Date:
20130506
Docket:
IMM-7951-12
Citation:
2013 FC 470
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario,
May 6, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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LUIGI D’AMICO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
application is a judicial review of the negative decision of the Immigration
Appeal Division (IAD) of July 20, 2012, relating to the appeal of a removal
order issued against the applicant on February 14, 2006.
I. Facts
[2]
The
applicant was born on December 14, 1938, in Italy. He immigrated to Canada
at the age of 18 and is now 73 years old. He is a permanent resident.
[3]
He
is divorced and lives alone in Granby in an apartment. He has four children and
eleven grandchildren who are Canadian, several of whom live close to applicant’s
home in Granby or on the South Shore. He no longer has a spouse.
[4]
In
1992, the applicant was convicted of attempting to obstruct justice and for failure
to appear. In 1995 and 1997, he was convicted following two charges of driving
while impaired by alcohol. In 1998, Citizenship and Immigration Canada (CIC) sent
him a letter advising him that he had committed a serious offence, that of attempting
to obstruct justice for which he could be deported from Canada. Nevertheless, CIC
chose not to investigate the applicant and decided that it would reassess the situation
if the applicant was found guilty of other criminal offences.
[5]
On
November 25, 2005, the applicant was the subject of a report under
subsection 44(1) of the Immigration and
Refugee Protection Act, SC 2001, c.
27 (IRPA), because of convictions for trafficking in cocaine, possession
of drugs for the purposes of trafficking and driving while impaired by alcohol,
for which he pled guilty.
[6]
A
deportation order was issued against the appelant on February 14, 2006, by
the Immigration Division (ID), since it was determined that he was a person
described under paragraph 36(1)(a) of the IRPA.
[7]
The
applicant appealed this decision before the IAD. It decided on February 20,
2007, to stay the execution of the deportation order for three years to give
the applicant the opportunity to show that he was rehabilitated.
[8]
On
September 12, 2007, the applicant was charged with the production of
cannabis, possession of cannabis, possession of cannabis for the purpose of
trafficking and driving a motor vehicle when he was prohibited from doing so. The
applicant did not advise the Canada Border Services Agency (CBSA) of these
charges.
[9]
On
May 30, 2008, it was decided that the stay would be upheld with the same conditions
until the final review, scheduled on or around February 20, 2010.
[10]
On
October 13, 2009, the IAD decided to uphold the stay issued to the applicant
while waiting for the results of the criminal charges brought against him in September 2007,
reminding him that he was in violation of conditions 2, 5 and 9 of his stay.
[11]
On
May 3, 2010, the applicant did not attend his semiannual appointment with
the CBSA and presented himself a month later.
[12]
During
Projet Colisée, it was discovered that the applicant and his sons Patrizio and
Tiziano have connections to the mafia. The applicant admitted that he considers
Francesco Arcadi as his son and that he was involved in reimbursing his son for
$900,000 in construction costs.
[13]
On
January 13, 2012, the applicant was acquitted of the charges laid against
him in 2007 because of the absence of an important witness.
II. Decision
under review
[14]
The
IAD, in its decision rendered following the final review under subsection 68(3)
of the IRPA, which took place on April 4, 2012, determined that the applicant
should be returned to Italy.
[15]
First,
the IAD heard the testimony of the appellant during the hearing of April 2012 and
heard the recording of the hearing of 2007. It then reviewed the case law applicable
to the matter of an appeal of a deportation order on the grounds of serious
criminality and, specifically, the factors set out in Ribic v Canada (Minister of Employment and Immigration), [1985] IABD No 4, 1986 CarswellNat 1357 (Ribic),
affirmed in Chieu v Canada (Minister of Citizenship and Immigration),
2002 SCC 3, [2002] 1 S.C.R. 84, and Al Sagban v Canada (Minister of Citizenship
and Immigration), 2002 SCC 4, [2002] 1 SCR
133, by the Supreme Court of Canada.
[16]
With
respect to the seriousness of the offences leading to the deportation order, the
IAD found that these were significant. The applicant received a stern warning
from the CIC in 1998 and he nevertheless committed other serious crimes and the
IAD thus found that the first factor in Ribic, above, does not favour the
applicant.
[17]
Second,
the IAD found that the applicant has not demonstrated the possibility of
rehabilitation. The IAD noted that he did not respect four conditions issued in
2007. The applicant did not notify the CBSA in writing and in a timely manner of
the criminal charges brought against him in 2007. Instead, the applicant was confronted
with this fact during his semiannual appointment approximately two years after
being charged. He falsely stated that he was acquitted of these charges. Further,
the applicant failed to present himself at the CBSA on March 20, 2008, and
May 3, 2010. The applicant provided a copy of his passport two years after
this condition was issued by the panel. Finally, he failed to inform the CBSA of
his meetings with his parole officer and provide a copy of his release report
(condition number 10).
[18]
The
search warrants obtained by the Granby police were based on several reports dating
from 1999 spanning the years up to April 2003, which shows that the applicant trafficked
drugs over a larger period than what was reported. Further, several elements of
his testimony at the 2012 hearing directly contradict his 2007 testimony in
particular with respect to the detail about drug trafficking and his contact
with people engaging in criminal activities.
[19]
The
IAD also considered that since the stay was issued in 2007, the applicant was again
charged with possession of cannabis, possession of cannabis for the purpose of
trafficking and driving a motor vehicle when he was prohibited from doing so. His
explanations, specifically his ignorance of the fact that three locations in
proximity of his daily life were used to store drugs, were considered by the
IAD to be lacking credibility.
[20]
With
respect to the applicant’s degree of establishment in Canada, the IAD noted that
he has been in Canada for more than 50 years, that he did not provide any
evidence of sources of income and that the companies that he opened are no
longer operating and that he lives off of his children’s help, in addition to
his old age pension.
[21]
With
respect to the impact of the applicant’s removal on his family, the IAD noted that
the applicant is divorced, that he has children and grandchildren, but no
spouse. It found that the applicant’s family is a positive factor for the applicant.
[22]
With
respect to the best interests of the applicant’s grandchildren, the IAD found
that it is not in their interests to maintain ties with their grandfather, who has
links with the mafia and has committed several criminal acts, and further since
it will still be possible for them to visit him in Italy.
[23]
Finally,
the IAD considered that the appellant’s support within the community is not in
his favour because he seems to spend time with people who are linked to the mafia,
and further since his return to Italy, a democratic country, would not be
difficult because members of his family are there.
III. Position
of the applicant
[24]
In
its decision, the IAD continuously alluded to the applicant’s evidence and testimony
submitted in 2007, five years earlier, during the hearing with respect to the granting
of the stay and found that there were elements contradicting the evidence and
testimony of the hearing of April 4, 2012. At no time did the IAD inform
the applicant that it considered the testimony provided during the 2007 hearing.
The applicant is of the opinion that it should have given the applicant the opportunity
to face such contradictions and give explanations and could not draw any negative
finding on his credibility without giving the applicant this opportunity. Such
a rule falls within natural justice. Neither could the IAD note a violation of
condition number 10 of the stay without giving the applicant the
opportunity to explain this. Further, the applicant is of the opinion that
credibility is a key point of the IAD’s decision.
[25]
The
IAD committed significant errors by noting that during the 2007 hearing, the applicant
and his son Tiziano testified in support of the appeal. Further, the IAD erred
in mentioning that the applicant said that he met Nick Piccirilli during his
discussions with Frank Arcadi. In fact, the applicant never met Nick Piccirilli
and does not know anyone by that name. This demonstrates that the IAD did not
have a good understanding of the record.
[26]
In
addition, the IAD criticizes the applicant’s son, Patrizio, of not being frank
with respect to his criminal past during the hearing in 2007, because he
apparently did not state that he had been charged with an offence in 2009. This
offence had not yet been committed.
[27]
The
IAD erred in the number of brothers and sisters that the applicant has in Italy.
Further, contrary to the panel’s claims, the applicant no longer has any
contact with his brothers and sisters and he never stated that he had contact
with his family in Italy.
[28]
The
IAD did not make a fair assessment of the degree of establishment and rehabilitation
of the applicant. The IAD was also not sensible and attentive to the best
interests of minor children directly affected by the deportation order.
IV. Position
of the respondent
[29]
The
respondent submitted that the applicant is seeking to have the Court reassess
the evidence in a way that is more favourable for him. It is not this Court’s
role to reconsider the weight given to each of the factors of Ribic, above.
[30]
The
respondent submitted that there was no breach of natural justice by the IAD. It
was not obliged to confront the applicant during the hearing on April 4,
2012, on the 2007 version of his testimony. In fact, if the applicant was
telling the truth, both versions would have been the same. Thus, it was open to
the IAD to make negative findings against the applicant. Further, it did not
have to confront the applicant with the violation of condition number 10, i.e.
his failure to send his parole officer’s report, because the applicant’s explanations
about it would not have changed anything.
[31]
Further,
it was established in Martinez de Quijano v
Canada (Minister of Citizenship and Immigration), 2009 FC 1232, 2009 CarswellNat 4947, that the
panel is not obligated to confront the applicant with evidence that is not extrinsic.
[32]
Finally,
the contradictions raised do not form the basis of the IAD decision. They only
corroborate the objective documentary evidence with which applicant was
confronted that he constantly minimized his criminal past to receive a stay.
[33]
The
respondent is of the view that the IAD could note all the violations to the
conditions of the stay even if they were not all raised by it.
[34]
The
respondent noted that the applicant provided contradictory testimony about his relationship
with his family in Italy, because although he stated in his affidavit that he
no longer had contact with them, he stated in 2007 that he spoke to them regularly.
[35]
In
addition, the evidence filed with respect to Projet Colisée, which was not
available in 2007, shed serious doubt on the applicant’s credibility. In
addition, the applicant was confronted with the evidence filed by the respondent
and outright denied that anything in it was true.
[36]
With
respect to the impact of his removal on his grandchildren, the IAD was sensitive
to their interests and it is open to the IAD give the weight that it considers
appropriate to this factor.
[37]
Finally,
with respect to the two errors of fact noted by the applicant, the respondent acknowledged
them, but is of the view that they are of no consequence. As for the error with
respect to the mention of Nick Piccirilli, it is clear that, rather, the IAD was
referring to Sergio Piccirilli and Mr. Varacalli.
V. Issues
1. Did
the IAD err in not allowing the applicant to provide an explanation about the
contradictions from his testimony?
2. Did
the IAD render a reasonable decision?
VI. Standard
of review
[38]
The
IAD’s obligation to allow the applicant to respond to contradictions
noted by him is a question of procedural fairness, which must be assessed on a
standard of correctness (see Azali v Canada (Minister of Citizenship and Immigration), 2008 FC 517, at para 12, 167 ACWS (3d) 164 (Azali)). The review of the
decisions rendered under paragraph 67(1)(c) of the IRPA by the IAD
must be done on a standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 58,
[2009] 1 SCR 339).
VII. Analysis
A. Did the IAD
err in not allowing the applicant to provide an explanation about the
contradictions from his testimony?
[39]
The
applicant, as a result of his criminal behaviour, became the subject of an
inadmissibility report in accordance with subsection 44(1) of the IRPA. The
ID found that the applicant was inadmissible for serious criminality under paragraph 36(1)(a)
and, consequently, a removal order was issued against him on February 14,
2006, and he therefore lost his permanent resident status (see paragraph 46(1)(c)
of the IRPA).
[40]
The
applicant filed an appeal under subsection 63(3) of the IRPA before the IAD.
On February 20, 2007, it granted a stay with conditions that was upheld on
May 30, 2008. On February 13, 2009, it was decided to wait for the outcome
of new criminal charges against the applicant before proceeding to the final
review of the stay. The file was referred for final review on January 6, 2011.
[41]
To
succeed in appeal, the applicant had the burden of proving the [Translation] “exceptional reasons”
justifying the need for him to stay in Canada (see Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, at
para 90, [2002] 1 S.C.R. 84). The applicant did not meet this
burden.
[42]
The
IAD reviewed the factors set out in Ribic, above, and found that the applicant
did not discharge his burden of showing that the humanitarian and compassionate
grounds justify upholding the stay of execution of the removal order.
[43]
Le
applicant criticized the IAD for not bringing to his attention the contradictions
between the testimony that he provided in 2007 and that of 2012 so as to allow
him to give appropriate explanations.
[44]
The
applicant testified under oath on February 20, 2007, and on April 4,
2012. In both cases, the objective of the testimony was to obtain a stay or a renewal
of the stay. The testimony was given in the same appeal process and addressed
the facts alleged against the applicant both before and after 2007.
[45]
At
the start of the hearing of April 2012, it was specified that the documents
filed during the hearing of February 2007 were part of the tribunal record
in the same way as the other documents posted subsequently. During the last
hearing, express or implicit reference was made to the witnesses of the 2007 hearing
or even to the facts initially presented. In the argument of the Minister’s
counsel, from the start, he immediately brought up the 2007 hearing and the IAD
decision.
[46]
The
applicant changed counsel three times. At the hearing of April 2012, the new
counsel of the applicant was asked by the IAD to address the factors in Ribic,
above, and the lunch break was extended to allow him to prepare himself
adequately. In the afternoon, counsel for the applicant examined him at length
although he had already examined him at the start of the hearing. Counsel for
the applicant objected, argued and asked for details during the examination by
the Minister’s counsel. He did the same when the IAD examined the applicant. He
stated at the end of the applicant’s testimony that he had [Translation] “gone around” and that [Translation] “… it [was] all for [them]”.
[47]
The
hearing of February 2007 was recorded. It was transcribed on
December 27, 2012.
[48]
The
question here is not to use extrinsic evidence, but actually the answers given
by the applicant under oath on two occasions within the same appeal process (see
Azali v Canada (Minister of Citizenship and Immigration), 2008 FC 517, at para 26, 167 ACWS (3d) 164). During testimony under oath,
the truth must be told, thus, the presumption of truthfulness applicable to the
testimony provided under oath (Maldonado v Canada (Minister
of Employment and Immigration), [1980] 2 FC 302, 31 NR 34 (CA)). When
one testifies on the same facts, one must expect that they will be of the same
tenor. If they are not, that means that the contradictory versions given do not
have the seal of truth required. Therefore, a decision-maker may draw the
appropriate conclusions from them.
[49]
In
its decision, the IAD referred to certain contradictions between the two testimonies
given and the new evidence submitted at the hearing of April 2012, which enabled
him to shed light on the applicant’s testimony in 2007, several aspects of
which were not credible:
1.
In
2007, the applicant stated that he was purchasing his drugs for re-sale in Saint-Hubert
and now he stated instead that it was [Translation]
“from some people in Montréal”.
2.
In
2007, the applicant claimed that he did not associate with people with a criminal
record, while the new evidence shows that he had associated with some.
3.
In
2007, the applicant stated that his son Tiziano had not obtained his liquor
licence for his restaurant because of his convictions for possession and trafficking
drugs, although he recently explained that it was rather the D’Amico family’s
ties with the Italian mafia that were the reason.
4.
In
2007, the applicant’s son Patrizio explained that his father worked all his
life, but that in 2002-2003 his fragile state forced him to engage in
trafficking drugs and in 2007, the applicant denied received social assistance
while he was engaging in trafficking drugs. Further, the recently filed narrative
report from 2005 contradicted these statements.
5.
The
testimony of the applicant’s son Patrizio in 2007 was also contradicted by the recent
documentary evidence with respect to his relationship with people who have
criminal records and his criminal record for offences committed in 1994.
[50]
Using
these contradictions, the IAD made the connection with the recent documentary
evidence and found that the evidence submitted by the applicant in 2007 to obtain
a stay of the removal order was not consistent with the new evidence.
[51]
In
a similar case, an applicant must submit consistent evidence on the basis of a
single factual foundation, because it is the same procedure using
different steps.
It must be presumed that during successive testimony, the same factual answers
will be given. An applicant, whose obligation is to be truthful in his answers,
does not have to be confronted with his own inconsistencies (Quijano v Canada (Minister of Citizenship and Immigration), 2009 FC 1232, at
para 30, 184 ACWS (3d) 1087).
[52]
Further,
the applicant also had the opportunity to correct the facts if needed through
his counsel during objections, questions and cross-examination. Given that the
documents submitted into evidence during the hearing of February 2007 were part
of the review of the stay of April 2012, it goes without saying that the
recording of the hearing of February 2007 was also part of it in the same way
as the decision granting the stay. In such a situation, the applicant has to
expect that the IAD has full knowledge of the file to be able to draw the
appropriate findings.
[53]
The
principles of natural justice, applicable in appeal proceedings like this one,
do not require that the applicant be confronted with his contradictions from two
testimonies given under oath during the same proceeding in connection with all
the documentary evidence submitted by the parties. It has been well established
since Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
paras 21-22, 243 NR 22, that the obligation of procedural
fairness is flexible and variable and that it rests on an appreciation
of circumstances specific to each case. In this case, the
applicant, who was duly represented by counsel, had the opportunity to be heard,
to add details or provide explanations during his examination and re-examination.
He was even invited to testify again to address each factor in Ribic, above,
which he did. Taking into account all of this, there was no breach of the rules
of natural justice that would not prevent the applicant from providing explanations
on his contradictions.
[54]
Another
argument regarding the breach of natural justice was presented by the applicant.
It was suggested that the finding that condition number 10 (obligation to
file the parole officer’s report, which the applicant neglected to do) of the 2007
IAD decision was not met should not have been addressed by the IAD without giving
the applicant the opportunity to provide his version. Counsel for the Minister
did not raise it. This condition was part of the 2007 decision granting the
stay. The applicant knew about it. He could have commented on it, which he did
not do. For the same reasons noted above, the IAD was not obliged to raise the violation
of this condition at the hearing. The applicant has the burden of showing [Translation] “exceptional
circumstances”, which includes the obligation of respecting the conditions of
the granted temporary stay. It comes within the scope of the IAD to verify
whether the conditions of the 2007 temporary stay were respected to assess the possibility
of rehabilitating the applicant.
[55]
With
respect to the importance given by the IAD to the contradictions between the
two testimonies, this is only one of the reasons why the IAD found that the factors
of Ribic, above, support the appeal being dismissed. The applicant faced
new charges following the stay, although they did not lead to a conviction. In
addition to the violation of condition number 10 of the stay of the applicant,
which was subject to the previous subsection, the IAD noted three other breaches
to the conditions imposed in the applicant’s stay:
1) the applicant
failed to inform the CBSA in writing and without delay of the criminal charges brought
against him in 2007
2) the applicant
did not provide a copy of his passport within a reasonable timeframe
3) the applicant
did not attend his appointment at the CBSA on March 20, 2008, and May 3,
2010
B. Did the
IAD render a reasonable decision?
[56]
The
applicant claimed that the IAD decision is erroneous in several respects that
make it unreasonable. The errors are as follows:
1.
The
IAD noted that the applicant’s son Tiziano testified in support of the appeal
of 2007, which is not the case. He was supposed to testify, but counsel for the
applicant stated that he would not testify because he would not add anything to
the testimony of the other son, Patrizio, who testified.
2.
The
IAD noted in the decision that the applicant met Nick Piccirerilli during
discussions with Frank Arcadi. The evidence did not show that the applicant met
this person. According to the respondent, it seems that the IAD was instead referring
to Sergio Piccirerilli and to Nick Varacelli.
3.
The
IAD alleged that, in his testimony of 2007, the applicant’s son Patrizio was
not honest because he did not talk about a charge under the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act, SC 2000, c 17 for
an offence that was allegedly committed in 2009.
4.
The
IAD erred when it noted that the applicant has three brothers in Italy when he
has two and one sister. In addition, it is erroneous to say that the applicant still
speaks to his brothers and sister when his testimony of 2012 said the opposite.
The respondent reiterated that in 2007, his testimony was that he still had contact
with his brothers and sister at Christmas, Easter or if someone was sick.
[57]
Having
reviewed the applicant’s allegations with respect to some parts of the IAD
decision, it can be noted that the errors about the fact that his son Tiziano did
not testify in 2007, the applicant’s allegation that he had never met Nick
Piccirerilli and that the applicant has two and not three brothers do not have
the importance necessary to lead to the unreasonableness of the IAD decision. These
are simple errors without consequence.
[58]
As
to Patrizio’s criminal record, Exhibit R-20 shows that, in 1994, he was
convicted for offences that contradict his testimony given in 2007, during
which he stated that he had no criminal record. The IAD also noted that Patrizio
was the subject of additional criminal charges in 2009. Thus, the IAD simply
related the fact that Patrizio did not give an honest answer in 2007 about his criminal
past and did not commit any error.
[59]
Finally,
the applicant’s recent testimony is that he no longer speaks to his brothers
and sister in Italy. The Court noted that according to his testimony in 2007, he
was speaking to them at least twice a year, as noted above, and this fact was
related in the IAD decision. This finding of the IAD in no way justifies declaring
the decision unreasonable.
[60]
Considering
the IAD’s decision, the analysis of the seven factors in Ribic, above, the
objectives of the IRPA with respect to the security of Canadians and the documentary
evidence submitted by the parties for both the 2007 hearing and the 2012
hearing, the following IAD finding is reasonable and justified:
“[129] The panel is of the opinion that the appeal
must be dismissed. The panel is of the opinion that an extension of the stay
would not be appropriate in this case because the appellant has not
demonstrated a real possibility of being rehabilitated. The appellant’s
disregard for the warnings from immigration authorities in 1998 and in 2005, as
well as his lack of respect for the conditions of stay imposed by the panel in
2007, demonstrate that the appellant had many opportunities to show that he
could be rehabilitated. One can only conclude that in 2012, this possibility no
longer exists—if, in fact, it was ever grounded in reality at all.”
[61]
Therefore,
the application for judicial review of the IAD decision dated July 20,
2012, is dismissed.
[62]
The
parties were invited to submit a question for certification, but none was
proposed.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review
of the IAD decision dated July 20, 2012, is dismissed. No question will be
certified.
"Simon Noël"
_________________________
Judge
Certified true
translation
Catherine Jones,
Translator
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