Date: 20071113
Docket: IMM-5642-06
Citation: 2007 FC 1150
Ottawa, Ontario, November 13, 2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicant
and
COLIN ANTHONY NEWMAN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Newman came to Canada from Jamaica in 1987. He became a permanent
resident here in 1995. In 2002, Mr. Newman was ordered to be deported from Canada
after having been convicted of welfare fraud, attempting to obstruct justice
and failing to appear. In 2003, the Immigration Appeal Division (IAD) granted
Mr. Newman a stay of his deportation for three years on certain conditions. In
2006, the IAD decided that the original deportation order should be quashed.
[2]
The Minister of Public Safety and Emergency Preparedness argues that the
IAD’s decision was not supported by the evidence before it. The Minister asks
me to order a new hearing before a different panel of the IAD. Mr. Newman did
not appear at the hearing of this application for judicial review. Having
reviewed the record, I agree that the IAD’s decision was out of keeping with
the evidence before it and, therefore, I will order a new hearing.
I. Issue
[3]
Was the IAD’s decision supported by the evidence?
II. Analysis
(a) The
IAD’s Decision
[4]
The IAD correctly identified the criteria that should be
considered when deciding whether a person in Mr. Newman’s circumstances should
be allowed to remain in Canada. In summary, those criteria include the
seriousness of the original crime; the possibility of rehabilitation; the
degree of establishment in Canada; the impact on the person’s family, including
the best interests of any children; the person’s support in the community; and
the hardship the person would suffer if removed from Canada (see Chieu
v. Canada (Minister of Citizenship and Immigration), 2002
SCC 3, [2002] S.C.J. No. 1 (QL)).
[5]
In general, the IAD concluded that little had
changed since the stay of deportation was granted in 2003 and, therefore, that the
relevant factors continued to favour allowing Mr. Newman to remain in Canada. However, the Minister strenuously
disputes one of the IDA’s findings – that Mr. Newman presents a low risk of
re-offending.
[6]
The IAD was well aware of the fact that Mr.
Newman had failed to comply with the conditions that accompanied his stay of
deportation. Indeed, the IAD stated that Mr. Newman had failed to take those
conditions seriously and it characterized his conduct as egregious. The IAD was
also aware that Mr. Newman had committed numerous driving offences, had failed
to pay his fines, and had been sentenced to a term of imprisonment for driving
while suspended (his license had been permanently suspended in 1993). Still,
the IAD emphasized the fact that Mr. Newman had not committed any criminal offences
in the preceding five years. Accordingly, it concluded that the criterion of
rehabilitation continued to weigh in Mr. Newman’s favour.
[7]
I agree with the Minister that the IAD failed to
explain how the evidence relating to Mr. Newman’s conduct over recent years
supported a finding of rehabilitation. The IAD stated that it could not infer
from Mr. Newman’s lengthy list of driving offences, unpaid fines and failure to
make restitution for his previous crime, that he would commit another criminal
offence. It also stated that it was relying on its own reasoning in an earlier
case (Simas v. Canada (Public Safety and Emergency Preparedness) (IADT99-11275)) in arriving at that conclusion. In Simas,
the IAD found that the appellant had failed to show rehabilitation where there
was evidence that he had refused to abide by the conditions of his stay, had
been convicted of several provincial offences (under the Liquor License Act
of Ontario, R.S.O. 1990 c. L. 19 and the Highway Traffic Act of
Ontario, R.S.O. 1990 c. H. 8), and had failed to pay his fines. It imposed
on the appellant a burden to show that the rehabilitation factor had “clearly
crossed the scales into the positive territory” (at para. 13) and found that, in
light of his contumacious conduct, he could not do so. I am at a loss to see
how the IAD’s conclusion regarding Mr. Newman’s rehabilitation squares either
with the evidence before it or the analysis set out in the precedent on which
it purported to rely.
[8]
Accordingly, I must allow this application for
judicial review and order a new hearing before a different panel of the IAD. No
question of general importance will be stated.
JUDGMENT
THIS COURT’S ORDER IS
that
1.
The
application for judicial review is allowed;
2.
The
matter is referred back to the Immigration Appeal Division for a new hearing
before a different panel;
3.
No
question of general importance is stated.
“James
W. O’Reilly”
Email this Content