Date:
20130507
Docket:
IMM-9085-12
Citation:
2013 FC 477
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, May 7, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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CARLOS SANTANA
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
decision is in response to an application for judicial review following the
rejection, by the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board (IRB), of the applicant’s appeal of a removal order against him.
[2]
The
applicant is inadmissible on grounds of serious criminality, under paragraph
36(1)(a) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA), and he did not challenge the validity of his removal order. The
applicant’s arguments are based on humanitarian and compassionate considerations.
[3]
The
applicant is a person described in paragraph 36(1)(a) of the IRPA as a
permanent resident who is inadmissible on grounds of serious criminality, after
he was convicted of an offence punishable by a maximum term of imprisonment of
at least ten years.
[4]
The
Supreme Court of Canada has already decided that the standard of judicial
review in these types of cases is reasonableness (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph
60).
[5]
The
applicant was previously involved in violent crimes. He states that he was
under the influence of alcohol and that he attempted to resist his arrest by
police.
[6]
His
criminality began when he was 24 years old and already an adult.
[7]
The
applicant was convicted of evasion and, two years after that, of break and
enter.
[8]
Given
his background of multiple convictions, including trespassing at night,
obstruction, break and enter and obstruction, failure, six breaches of
conditions and possession of drugs and substances (cannabis and crack), the
panel reasonably concluded that the applicant was not in a situation of having
committed an isolated act, but that he was guilty of multiple convictions.
[9]
According
to the applicant, there is no connection between himself and Venezuela, his
country of origin; nonetheless, he admitted that he has a basic knowledge of
Spanish. He did not submit evidence that his psychiatric condition could not be
treated in Venezuela.
[10]
He
does not have strong ties to his family home (Khosa, above); therefore,
there are insufficient humanitarian and compassionate grounds.
[11]
The
factors set out in Ribic v Canada (Minister of Employment and Immigration),
[1985] IADD No. 4 (QL/Lexis) were considered according to Chieu v Canada
(Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at
paragraph 66, as well as Khosa, above, at paragraph 60.
[12]
The
applicant has not re-offended since 2008, but he was unable to demonstrate that
he is on the road to rehabilitation, given that he continues to consume drugs
and alcohol (see CHUM report dated August 22, 2011 – decision at para 23).
[13]
The
applicant’s degree of establishment in Canada and the effects on his family in
Canada are of lesser significance, based on the facts, than those in Khosa
(above).
[14]
The
arguments with respect to the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982 (R-7), being Schedule B to the Canada
Act (U.K.), 1982, c 11, are premature, as is the matter of his removal,
which is moot and has yet to be decided. That is for a stage which has yet
to be reached by the decision-maker.
[15]
Furthermore,
the respondent himself has noted that the applicant will have an opportunity to
apply for a pre-removal risk assessment under section 112 of the IRPA.
[16]
It
is not for this Court to re-weigh the evidence; this has already been done in a
reasonable way by specialized decision-makers.
[17]
For
all of these reasons, the Court dismisses the applicant’s application for
judicial review.
JUDGMENT
THE
COURT ORDERS the dismissal of the applicant’s application for
judicial review; there is no question of general importance for certification.
“Michel M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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