Date: 20080717
Docket: IMM-435-08
Citation: 2008 FC 883
Toronto, Ontario, July 17,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
RIGOBERTO ANTONIO MARTINEZ-SOTO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Rigoberto Antonio Martinez-Soto applies for judicial review of the Immigration
Appeal Board refusal to grant a stay of a deportation order arising from a
decision that he was inadmissible because of serious criminality.
[2]
Mr.
Martinez-Soto was born in El
Salvador on
March 24, 1959. He was accepted by Canada
as a Convention refugee on May 22, 1986. He became an alcoholic because of the
anxieties occasioned by the trauma of witnessing El Salvadoran death squads in
action. His alcohol abuse contributed to a lengthy history of criminality. His
efforts to deal with his alcohol abuse during that period were unsuccessful.
After being convicted of assault causing bodily harm, he was found inadmissible
on the grounds of serious criminality.
[3]
After his
conviction, Mr. Martinez-Soto changed the direction of his life: he quit
alcohol; he became compliant with court ordered supervision and he began to
succeed, in the estimation of both his probation officer and his psychiatrist,
dealing with his alcohol addiction and with the underlying issues that
contributed to his abuse. He no longer committed criminal offences.
[4]
Mr.
Martinez-Soto applied for a stay of his deportation order to the Immigration
Appeal Division pursuant to section 68 of the Immigration Appeal Division
(IAD). The IAD denied his appeal because it determined he had not proved, on
the civil balance of probabilities, that he had rehabilitated himself.
[5]
The
standard of review for a discretionary decision of a tribunal is reasonableness
but with “giving due consideration to the determinations of the decision
maker.” Dunsmuir v. New
Brunswick,
[2008] S.C.J. No 9 at para. 49.
[6]
The IAD
established in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4, a list
of factors to consider in a deportation appeal. They include:
·
the
seriousness of the offence or offences leading to the deportation
·
the
possibility of rehabilitation or in the alternative, the circumstances surrounding the
failure to meet the conditions of admission which led to the deportation order
[Emphasis added]
·
the length
of time spent in Canada
·
the degree
to which the appellant is established
·
family in Canada, and the dislocation to that
family that deportation of the appellant would cause
·
the
support available for the appellant not only within the family but also within
the community
·
the degree
of hardship that would be caused to the appellant by his return to his country
of nationality
[7]
The
Supreme Court of Canada approved the Ribic factors in Chieu v. Canada (Minister of Citizenship and
Immigration)
2002 SCC 3. In doing so the Court observed that it has long approved a broad
approach to the then equivalent provision in effect. The Court noted that the
remedial powers of the Board were very flexible: the Board could dispose of an
appeal by allowing an appeal, dismissing it, or directing a stay of the
execution of the order on conditions.
[8]
Considering
the broad approach endorsed by the Supreme Court of Canada and its specific
observation that the IAD can stay a deportation order on conditions, I conclude
that the interpretation to be given to the Ribic rehabilitation factor
is, as expressly stated, the possibility of rehabilitation, rather than
the proof of rehabilitation.
[9]
The IAD
applied a more restrictive interpretation to rehabilitation than set out in the
Ribic factors when it held that Mr. Martinez-Soto had not proved his
rehabilitation. In doing so, I find that the IAD decided unreasonably.
[10]
The
parties have not proposed a serious question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed and the appeal is remitted for
re-determination by another tribunal.
2.
No serious
question of general importance is certified.
“Leonard
S. Mandamin”
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