Date: 20080605
Docket: IMM-2146-07
Citation: 2008 FC 708
Toronto, Ontario, June 5,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
SHAFFIRA SHAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant has
lived in Canada since 1973 and has been a
permanent resident for over 25 years. A removal order was issued against her in
1998; however, she subsequently received two stays of execution of that order
pursuant to s. 70(1)(b) of the Immigration Act R.S.C., 1985 (4th Supp.),
c. 28. (The Act). She is now seeking judicial review of the decision of the
Immigration Appeal Division of the Immigration and Refugee Board (the Board)
dated, May 12, 2006 which cancelled her stay of removal and directed that her
removal order be executed as soon as reasonably practicable.
I. The Facts
[2]
A
citizen of Trinidad and Tobago, the applicant arrived in Canada in 1973 when she was 18 years
old. Since her arrival, more than 30 years ago, she returned only once to Trinidad and Tobago for a brief visit, when her
father died. She became a permanent resident at age 23 with the sponsorship of
her former husband. She has three daughters and a grandson in Canada, all
Canadian citizens, and some family members in the United States. She has absolutely no family ties in Trinidad and Tobago.
[3]
The
applicant entered into an abusive marriage before finally she separated from
her husband in 1994. The marriage caused tremendous stress to the applicant,
and for the past several years she has been under a doctor’s care and been
prescribed a vast array of medications. She also suffers from a number of
physical ailments. She was formally employed until 2000, when the company of
her employer was shut down. Since that time, she has lived with her daughters
and relies on them for support. During the week she works by taking care of her
grandson.
[4]
The
applicant has unfortunately accumulated a history of minor criminal
convictions, totalling 16 over a 30 year period. Most of these are either for
theft under $5,000 or possession of stolen property, resulting from a number of
shoplifting-related incidents. In 1998, the applicant was convicted of welfare
fraud, which resulted in a removal order being issued against her. The
applicant appealed her removal order to the Board and was granted a temporary
stay in 1999 pursuant to the discretionary jurisdiction of the Board under
s.70(1)(b) of the former Immigration Act, which grants a broad
discretion to the Board for the relief of a legally enforceable removal order,
if justified to do so “in all the circumstances of the case”:
|
70.
(1) Subject to subsections (4) and (5), where a removal order or conditional
removal order is made against a permanent resident or against a person
lawfully in possession of a valid returning resident permit issued to that
person pursuant to the regulations, that person may appeal to the Appeal
Division on either or both of the following grounds, namely,
(a) on
any ground of appeal that involves a question of law or fact, or mixed law
and fact; and
(b) on
the ground that, having regard to all the circumstances of the case, the
person should not be removed from Canada. [Emphasis added]
|
70. (1) Sous réserve des paragraphes (4)
et (5), les résidents permanents et les titulaires de permis de retour en
cours de validité et conformes aux règlements peuvent faire appel devant la
section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant
les moyens suivants:
a) question de droit, de fait ou mixte;
b) le fait que, eu égard aux
circonstances particulières de l'espèce, ils ne devraient pas être renvoyés
du Canada.
[souligné ajouté]
|
[5]
Following
a hearing before the Board in 2003, the applicant obtains another extension of
her stay despite the fact that she failed to comply with some of the terms of
her 2003 stay which included amongst other conditions refraining from all
criminal activities and notifying Citizenship and Immigration of any change of
address. In 2005, the Minister of Citizenship and Immigration applies, pursuant
to s.33 of the former Immigration Appeal Division Rules, for the
cancellation of the applicant’s stay due to her failure to comply with the
terms of her 2003 stay. A new hearing was held before the Board on February 1,
2006.
II. The Decision of the Board
[6]
The
original stay having been issued pursuant to the Immigration Act, the
Board continues to assess the applicant’s case pursuant to s. 70(1) (b). The
Board recognizes its wide discretion to consider all the factors of the case,
and indeed lists the numerous factors that “guided” its decision; however, the
Board’s reasons focus on the fact that since her previous stay the applicant
has breached several of the conditions imposed on her:
The panel concludes that the appellant is
in breach of a number of conditions of the stay of her removal order. She has
been convicted of further criminal offences contrary to condition #4. She has
not made reasonable efforts to maintain herself in such a condition that it is
not likely she will commit further offences contrary to #11. She has not kept
the peace and been of good behaviour as required by condition #13. She has
failed to report in person to Immigration on at least three occasions contrary
to condition #9. In her oral evidence, it became clear she has not reported at
least one change of address as required by condition #1 and failed to report
any of her criminal charges and convictions as required by conditions #5 and #6
[…]
The Appellant continues to commit
criminal offences and breach numerous conditions of her say. She is a habitual
shoplifter. She has not rehabilitated herself in the six years during which she
has been given the opportunity to do so by two stays of her removal order.
Member Stein made it clear to her last time that she might not receive
continued clemency if she appeared before the IAD again in breach of her stay
conditions.
[7]
The Board
finds that the applicant, although socially established in Canada, is still not economically
established. The applicant’s ties to her grandson and daughters are adequately
considered; however, the Board notes that the applicant’s daughters have grown
up and no longer depend on the applicant. The Board acknowledges that it would
probably preferable for the best interests of the applicant’s grandson that she
remains in Canada; however, the Board finds
that these ties are insufficient to overcome the applicant’s breach of her stay
conditions and concludes:
To continue the appellant’s stay is not
an option as the panel finds, on balance, she will almost certainly breach it.
That leaves the panel with two options, either to allow the appeal or dismiss
the appeal. To allow the appeal would be tantamount to condoning the
appellant’s criminal record and unacceptable behaviour in Canadian society. The
positive humanitarian and compassionate factors in this case are insufficient
to allow this appeal outright.
III. Issues
[8]
The
applicant and respondent frame different issues in the present application. In
addition, the applicant raises several arguments that are, in essence,
disagreements with respect to the weight that the Board chooses to give to
various factors. Under the standard of review of reasonableness, outlined
above, it is not the Court’s role to reweigh the evidence; therefore, the
Court will not address these arguments except as they relate to the one
question that, in its opinion, needs to be addressed with respect to the
Board’s decision to cancel the applicant’s stay:
Did the IAD ignore evidence and fail to
address the “all the circumstances” of the Applicant’s case by failing to
address the factors set out in Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 (QL) (Ribic)?
IV. Standard
of Review
[9]
The
standard of review for a similar question was addressed by the Federal Court of
Appeal in Khosa v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 139, 2007 FCA 24, when,
after a thorough analysis, it found that the applicable standard of review is
reasonableness. There is no need to depart from the Khosa’s analysis
for the present application. In adopting this standard, this Court finds
guidance in the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick 2008 SCC 9 where, at paragraph 47, the standard of reasonableness
is explained:
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.
[Emphasis added]
As will be explained below, in reaching its
decision, the Board considered the non-exclusive factors outlined in Ribic
v. Minister of Employment and Immigration, [1985] I.A.B.D. No.4 and
approved in Chieu v. Canada (Minister of Citizenship and Immigration),
2002 SCC 3, he appreciated properly the circumstances of the applicant’s
situation, and therefore this Court finds regretfully that the Board’s decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
V. Analysis
[10]
Section 70(1) (b) confers a
broad discretion on the Board to provide relief against a valid removal order
by allowing the Board to take into account “all the circumstances of the case”.
To provide consistency, the Board in the case of Ribic, above,
developed a list of factors to aid the Board in the exercise of its s. 70(1)(b)
discretion. There is no dispute that the Ribic factors are applicable
to the present case, and they were listed by the Board in its decision under
review as follows:
1.
The
seriousness of the offences leading to the deportation order and the
possibility of rehabilitation;
2.
The length
of time spent in Canada and the degree to which the
appellant is established here;
3.
The family
in Canada and the dislocation to the
family that the deportation of the appellant would cause;
4.
The
support available to the appellant not only with the family but also within the
community; and
5.
The degree
of hardship the appellant would face in the likely country of removal.
[11]
In
Chieu, above, the Supreme Court of Canada endorsed the approach developed
in Ribic, and elaborated on some of circumstances which fall under the
last of the Ribic considerations, stating at paragraphs 40-41:
This list
is illustrative, and not exhaustive. The weight to be accorded to any
particular factor will vary according to the particular circumstances of a
case. While the majority of these factors look to domestic
considerations, the final factor includes consideration of potential foreign
hardship.
… The types of foreign hardship factors considered by the
I.A.D. since the 1977 reforms have included language ability, family
connections, availability of necessary medical care, and risk of physical harm.
[12]
Therefore, for the purposes of reviewing the discretion exercised here by the
Board, the Ribic factors provide a useful guide for assessing whether
that discretion was exercised in a reasonable manner or if the Board failed to
address the Ribic’s factors properly.
A. The Seriousness of the Offence Leading to the
Deportation Order and the Possibility of Rehabilitation
[13]
With
the exception of the one serious charge of welfare fraud
that resulted in the original removal order in 1998, which was taken into
account when the applicant’s original stay was granted, all of the 16 criminal
convictions of the applicant relate to shoplifting, theft and possession of
stolen property.
[14]
The
applicant was granted a three-year stay of her removal
order in 1999, and allowed to remain in Canada subject to certain conditions. In 2003, the applicant’s stay was extended
for a further three years with amended conditions. At the applicant’s review in
2003, it was found that since having been put on stay in 1999, the applicant
had been convicted of three further criminal convictions. And since the
applicant was granted an extension of her stay in 2003, she was further
convicted between September 2004 and January 2006 of four criminal convictions,
all for theft under, and a provincial offence under the Trespass to Property
Act.
[15]
At
the Board’s hearing in May 2006, the applicant
filed new evidence and testified. She did not call any other witnesses. The
evidence made it clear that the applicant breached a number of conditions of
her original stay of 1999 and of the extension of her stay in 2003.
[16]
The
Board found the applicant to be a habitual
shoplifter, who had not rehabilitated herself in the six years during which she
was given the opportunity to do so by the two stays of her removal order. The
Board noted also that the applicant was given a clear warning at the last stay
hearing of the possible consequences of breaching the conditions of her stay.
Finally the Board noted that the applicant had not taken any constructive
action to address her criminal behaviour and that to grant a further stay in
these circumstances would make a mockery of the Board’s discretionary
jurisdiction. No doubt that the applicant’s continuing criminality and inability
to comply with conditions imposed on her, and her lack of rehabilitation
weighed heavily against her. This
Court sees nothing wrong with this conclusion.
[17]
The Board recognizes that the applicant suffers from
medical issues, however it rejects that this could contribute to her criminal
behaviour. Having heard the applicant it was for the Board to appreciate the
weight of her testimony and of her excuses or the relation between her health
condition and her criminal behaviour. Having reviewed the evidence this Court
sees nothing wrong with this conclusion of the Board: of possible, acceptable outcomes which
are defensible in respect of the facts
The onus is on the appellant to present
evidence that indicates why she should not be removed from Canada. The only medical
evidence before the panel indicates she is under doctor’s treatment and on
medication for emotional distress and depression, has fibroids, and suffers
from bank and ankle problems. While having sympathy for the appellant’s poor
heath and state of mind, the panel does not accept these medical problems as
valid reasons for why she continues to commit criminal offences. [Emphasis
added]
[18]
This conclusion is certainly an
acceptable outcome which is defensible in respect of the proof offered, and
there is no indication that this proof was improperly assessed. True the
applicant would have preferred a different result on this issue; but this
desire does not constitute in itself an error.
[19]
The
assessment of the
weight that the Board placed on the evidence and how it interpreted that
evidence is a question of fact and should be reviewed only if the Board based
its decision on an erroneous finding of fact made in a perverse or capricious
manner or without regard for the proof before it. (Mugesera v. Canada (Minister of Citizenship and
Immigration),
2005 SCC 40 at paragraph 38; Sahota v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1463 at paragraph 32; Federal Courts Act, s.18.1(4)(d)).
[20]
The Board
has complete authority to weigh the evidence before it. Disagreement with the
weight assigned to it, does not justify the intervention of this Court. The
Board has a greater expertise than this Court in considering and weighing the
evidence against the Ribic factors. The Board’s discretionary decision
turns on a finding of fact; and the assessment of the rehabilitation factor is
fact-based and does not call for an application or interpretation of definitive
legal principles.
[21]
Even
if the Board did not make a negative credibility finding as
such, with respect to the applicant, it had no obligation as a consequence to
accept the applicant’s evidence that her mental health did impact her
behaviour, and that she was going to make steps towards rehabilitation. On the
contrary, having heard the applicant’s testimony on the explanations for her
behaviour, the Board had the right to appreciate and weight that type of
evidence and to accept or reject it in totality or in part only. This forms
part of the deciding process.
[22]
Another issue related to the
first Ribic factor discussed in depth by the parties is the portion of
the IAD’s decision where it was stated:
Counsel for the Appellant spoke of the
need for a psychological assessment and a report form the appellant’s probation
officer and asked that he decision be reserved for a reasonable time to present
this evidence…nothing was presented at her oral review and nothing has been
forthcoming in the two months between the hearing date and the writing of these
reasons.
Reading the transcript, it becomes obvious that both reports
could have provided relevant information and maybe supported the applicant’s
case. The applicant argues that she should not suffer due to an obvious
omission on the part of her former counsel.
[23]
On
this point, the Court agrees with the respondent that the applicant is ultimately
responsible for her choice of counsel and simply because her former counsel did
not present her case in the most advantageous way does not make the Board’s
decision reviewable (Williams v. Canada (Minister of Citizenship and
Immigration), [1994] F.C.J. No. 258).
[24]
True
however, in this
particular case, the record indicates that near the end of the proceeding, the
counsel for the applicant asked to be allowed time, before the decision was
rendered, to have the applicant undergo an assessment; and there was some
discussion about this possibility. It appears also clear
on the record that the Board was open to accept additional evidence right up to
the point of that it would make its decision. But it is not clear at this point that
the applicant intended to produce such assessment; as a consequence of the
applicant’s indecision on this issue the
Board clearly indicated that it was not its role to advise the applicant on the
opportunity to produce or not a medical assessment.
[25]
Contrary to the applicant’s submissions, this Court finds
that the Board did not draw a negative inference from the lack of such
assessment. It only noted that the applicant’s excuses for her criminal
behaviour were not supported by a medical assessment. And this is a question of
fact well noted. It was up to the applicant to offer that proof and she failed
to do so. The Board had at the hearing clearly indicated that it was not its
role to advise the applicant on this issue. The Board comment under these
circumstances was a fair comment.
B. The Length of Time Spent in Canada and the
Degree to which the Applicant is established here
[26]
In
its factual
summary, the Board mentions that the applicant had been in Canada for 27 years and that she had
no family in her country of origin. However, when discussing establishment the
Board focuses on the fact that the applicant was only “socially” established as
opposed to “economically” established which appears to be the case. The Board
sufficiently addresses the applicant’s degree of establishment in Canada and
recognizes that her whole life is in Canada
and that there is nothing much for her anywhere else. But this factor is only
one amongst other factors also considered.
C. The
Family in Canada and the Dislocation to the
Family that the Deportation of the Applicant would cause
[27]
The
applicant argues that the Board unfairly made negative
credibility assessments with respect to the closeness of the applicant and her
daughters because the daughters did not attend the hearing. This argument also
relates to the submission, discussed above, that the applicant should not
suffer the consequences of omission of her former counsel as she claims that
her former counsel did not impress upon her the importance of her daughter’s
attendance and did not respond to her promptly with respect to the date of the
hearing.
[28]
The Board decision is based on the information that was
available to it and it is not open for the applicant to now give supplementary
reasons to this Court as to why her daughters did not attend. In addition,
there is no indication that the Board ignored the explanation given by the
applicant for her daughter’s absence. In fact, the Board concluded that the
applicant’s daughters would face hardship if their mother was deported. So this
factor was considered.
[29]
Under this factor, the applicant also argues that the Board failed to
adequately consider the best interests of the applicant’s grandson. The Court
disagrees. The reasons demonstrate that the Board turned its mind to the best
interests of the applicant’s grandson and, in fact, concluded that it would
probably be in the grandson’s best interest that the applicant remains in Canada. Given this, the applicant’s argument on this issue is
really whether the Board accorded sufficient weight to this factor, and, as
such, is not reviewable. Therefore this Court finds that the Board has been
“alert, alive and sensitive” to the best interests of any child likely to be
adversely affected by the outcome of its decision.
D. The Support Available to the Applicants not only
with the Family but also within the Community
[30]
The
letters submitted by the applicant’s three daughters all speak to the fact that
they are willing and able to support their mother and hope to help her overcome
her medical and criminal issues. In addition, the applicant testified to an
ongoing relationship both with her doctor and her parole officer. Nothing
indicates that the Board failed to consider this evidence; on the contrary the
Board is presumed to have considered all the evidence. In its decision the
Board was not obliged to refer to all the evidence considered, but only to the
evidence on which it based its conclusion.
E. The Degree of Hardship the Applicant would face in
the likely Country of Removal
[31]
The
Board recognizes
that a return to Trinidad
and Tobago will
cause “considerable hardship and dislocation” to the applicant. The Board did
not have to elaborate more than it did on this factor. The Board was
sufficiently sensitive to this issue. But again this issue must also be weighed
with all the other factors considered and the overall proof.
VI. Conclusion
[32]
The
Board was faced
with a plea for humanitarian and compassionate relief. On the facts of the
present case, the Board was faced with many factors supporting the decision to
cancel the applicant’s stay. True the proof also indicated some factors
supporting the renewal of the stay. This is where the decision maker has to
balance the pros and cons of the decision he has to make. This Court finds that
as a whole the Board appropriately balanced the competing interests and
addressed sufficiently all the circumstances of the applicant’s case. The
question is not whether this Court would have rendered the same decision than
the Board did, or if some proof exists that could justify a different decision.
The question consists only to determine if the Board erred in its appreciation
of the facts and if its decision
is unreasonable because it does not fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. And this Court having
considered the proof and already concluded that it does fall within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law, therefore the application will be
dismissed.
[33]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT dismisses the application.
“Maurice E. Lagacé”
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