Date: 20080415
Docket: IMM-3292-07
Citation: 2008 FC 482
Ottawa, Ontario, April 15, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
SURJIT
SINGH DHADWAR
Applicant
and
THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
1. Introduction
[1]
The Applicant, Surjit Singh Dhadwar, seeks judicial review of the July
19, 2007 decision by the Immigration Appeal Division of the Immigration and
Refugee Board (the Board) dismissing his appeal of the June 27, 2007 removal
order issued against him.
[2]
The Applicant, the Appellant before the Board, seeks to have the
decision by the Board set aside and the matter referred back for
redetermination.
2. Facts
[3]
The Applicant was born on January 10, 1973, in India and is a citizen of
that country. He immigrated to Canada on July 19, 2000, under the family class,
sponsored by his fiancé.
[4]
The Applicant married his fiancé on August 5, 2000, and separated
shortly thereafter. They were divorced in 2001. There are no children from the
marriage.
[5]
On June 22, 2003, the Applicant sexually assaulted a distant relative who
was 18 years old and mentally disabled.
[6]
The Applicant was charged with and pled guilty to sexual assault
contrary to section 271 of the Criminal Code of Canada before the
Provincial Court of British Columbia (the Provincial Court). For sentencing
purposes, an agreed statement of facts was filed before the Court. On November
2, 2004, the Provincial Court sentenced the Applicant to a conditional sentence
with terms followed by 18 months of probation.
[7]
As a result of his June 27, 2007 conviction, the Applicant was found
inadmissible for serious criminality under section 36(1)(a) of the Immigration
and the Refugee Protection Act, S.C. 2001 c.27 (the Act) and was ordered
removed from Canada.
[8]
The Applicant appealed the removal order to the Board seeking special relief
on humanitarian and compassionate grounds under section 67(1)(c) and
subsection 68(1) of the Act. On January 18, 2007, the Board heard the Applicant
and subsequently dismissed his appeal on July 19, 2007.
[9]
The present application for judicial review was filed on August 15, 2007.
3. Impugned Decision
[10]
In dismissing the appeal, the Board noted that it found the Removal
Order valid in law. The Appellant had not challenged its legal validity.
[11]
The Board also noted that in determining whether to exercise its
discretion to grant special relief, it was guided by the objectives set out in
paragraph 3(1)(h) of the Act and the factors outlined in Ribic
v. Canada (Minister of Employment and Immigration), [1985]
I.A.D.B. No. 4 (QL). I summarized below the Board’s findings with respect to
these factors:
(a)
Length of time in Canada and the degree of
establishment; hardship in India and dislocation to the family in Canada:
The Board found that the Appellant has spent 27 years in India and 6 in Canada.
Although he was briefly married upon his arrival, the Board notes that it bears
the “hallmarks of a marriage of convenience.” It further notes that the Appellant
lives with a childhood friend, has an aunt in Canada and a few distant
relatives. He has no property ownership in Canada and works at a window
factory. The Board observes that prior to his arrival in Canada, the Appellant
had a successful taxi business and with the sizeable savings he’s made since
2000, it is reasonable to conclude that he would be able to have funds to
finance a taxi business or find other employment in India. The Board attaches
little weight to the English course the Appellant was taking due to his poor
attendance record. Consequently, the Board concluded that the Appellant was not
significantly established in Canada or that it would be a hardship for him to
return to India to live with his immediate family.
(b)
Impact to the victim: Relying on the victim’s mother’s testimony,
the Board observed that she is very scared of men since the assault, is still
on antidepressants and experiences seizures. The mother also explained that
their family does not go to family functions because they fear the Appellant
might be there as a distant relative. The Board concluded “that the victim, who
has the mental age of six or seven, has been, and continues to be, seriously
impacted by the appellant’s presence in Canada. Though she is no longer a child
chronologically, in regards to her mental development, she is still a child in
need of protection.”
(c) Seriousness
of the offence: The Board found that the offence committed was serious and
aggravated by the fact that the victim had a mental disability and that there
was some degree of knowledge and trust with respect to the Appellant since he
was a distant relative, not a stranger. There was also a suggestion in the Police
Report that the Appellant allegedly threatened the victim’s family which
prompted the police to arrest him quickly.
(d)
Credibility and Rehabilitation: The Board noted that the
Appellant’s version of events “is marked with ‘skilful exaggeration with
partial suppression of the truth.’” The Board raised concerns that the reports
prepared by Dr. Riar and Dr. Sandu were based on false or partial information
relating to the sexual assault. It did not attach much weight to these since
“the Appellant has not been truthful and has suppressed important facts to both
psychiatrists.” The Board was also concerned about the change in the
Appellant’s attitude and narration of events from the first pre-sentence report
of August 2004 to the one in November 2004. Consequently, the Board concluded
that the Appellant was not a credible person. Further, it doubted that any
rehabilitation had taken place given that the exact nature of the crime was not
discussed with his psychiatrists.
(e)
Support available to the Appellant with the family and within
the community: Although the Appellant submitted 11 letters of support, the
Board found that none of them “set out explicitly what they understand the
appellant was convicted of and many of the letters do not indicate any
knowledge whatsoever of issues that the appellant had been or is currently
facing. None indicate any hardship if the appellant was deported.” The Board
concluded that the Provincial Court Judge considered the appellant to be of
some risk and threat to some individuals and a segment of our society.
[12]
In summary, the Board was of the opinion that the Appellant had not
provided sufficient evidence to warrant special relief. It reasoned that the
Appellant had committed a serious offence with aggravating features and found
that his presence in Canada is a risk to the health and safety of Canadians.
The Board also found that the Appellant had not yet engaged in true
rehabilitation since he was not truthful with his psychiatrist. The Board
indicated that the Appellant had failed to show significant establishment in
Canada and found that the victim, with a developmental age of six to seven
years, continued to be impacted by his presence in Canada.
[13]
The board concluded that the Departure Order made against the appellant is
valid in law and that there are not sufficient humanitarian and compassionate
considerations to warrant special relief in light of all the circumstances of
the case.
4. Issue
[14]
The only issue before this is Court is whether the Board properly exercised its discretion by not granting
a stay?
5. The Law
[15]
Subsections 36(1), 67(1) and
68(1) of the Act provide:
|
36. (1) A permanent resident or a foreign national
is inadmissible on grounds of serious criminality for
(a)
having been convicted in Canada of an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years, or of an
offence under an Act of Parliament for which a term of imprisonment of more
than six months has been imposed;
(b)
having been convicted of an offence outside Canada that, if committed in
Canada, would constitute an offence under an Act of Parliament punishable by
a maximum term of imprisonment of at least 10 years; or
(c)
committing an act outside Canada that is an offence in the place where it was
committed and that, if committed in Canada, would constitute an offence under
an Act of Parliament punishable by a maximum term of imprisonment of at least
10 years.
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.
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.
|
36. (1) Emportent interdiction de
territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada d’une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une
infraction à une loi fédérale pour laquelle un emprisonnement de plus de six
mois est infligé;
b) être déclaré coupable, à l’extérieur du Canada, d’une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c) commettre, à l’extérieur du Canada, une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans.
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) 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.
|
[16]
The parties agree that in granting special relief under paragraph
67(1)(c) of the Act, the Board must consider the evidence before it in light of
the various factors outlined in Ribic, supra and confirmed in Chieu
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84;
2002 SCC 3 at paragraph 40. These factors are:
(a) the seriousness of the offence or offences leading to the
deportation and the possibility of rehabilitation;
(b)
the circumstances surrounding
the failure to meet the conditions of admission which led to the deportation
order;
(c)
the length of time spent in Canada
and the degree to which the applicant is established;
(d)
the existence of family in Canada
and the dislocation to that family that deportation of the applicant would
cause;
(e)
the support available for the
applicant not only within the family but also within the community; and
(f)
the degree of hardship that
would be caused to the applicant by his return to his country of nationality
(this factor is sometimes referred to as "foreign hardship").
[17]
The weight to be accorded to
any of the above factors will vary according to the particular circumstances of
each case: Thanabalasingham v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 599 at paragraph 32. In such appeals before the Board, the onus is on
the individual facing removal to establish why he or she should be allowed to
remain in Canada. If the onus is not met, the default position is removal (Chieu,
above, at paragraph 57).
6. Standard of Review
[18]
In her December 14, 2007 decision, in The
Minister of Public Safety and Emergency Preparedness v. Lennox Philip 2007
FC 908, Mme Justice Dawson dealt with the standard of review applicable to
decisions of the Immigration Appeal Division. At paragraph 4 of her
reasons she wrote:
[4] The standard of review to be
applied to the IAD’s decision depends upon the particular question at issue in
the decision. The IAD’s findings of fact, including those with respect to
credibility, may only be interfered with if made in a perverse or capricious
manner or without regard to the material before it. See Mugesera v. Canada
(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100 at
paragraph 38. Questions of law, such as whether the IAD considered the relevant
factors when exercising its discretion, are reviewed on the standard of
correctness. See Ivanov v. Canada (Minister of Citizenship and
Immigration), [2007] 2 F.C.R. 384 (T.D.) at paragraph 19. The exercise
of discretion by the IAD under paragraph 70(1)(b) and subsection 74(3)
of the Immigration Act is to be reviewed on the standard of
reasonableness. See: Khosa v. Canada (Minister of Citizenship
and Immigration), 2007 FCA 24 at paragraphs 2 through 12.
[19]
The Supreme Court of Canada in David Dunsmuir v. Her Majesty the Queen in Right of the Province
of New Brunswick, 2008 SCC 9, recently decided that there are now only two
standards of review; reasonableness and correctness. In its reasons the Supreme
Court defined the concepts of these two standards and provided guidance in
determining the appropriate standard of review to be applied in individual
cases. At paragraphs 55 and 56 of the Court’s reasons for decision, Justices
Bastarache and Lebel for the majority wrote:
[55] A consideration of the following factors will lead to the
conclusion that the decision maker should be given deference and a
reasonableness test applied:
- A privative clause: this is a statutory
direction from Parliament or a legislature indicating the need for deference.
- A discrete and special administrative regime
in which the decision maker has special expertise (labour relations for
instance).
- The nature of the question of law. A
question of law that is of “central importance to the legal system ... and
outside the ... specialized area of expertise” of the administrative decision
maker will always attract a correctness standard (Toronto (City) v.
C.U.P.E., at para. 62). On the other hand, a question of law that
does not rise to this level may be compatible with a reasonableness standard
where the two above factors so indicate.
[56] If these factors, considered together, point to a standard of
reasonableness, the decision maker’s decision must be approached with deference
in the sense of respect discussed earlier in these reasons. There is
nothing unprincipled in the fact that some questions of law will be decided on
the basis of reasonableness. It simply means giving the adjudicator’s
decision appropriate deference in deciding whether a decision should be upheld,
bearing in mind the factors indicated.
[20]
Here the impugned decision is not protected by a
full privative clause, does not engage the Board’s special expertise, at least
in so far as rehabilitation is concerned, and the nature of the question is
essentially discretionary. I have no difficulty finding, on the application of
the above-cited factors, that the applicable standard of review to the question
before me in this application is reasonableness. This is the same standard
applied by the Federal Court of Appeal in Khosa, above, at paragraph 12,
to a decision of the Immigration Appeal Division involving consideration of he Ribic
factors. That decision is now before the Supreme Court.
[21]
The Supreme Court provides further guidance in
articulating the approach to be followed in applying the “new” reasonableness
standard at paragraph 47 of its reasons:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the facts
and law.
7. Analysis
[22]
Here, as noted by the Board the Applicant did not challenge the legal
validity of the removal order but rather, brought his appeal solely on the
ground there were sufficient humanitarian and compassionate considerations in
the circumstances to warrant special relief and stay the removal order. It is
well established that in the absence of a special privilege existing, an
individual subject to a lawful removal order has no right whatever to remain in
Canada. In this appeal, the Applicant is therefore attempting to obtain a
discretionary privilege. He is not in a position to assert a right.
[23]
The Applicant contends that the Court’s intervention is warranted
because the Board committed the following errors in making its decision, namely:
(a) erred
in law by making patently unreasonable findings of fact regarding the factors
outlined in Ribic related to the seriousness of the offence and in
failing to explain why it differed from the findings of fact made by the
criminal court;
(b) erred
in law by failing to take into account some of the factors associated with
rehabilitation namely the absence of a criminal record, the absence of previous
convictions for sexual assault, the response of the Applicant to community
supervision and the recent history of the Applicant including the upgrading of
his education and good work record in the exercise of its discretion;
(c) erred
in law in reaching inappropriate inferences from the evidence that impacted on
its conclusion regarding the Applicant’s lack of credibility and the
credibility of medical evidence submitted in support of the Applicant’s case;
(d) erred
in law by relying on irrelevant considerations namely, the victim impact
evidence of the complainant’s family in the exercise of its discretion under
paragraph 67(1)(c) of the Act.
[24]
In making its findings regarding to the seriousness of the offence the
Board accepted the Crown’s submissions which essentially relied on the version
of events found in the police report. The report indicated that the Applicant
had pushed the victim to the floor, kept her down, put her knee on his shoulder
despite her starting to cry and saying no. In the report, it was further alleged
that the Applicant had touched the victim’s neck and face with his penis, that
he pulled down her pajamas and her panties, that he put his fingers inside her
vagina, touched her vagina with his penis and achieved penetration. The Board
further relied on the police report as a reliable source of information to find
that the Applicant had threatened the victim’s family.
[25]
The evidence before the sentencing judge painted a different picture of
the events surrounding the assault. The judge had before him a pre-sentence
report and an agreed statement of facts. The agreed facts before the sentencing
judge did not reflect the version of events suggested by the Respondent before
the Board. The Provincial Court found that the Applicant was a distant relative
and knew the victim but found that he was not in a position of trust in relation
to the victim. The Court was also aware that the victim had a mental age of a
five to seven year old. With respect to the actual assault, the Court found
that the Applicant had initiated contact with the victim, found that there was
no penetration but the contact was rough enough to cause redness and tenderness
in the victim’s vaginal and anal areas. The agreed statement of facts indicated
that the majority of the sexual contact took place while the Applicant and the
victim were both standing and that, at one point, the Applicant had the victim
lift her leg. The Court found that there is no suggestion of any inappropriate similar
conduct by the Applicant towards the victim or anyone else either before or
since the offence.
[26]
It is open to the Board to rely on evidence it finds to be relevant,
credible and trustworthy and to determine its weight. It is also open to the
Board to reject the Applicant’s version of events and accept the facts as
indicated in the police report. However, in so doing, it is important not to
mischaracterize the nature of the police report. As my colleague, Mr. Justice
Mosley indicated in Rajagopal v. Canada (Minister of Public Safety and
Emergency Preparedness) [2007] FC 523, at paragraph 43, a police report
contains allegations as recorded by the police officer upon investigation of the
complaint, not the findings of fact reached by the court that convicted the
Applicant and imposed sentence.
[27]
In the instant case, the Board accepted as fact many of the allegations
contained in the police report. In particular, the allegation that the victim’s
family was threatened by the Applicant, through a third party, with physical
harm or the filing of false charges against the victim’s father should he talk
to the police. The sentencing judge, who did not have the benefit of the police
report, made no such finding. The Applicant denied making such a threat in his
testimony before the Board. The Applicant’s denial is also reported in the
police report. There is no further mention of the allegation in the record.
There is no indication that the allegation was further investigated by the
police, no charges were laid, nor is there any direct evidence regarding the
threat by the victim’s father or the family friend through whom the threat was
allegedly communicated. Apart from the police report, there is no other
evidence adduced before the Board to establish that the threat was actually
made. We are left with the allegation contained in the police report. The
evidence before the Board did establish that the victim’s family wanted the
Applicant deported. Through the police report, the Board was also aware that it
is the victim’s father who informed the police of the alleged threat.
[28]
Based on the information before it the Board make the following factual determination:
“I find the Police Report a
reliable source of information that there was a threat to the family of the
victim and that they would have been at risk of harm if the police had not acted
quickly.”
[29]
As stated above, the police report does not record findings of fact, but
rather allegations of fact following an investigation. In my view, it was not
open to the Board to accept as fact the allegations contained in the police
report without pointing to evidence or testimony to support an argument that on
a balance of probabilities the police report characterizes the underlying facts
in an accurate manner. Further, the Board failed to explain why it preferred
the allegations of fact found in the police report over the Applicant’s
evidence, or the findings of the sentencing judge in respect of the
circumstances surrounding the offence. I am left to conclude that the Board’s
finding was made without regard to the evidence and is consequently perverse
and unreasonable. In so doing the Board committed a reviewable error.
[30]
In my opinion the error is determinative of the within application
because to the significance of the impugned finding in the context of the
Applicant’s appeal. In its reasons, the Board accepted that the factual
circumstances, as related in the police report, elevated the seriousness of the
threat “significantly”. I agree. The circumstances of the alleged threat, if
accepted, indicate that the Applicant was prepared to undermine the very
justice system he relies on to obtain the discretionary relief he seeks in this
application. Such a finding must be properly founded in the evidence and was
not. The significance of this finding on the Board’s assessment of the
seriousness of the offence is such, that it may well have had a bearing on the
outcome of the appeal. It follows that this application for judicial review
will be allowed.
[31]
While my above finding is determinative it is unnecessary to consider
the other issues raised in this application. I will nevertheless make the
following observations regarding the Applicant’s rehabilitation.
[32]
The Board’s findings relating to the Applicant’s
rehabilitation are found at paragraph 44 of its reasons. That paragraph reads as
follows:
44. As the
appellant has not been truthful and has suppressed important facts to both
psychiatrists (…) I am unable to find that the appellant is a credible person
and I am not convinced of any rehabilitation given that the nature of the
crime has not been discussed with his psychiatrist. I accordingly give little
weight of remorse other than remorse because the offence had led to his
deportation. [Emphasis added.]
[33]
While the Board’s findings relating to the
Applicant’s credibility and the impact of these findings on the Applicant’s
rehabilitation may have been open to the Board on the evidence, it was also
necessary for the Board to take into account the factors generally associated
with the criminal law concept of rehabilitation. Mr. Justice Décary writing for
the Federal Court of Appeal in Khosa, above stated the following at
paragraph 11 of his reasons:
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. …
[34]
Notwithstanding the significant evidence adduced in respect to the
Applicant’s rehabilitation in the instant case, the Board failed to address any
of the following factors in its reasons, namely, the Applicant’s apology, his
guilty plea, the Provincial Court’s finding of remorse, the counseling sessions
he attended, the absence of a criminal record or the successful completion of
his conditional sentence order. In the circumstances, these
important factors pertaining to the Applicant’s rehabilitation that should have
been expressly dealt with, were essentially ignored by the Board in its
reasons.
[35]
For the above reasons, the application will be allowed and the matter
sent back for reconsideration before a differently constituted panel of the
Board to be dealt with in accordance with the above reasons.
[36]
The parties have had the opportunity to raise a serious
question of general importance as contemplated by paragraph 74(d) of the
Act and have not done so. I am satisfied that no serious question of general
importance arises on this record. I do not propose to certify a question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The application for
judicial review is allowed.
2. The matter is to be sent back for reconsideration before a
differently constituted panel of the Board to be dealt with in accordance with
the above reasons;
3.
No question of general importance is certified.
“Edmond
P. Blanchard”
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