reneged on the
sex. The IAD concluded however that as “the
appellant had pled guilty to the charge as described in the report” it
preferred the report’s description of events over the testimony of the applicant
as to the truth of what happened, on a balance of probabilities. The IAD
further noted that the panel could not go behind the conviction. The IAD concluded
that the criminality at issue in the case was serious.
[11]
The IAD stated that it also placed
“little weigh on the testimony and evidence of the appellant’s wife” regarding
the applicant’s rehabilitation, her support and the support of her family, in
light of the short duration of their relationship and in light of the fact that
it had found that
the applicant had told her the same story
that the IAD had found to be false.
[12]
For essentially the same reason
the IAD went on to state that it had placed little weight on the documentary
evidence of the applicant’s sister, the Tamil Eelam Society of Canada, and the applicant’s
“temple” that spoke to the applicant’s rehabilitation and community support.
The IAD noted that the authors of these documents were not called as witnesses,
and in light of the untrue story told by the applicant to his wife, the IAD
felt it had good reason to believe that the same story had been told to these individuals
as well. Therefore it had good reason not to place weight on their evidence in
the absence of their testimony.
[13]
The IAD went on to confirm that it
had taken into consideration the fact that the applicant only had one serious conviction
and that several years had passed without the commission of another offence.
However “given his refusal to admit the truth of the sexual assault, and in
light of all the above” the IAD found that the applicant was not remorseful and
therefore remained at risk of re-offending, noting that it was also not
persuaded that he
had reliable family or community support
in Canada.
[14]
The IAD further indicated that the
applicant was not established in Canada. It highlighted that since his arrival the applicant had
not become a permanent resident, he had been on social assistance, and his work
history which was not steady had not been established by evidence. The IAD went
on to note that there was also no evidence that the best interests of a child
would be directly affected by the decision, and though the applicant was a Convention refugee, as a likely country of
removal had not been established, foreign hardship was also not at issue.
[15]
The IAD concluded that all of the
above weighed in the negative with respect to the H & C balance. The IAD found only two positive H & C factors favoured the applicant’s case. It accepted that the applicant’s wife and her family,
and the applicant’s family in Canada would suffer emotional hardship if he was removed,
and that the applicant would suffer the same if separated from them. However
the IAD found that it would be unlikely that the applicant’s wife would feel
that she was being forced to leave Canada as a result of its decision. The IAD concluded as a
result that the H & C balance tipped negative. The IAD further found that as the overall H & C
balance weighed “so negative” it did not merit the granting of a stay, which is
“special relief”. As a result “special relief” was not granted under subsections
67(1) or 68(1) of the Act.
ISSUES:
[16]
The applicant has raised the
following issues in the present case:
1. Did the IAD fail to properly consider the factor of
rehabilitation in the circumstances of this case?
2. Did the IAD err by not granting a stay?
3. Did the IAD ignore or misconstrue evidence properly
before it, and/or make improper inferences in light of its treatment of the
police report?
STATUTORY FRAMEWORK:
[17]
Subsections 67(1) and
68(1) of the Act provide as follows:
|
67. (1) To allow an appeal, the Immigration Appeal Division
must be satisfied that, at the time that the appeal is disposed of,
(a) the decision
appealed is wrong in law or fact or mixed law and fact;
(b) a principle of
natural justice has not been observed; or
(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.
|
67. (1)
Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
a) la décision attaquée est erronée en droit,
en fait ou en droit et en fait;
b) il y a eu manquement à un principe de
justice naturelle;
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.
|
|
68. (1) To stay a removal order, the Immigration Appeal
Division must be satisfied, taking into account the best interests of a child
directly affected by the decision, that sufficient humanitarian and
compassionate considerations warrant special relief in light of all the
circumstances of the case.
|
68. (1)
Il est sursis à la mesure de renvoi sur preuve qu’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.
|
ANALYSIS
Standard of
Review
[18]
As asserted by the respondent,
there are a number of recent cases that have utilized the patently unreasonable
standard in assessing the IAD’s discretion under subsections 67(1) and 68(1) of
the Act. For example, as was asserted in Nguyen
v. Canada (Minister of Citizenship and Immigration), 2006 FC 979:
32 The
Federal Court has stated that the statutory discretion of the Immigration
Appeal Division under subsections 67(1) and 68(1) of IRPA is broad, and that a
court will not interfere with the exercise of discretion provided that the
discretion has been exercised in good faith and has not been influenced by
extraneous or irrelevant considerations (see Mand v.
Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 016, 2005 FC 1637 at paragraph 13). In Capra v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1605, 2005 FC 1324 at paragraph 6, Justice Blais
held that in cases such as these, the standard of review is patent
unreasonableness. Similarly, Justice Russell in Canada
(Minister of Citizenship and Immigration) v. Bryan,
[2006] F.C.J. No. 190, 2006 FC 146 at paragraph 43 held that the
standard of patent unreasonableness is the appropriate standard of review for
the Immigration Appeal Division's exercise of discretion under subsection 68(1)
of IRPA. I agree with this finding. I will therefore apply the standard of
patent unreasonableness to the decision under review.
[19]
That being said, recently, Décary
J.A. speaking for the majority of the Federal Court of Appeal in Khosa v.
Canada (Minister of Citizenship and Immigration), 2007 FCA 24 at para. 12 [Khosa]
found that the appropriate standard of review to apply when the Ribic
factors are considered is reasonableness, “essentially because the decision is
not protected by a full privative clause, is not a polycentric one, relates to
human interests and does not, in so far as the possibility of rehabilitation
factor is concerned, engage the Board's expertise”. Desjardins J.A. offered a
strong dissent on this point, however, arguing that considering the expertise
of the IAD, the nature of the question, and the wide discretion granted by the
legislation to the IAD, that the standard of patent unreasonableness should apply:
Khosa, above at para. 40. Leave to appeal has been filed with the
Supreme Court of Canada with respect to this case.
[20]
In
light of the deference I owe to the Court of Appeal, I will apply the standard
of reasonableness in the present case.
1. Assessment
of the Rehabilitation Factor
[21]
The
applicant argues that the IAD has erred in failing to consider important factors in assessing the applicant’s
rehabilitation, and that it has therefore rendered an unreasonable decision.
[22]
The applicant asserts that the IAD
should have specifically considered the fact that the applicant was given a
suspended sentence; that more weight should have been given to the fact that he
only had one serious conviction and that it had occurred five years before the
hearing; and that the applicant testified to being remorseful, being determined
to change his life, and that his marriage was an important and positive factor.
The applicant asserts that the IAD also failed to
consider evidence that the applicant was undergoing active counseling related
to the criminal conviction; that the applicant had renewed his interest in God;
and was engaged in religious and volunteer activities.
[23]
In addition, the applicant asserts
that the IAD erred in dismissing the testimony of his wife in part because of
the short duration of their relationship. The IAD also erred in dismissing her
testimony on the basis of its findings regarding the truth of the factual basis
with respect to the sexual assault. As opposed to merely finding that she had
not been told the truth, and that because she did not alter her testimony as to
the applicant’s rehabilitation when confronted with the truth during cross
examination, her testimony was “unlikely, self-serving, and/or naïve”, the IAD
should have taken into consideration the context and totality of her evidence. The IAD should have considered the fact that the applicant’s wife had a credible background,
clearly knew the applicant well, remained committed to making a positive
difference in the applicant’s life, and was consistent in her assertions that
he had been rehabilitated.
[24]
The applicant further argues that
the IAD erred in dismissing the documentary evidence submitted by the
applicant’s sister, the applicant’s temple, and the Tamil Eelam Society that
supported his claims of rehabilitation, community and family support. The sole
basis for rejecting this evidence was the IAD’s assumption that as it had found
that the applicant had told his wife the same story it had been found to be
untrue, these individuals were likely also told the same story. In the absence
of their testimony, the IAD therefore had good reason not to place much weight
on the documentary evidence. According to the applicant, this line of reasoning
makes it clear that nothing short of the applicant admitting the content of the
police report could have made a difference. The IAD, essentially, became fixated
on the applicant’s refusal to accept the content of the police report as
correct, to the exclusion of all other evidence indicating rehabilitation.
[25]
The
respondent asserts that the IAD’s findings were open to it on the evidence
before it, and that it took into consideration all the necessary factors in the
circumstances of the case.
[26]
In Khosa, Décary J.A.,
speaking for the majority of the Court of
Appeal stated the following with respect to how a Board should assess rehabilitation:
11. In cases where…a Board may
question a finding of rehabilitation made by a provincial criminal court, the
Board should, at a minimum, take into consideration the factors
generally associated with the criminal law concept of rehabilitation. In
the case at bar this would include the absence of a criminal record (other
than the one at issue), the absence of previous convictions for dangerous
driving, the response to community supervision and the recent history of the
offender, including the upgrading of his education and his work record. …
[emphasis mine].
[27]
Many
of these factors were in fact considered by the IAD in the present case. For
example, with respect to work history, the IAD recognized in its reasons though
not necessarily in the specific context of discussing rehabilitation, that the accused had been on welfare during his time
spent in Canada, that his work history was sporadic, and was not established on
the evidence, In assessing rehabilitation in particular, the IAD also
specifically took into consideration the fact that the applicant had had only
one conviction and that several years had passed without the commission of
another offence. The IAD also stated that it took into consideration the
testimony of the applicant’s wife, and the documentary evidence provided by the
applicant’s sister, the Tamil Eelam Society of Canada, and the applicant’s temple,
with respect to his rehabilitation and community support. The IAD determined
however that little weight was to be accorded to this evidence, in light
of its findings regarding the truth of the factual basis of the sexual assault
and the fact that the applicant had not been honest to these individuals about
it.
[28]
Generally
speaking the applicant’s argument can be characterized as taking issue with how
the IAD assigned weight and assessed the various pieces of evidence before it. Considering
the fact that the testimony given by the applicant and his wife was at best
confusing as to what exactly transpired with respect to the events leading to
his criminal conviction, it was open to the IAD to make a finding with respect
to what it thought had occurred, and what it thought the applicant’s wife had
actually been told. It was also open to the IAD to take this particular finding
into account when assessing the weight to be given to the other documentary
evidence before it.
[29]
That
being said, though the conclusions of the IAD were open to it, in light of the
emphasis placed by the IAD on what it saw as the truth of the events underlying
the criminal offence in assessing and weighing all of the evidence, the
reasonableness of its analysis turns on whether its underlying assessment in
this regard can be said to have been properly made. As seen below, the
application is successful on this ground.
2. Assessment
of Whether to Grant a Stay
[30]
According to the applicant, if the
applicant requests a stay as is the case here, the IAD must consider the
request and give “good” reasons as to why it has refused it. As noted at
paragraph 14 of Lewis v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. 1227 (T.D.)(QL): “if a stay is requested and if the facts suggest
that there is reason to consider a conditional stay, then, if reasons are given
pursuant to section 69.4(5) of the Act, the applicant is entitled to know why a
stay was denied”.
[31]
The applicant asserts that in the
present case the IAD has failed to provide any meaningful analysis or reasons
for its refusal to grant a stay, the extent of its attention being limited to a
sweeping conclusion. As was noted in Archibald v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 747 (T.D.)(QL) at paragraph 11: “a significant factor
in assessing whether or not to stay the deportation order is an evaluation of
the risk which exists that the applicant will re-offend”. In the present case,
the applicant asserts that the IAD’s sole finding in this regard was based on
its further finding that the applicant was not remorseful, which was in turn was
based on the misconstrued nature of the police report. Therefore the IAD failed
to consider all of the evidence which indicated that the applicant would likely
not re-offend.
[32]
The respondent asserts that the
IAD did not err in refusing to grant a stay, and that it gave clear reasons for
the refusal. The respondent asserts that the case law indicates that the
applicant is entitled to know why the IAD denied a stay but that it does not
support the assertion that the IAD must issue additional or special reasons in
this regard.
[33]
In dealing with the issue of
whether or not to grant a stay, the IAD stated that “[s]tays of deportation are, by their very nature,
special relief. However, as I have found the overall humanitarian and
compassionate balance to weigh so negative as not to merit special relief.
Special relief is therefore not warranted. It is therefore not appropriate for
me to grant a stay”. The IAD went on to note “[f]or all these reasons, I find
that the case does not merit special relief under sections 67(1)(c) or 68(1)”
of the Act.
[34]
It
is clear that the IAD’s analysis as a whole was meant to apply to its decisions
with respect to both paragraph 67(1)(c) and subsection 68(1) of the Act. The
IAD therefore did not merely state a conclusion with respect to the stay issue.
[35]
That
being said, because the IAD’s decision clearly rests on the totality of its
analysis, the same issue highlighted in issue 1 applies: the reasonableness of
the IAD’s conclusion with respect to whether or not it should grant a stay
ultimately turns on the third issue raised by the applicant in this case, which
I have discussed below.
3. Assessment
of the Police Report
[36]
As was highlighted by the Court in
Balathavarajan v. Canada (Minister of Citizenship and Immigration), 2006 FCA 340 at para. 12:
12 Section
175 of the IRPA permits the IAD to receive and base a decision on evidence
adduced in immigration proceedings that it considers to be credible and
trustworthy in the circumstances. The evidence can sometime be tenuous and
may include evidence of informants: Canada (Minister of Citizenship and Immigration) v.
Thanabalasingham, [2004]
3 F.C.R. 523 (T.D.), at para. 107; aff'd, [2004]
3 F.C.R. 572 (C.A.). It is up to the IAD, not the Court to decide
the weight to be given to the evidence.
[emphasis
mine]
[37]
Further, in Huang v. Canada (Minister of Citizenship and Immigration), [1992] F.C.J. No. 472 (C.A.)(QL) the Court found that the then Appeal Division of the Immigration and
Refugee Board had not committed a reviewable error in receiving and relying on
evidence that could be described as “double hearsay”. The Court found that the
Board was “entitled to hear and act on it if it found it be relevant, credible
and trustworthy”.
[38]
The Court has also
accepted that the IAD has a wide ambit to determine underlying facts to an
offence, even to the extent that it can find that an applicant is innocent in
the face of a guilty plea: Canada (Minister of Citizenship and Immigration)
v. Hua, 2001 FCT 722 at para. 34.
[39]
Clearly it is
open to the IAD to determine the weight to be given to evidence before it, and
to rely on that evidence it if is found to be relevant, credible and
trustworthy. It was also certainly open to the IAD to reject the applicant’s
explanation of the facts underlying his offence in favor of those found in the
police report.
[40]
That being
said, the applicant in the present case is arguing that the IAD erred because
it mischaracterized the evidence, by proceeding on the incorrect assumption
that the report set out the facts on which the plea was based. In support of
this contention, the applicant points to the fact that after describing the
applicant’s version of events the IAD went on to state: “[h]owever, as the
appellant pled guilty to the charge as described in the report, I find that
I prefer the above over the testimony of the appellant and that it is the truth
as to what happened, on a balance of probabilities” [emphasis mine]. The IAD
further stated that it could not go behind the conviction.
[41]
At first
glance, it is not clear whether the IAD’s statement emphasized above is a
finding of fact or an assumption that the plea of guilty must necessarily
correspond to the facts as alleged in the police report.
[42]
To meet the
reasonable standard the reasons of the IAD as a whole must withstand a somewhat
probing examination. As I have noted above however, the reasonableness of the
IAD’s decision relies so heavily on this one finding, the reasonableness of the
decision really turns on this one underlying point.
[43]
When this
particular statement is examined, it appears that the emphasized portion is the
rationale for why the IAD determined that it preferred the reports
content over the testimony of the applicant. Though it would have been open to
the IAD to make this finding, it is inappropriate for it to have been
assumed. This is a mischaracterization of the nature of the police report. The
report contains allegations as the officer recorded them upon investigating the
complaint, not the findings of fact reached by the court that convicted the
applicant and imposed sentence. Though the IAD could have referred to evidence
or testimony to support an argument that on a balance of probabilities the
police report likely characterized the underlying facts of the offence in an accurate
manner, the IAD did not do so. It is not open to the Court to revisit or
re-weigh the evidence in order to substantiate the findings of the IAD.
[44]
As was noted
in Law Society of New Brunswick v.
Ryan, [2003] 1 S.C.R. 247:
55 A decision will be unreasonable
only if there is no line of analysis within the given reasons that could
reasonably lead the tribunal from the evidence before it to the conclusion at
which it arrived. If any of the reasons that are sufficient to support the
conclusion are tenable in the sense that they can stand up to a somewhat
probing examination, then the decision will not be unreasonable and a reviewing
court must not interfere (see Southam, at para. 56).
This means that a decision may satisfy the reasonableness standard if it is
supported by a tenable explanation even if this explanation is not one that the
reviewing court finds compelling (see Southam, at
para. 79).
56 This does not mean that every
element of the reasoning given must independently pass a test for
reasonableness. The question is rather whether the reasons, taken as a
whole, are tenable as support for the decision….
[emphasis mine]
[45]
This
standard has not been met in the present case. The IAD’s finding with respect
to the nature of the police report informed the rest of its analysis to such an
extent that it cannot be said that any line of analysis remains to support its
conclusion when this error is removed.
[46]
In
the result, the application for judicial review is accepted. The decision of
the IAD is quashed and will be sent back for re-consideration by another panel.
[47]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
IT IS THE JUDGMENT
OF THIS COURT that the application is granted and the matter shall
be remitted to the Immigration Appeal Division for re-consideration by a
differently constituted panel. No questions are certified.
“Richard
G. Mosley”
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