Docket: IMM-3613-15
Citation:
2016 FC 172
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 9, 2016
PRESENT: The Honourable Mr.
Justice Gascon
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BETWEEN:
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THE MINISTER OF
PUBLIC SAFETY
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AND EMERGENCY
PREPAREDNESS
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Applicant
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And
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CLEJEUNE LOUIS
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The respondent, Clejeune Louis, is a citizen of
Haiti. In 1994, at the age of five, he obtained permanent resident status in
Canada as a dependant accompanying his father, who was then being sponsored by
his wife. In February 2009, Mr. Louis was sentenced to six months in prison for
drug trafficking. A deportation order on grounds of serious criminality was
filed against him in July 2009.
[2]
On March 18, 2010, the Immigration and Refugee
Board of Canada’s Immigration Appeal Division (IAD) decided to stay the
execution of the deportation order, with certain conditions, for humanitarian
reasons. This stay was valid for a five-year period, until March 2015. IAD
upheld the deportation order’s stay of execution at two interim reviews held in
December 2011 and April 2013.
[3]
In July 2015, at a third review, a commissioner
from IAD (the Tribunal) upheld and extended for an additional year, until July
20, 2016, the stay of the execution of the deportation order issued against Mr.
Louis. Today, the Minister of Public Safety and Emergency Preparedness is
applying, under subsection 72(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27, for the judicial review of this Tribunal decision.
The Minister submits that the decision was unreasonable and that the Tribunal
had no evidence that Mr. Louis would be subjected to significant hardships upon
his return to Haiti, namely one of two factors upheld by the Tribunal in its
decision to maintain the stay of execution of the deportation order for
humanitarian reasons.
[4]
The only issue in question is to determine
whether the court’s decision to uphold and extend the stay of execution of the
deportation order against Mr. Louis is unreasonable.
[5]
For the following reasons, the Minister’s
application for judicial review must be dismissed because the Court concluded
that the Tribunal’s decision was reasonable and fell within the range of
possible acceptable outcomes under the circumstances. The Court is satisfied
that the Tribunal weighed the different elements of the evidence in the record
with respect to the applicable principles and could reasonably determine
whether there were humanitarian reasons to justify the special measure to
extend the stay. The Minister is essentially contesting the assessment of the
evidence that the Tribunal made in its decision, which is not sufficient to
justify the Court’s intervention.
II.
Background
A.
Decision
[6]
In its decision, the Tribunal studied the
relevant factors listed in Ribic v. Canada (Minister Employment and
Immigration), [1985] I.A.B.D. No. 4 (Ribic) to determine
whether there was reason to extend, for humanitarian reasons, the stay of the
deportation order imposed upon Mr. Louis. These factors included the gravity of
the offence underlying the deportation order against Mr. Louis and his
potential for rehabilitation; the circumstances underlying the order; the
period of time spent in Canada and Mr. Louis’s level of assimilation; the
presence of family members in the country and the upheaval that the deportation
could cause for Mr. Louis’s family; the support Mr. Louis received; and the
severity of the difficulties that Mr. Louis would endure if returned to Haiti.
[7]
The Tribunal noted that these factors were not
extensive and that their respective value varied depending on the circumstances
of each case.
[8]
First, the Tribunal noted that the sentence
imposed on Mr. Louis in 2009 was his only criminal conviction and that he had
not committed any criminal acts since that time. The Tribunal placed great
value on this absence of recidivism. However, the Tribunal noticed that Mr.
Louis had not made a serious effort at rehabilitation and that, despite having
been in Canada for over 20 years, he still did not show a high level of
assimilation. This lack of assimilation was a negative factor in the Tribunal’s
assessment.
[9]
In addition, the Tribunal noted that Mr. Louis
did not maintain contact with family members living in Canada and that the only
community support he received came from negative influences. Nevertheless, the
Tribunal pointed out that Mr. Louis had moved to another city to get away from
these negative influences and to get a new job.
[10]
With respect to the significance of the
hardships he might endure upon returning to Haiti, the Tribunal referred to the
fact that his mother, living in Haiti, was not involved in Mr. Louis’s life and
to Mr. Louis’s testimony that he was afraid to be judged by his mother after
his return to Haiti. The Tribunal added that, although Mr. Louis had not made a
statement to this effect, it was convinced that Mr. Louis [translation] "would endure significant hardships should he return to
a country in crisis, a country he had left as a child and where he had neither
emotional nor material support." The Tribunal placed a great deal
of importance on these potential difficulties.
[11]
In terms of its analysis, the Tribunal agreed
that Mr. Louis’s lack of recidivism since the original offence, as well as
hardships he would endure upon returning to Haiti, justified upholding the stay
for an additional year, despite the existence of other, more numerous negative
elements. Having considered Mr. Louis’s testimony, the documentary evidence and
the parties’ presentations, the Tribunal finds that, under the circumstances,
there are humanitarian reasons justifying the taking of special measures and
authorizing it to stay the deportation order for an additional year, under the
conditions stipulated in the decision.
B.
Standard of review
[12]
The assessment of the evidence at the
Tribunal’s disposal is a mixed question of fact and law, which is subject to
the reasonableness standard of review. Neither of the parties contested this.
It was, however, well established that, upon the IAD review of a stay of
execution of a deportation order, the Tribunal’s evaluation of the evidence
falls entirely under its jurisdiction and must be examined according to the
standard of reasonableness (Chieu v. Canada (Minister of Citizenship and
Immigration), 2002 SCR 3 (Chieu) at paragraphs 40-41 and 90; Dunsmuir
v. New Brunswick, 2008 SCR 9 [Dunsmuir] at paragraph 47; Iamkong
v. Canada (Minister of Citizenship and Immigration), 2011 FC 355 at
paragraph 27; Abdallah v. Canada (Citizenship and Immigration), 2010 FC
6 at paragraph 23).
[13]
This characteristic of reasonableness is
concerned with the justification of the decision, the transparency and the
intelligibility of the decision-making process, and of whether the decision
falls within a range of possible acceptable outcomes that are defensible in
respect of the facts and law. The reasons behind a decision are considered to
be reasonable "if the reasons allow the reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable
outcomes" (Dunsmuir at para. 47; Newfoundland and
Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011
SCC 62 (Newfoundland Nurses) at paragraph 16). In this context, the
Court must show restraint and respect toward the Tribunal’s decision and cannot
substitute its own reasons. However, it may, if necessary, "look to the
record for the purpose of assessing the reasonableness of the outcome" (Newfoundland
Nurses at paragraph 15).
III.
Analysis
[14]
The Minister submits that the Tribunal’s
decision is unreasonable and arbitrary because it is contrary to the evidence
that was presented to it. More specifically, the Minister emphasizes that the
Tribunal had no evidence to the effect that Mr. Louis would be subjected to
significant hardships should he return to Haiti, which is one of two factors
specifically upheld by the Tribunal in its decision to maintain the stay of
execution of the deportation order. The Minister adds that, because IAD is not
a court with specialized knowledge in the same way as the Refugee Protection
Division (RPD), the Tribunal could not take judicial notice of prevailing
conditions in Haiti in the absence of evidence presented by Mr. Louis.
[15]
The Minister specifically insists on the passage
in the decision where the Tribunal affirms that, although Mr. Louis
[translation] "had not made a statement to this
effect," the Tribunal remains convinced that Mr. Louis would endure
significant hardships should he return to Haiti. The Minister claims that the
Tribunal’s record does not contain evidence enabling it to support the Tribunal’s
comments concerning the country in crisis in which Mr. Louis had not lived
since he was a child, and concerning the lack of emotional and material support
for Mr. Louis in Haiti. The Minister emphasizes that in the hearing’s transcription,
Mr. Louis makes only one reference to the fact that his mother would judge him
unfavourably upon his return to Haiti and that Mr. Louis had nothing further to
add.
[16]
The Minister submits that, given the lack of
evidence for one of the two criteria specifically mentioned and upheld by the
Tribunal to justify the extension of the stay of the deportation order, the
Tribunal’s decision is unreasonable and may not fall within the range of
possible acceptable outcomes.
[17]
Mr. Louis submits that the Tribunal could not
reasonably conclude that, under the circumstances, the absence of recidivism
and the hardships that Mr. Louis would endure in Haiti were sufficient factors
to justify the temporary extension of the stay of the deportation order (Alvarez
v. Canada (Minister of Citizenship and Immigration), 2014 FC 702 at
paragraph 5).
[18]
The Court does not agree with the Minister’s
position and does not subscribe to its arguments. Instead, it is the Court’s
opinion that this record does not concern a situation in which there was a
complete lack of evidence to support the Tribunal’s decision. The Tribunal
based its decision to extend the stay of the deportation order on two elements:
the absence of recidivism on Mr. Louis’s part and the hardships that he might
endure upon returning to Haiti. Following its examination, the Tribunal gave
these elements greater weight than the other negative elements in its
assessment of the various factors analyzed.
[19]
The Court first emphasizes that it is well
established that the relevant factors to be considered in the assessment of
humanitarian reasons to stay a deportation order are those established in Ribic
and adopted by the Supreme Court in the Chieu judgment and by the
Federal Court of Appeal in Ivanov v. Canada (Minister of Citizenship and
Immigration), 2007 FCA 315. The Tribunal indeed had recourse to all these
factors in its decision, mentioned and considered them in its reasons, and
explained how they contributed in a positive or negative way to its analysis.
[20]
With respect to the absence of recidivism, the
Minister did not deny that the evidence in the record supports the Tribunal’s
factual findings. The Court notes that the record does support the Tribunal’s
analysis and that the absence of recidivism certainly constitutes a criterion
on which the Tribunal could base its decision and to which it could reasonably
grant a significant value.
[21]
With respect to the difficulties Mr. Louis would
face in Haiti, Mr. Louis told the Tribunal during the hearing that he feared
being judged and ridiculed because of his criminal conviction if he were sent
back to Haiti. From the Tribunal’s record, it also appears that certain
representations about the conditions that Mr. Louis would face in Haiti had
been made by his former counsel during earlier reviews before IAD. In addition,
in the IAD decision following the April 2013 review, which is part of the
Tribunal’s record, IAD referred to the fact that Mr. Louis had left Haiti when
he was five years old, had not had contact with his mother in Haiti for many
years and had not set foot in that country since 2000. IAD found that Mr. Louis
would face significant difficulties if he had to return to Haiti and adapt to a
country that was unfamiliar to him.
[22]
Given Mr. Louis’s age upon his arrival and the
lack of contact with his country of origin over the years he spent in Canada,
it is the Court’s opinion that it was not unreasonable for the Tribunal to
mention that Mr. Louis would face difficulties in Haiti should he be required
to return there. The Tribunal’s observations regarding the fact that Mr. Louis
has had no knowledge of Haiti since he was a child and that he has no emotional
support in this country cannot be qualified as being completely dissociated
from the evidence in the record or as being unreasonable under the
circumstances.
[23]
The Court acknowledges that, as the
Minister’s counsel pointed out, the Tribunal’s affirmation that Mr. Louis would
have no material support were he to return to Haiti does not rest on clear
evidence to this effect in the Tribunal’s record. However, when the Tribunal’s
evidence and record are considered as a whole, the Court is not convinced that
there is a complete lack of evidence to support the Tribunal’s findings
regarding the significant hardships Mr. Louis might endure, to the point of
making said findings unreasonable.
[24]
The Court understands that the Minister may not
find this evidence sufficient to justify the Tribunal’s comments regarding this
element, but it is not of the opinion that the limits of the evidence on which
the Tribunal relied are enough to render the decision unreasonable. The
standard of reasonableness requires respect, and the Court must simply
determine whether the Tribunal’s findings fall within
"a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law" (Dunsmuir at paragraph 47). If the
process and the outcome in question are consistent with the principles of
justification, transparency and intelligibility, the Court cannot replace it
with an outcome that would be, in its opinion, a preferable one (Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12 at paragraph 59).
[25]
Despite the effective representations made by
the Minister’s counsel, the disagreements raised with respect to the Tribunal’s
conclusions do not justify the Court’s intervention in this case. The Court
certainly shares the Minister’s concerns about the slim evidence on which the
Tribunal seems to have relied in concluding that Mr. Louis would face serious
difficulties were he to return to Haiti. Had the Court been in the Tribunal’s
position, it may have assessed the evidence differently, granted a different
relative weight to the relevant factors, and come to a different final
conclusion. However, in the context of judicial review, the Court must
determine whether the Tribunal’s decision was reasonable, and the Court is not
convinced that, under the circumstances in this record, this decision falls
outside the range of possible, acceptable outcomes in respect of the facts and
the law.
[26]
When the Court reviews a decision according to
the standard of reasonableness, its role is not to substitute its own
assessment of the evidence for that of the decision-maker (Kanthasamy v.
Canada (Minister of Citizenship and Immigration), 2014 FCA 113 (Kanthasamy)
at paragraph 99). The Court’s mission is not to reassess the pieces of evidence
in the record but rather to limit itself to learning whether a finding is
irrational or arbitrary in nature, such as the total lack of fact-finding or
the lack of any acceptable basis for the findings of fact that were made.
[27]
The Court adds that, in the end, the Tribunal
considered all relevant factors developed by the Ribic case and
confirmed by the subsequent judgment, placed the emphasis on two of these
factors (the absence of recidivism and the potential for significant hardships)
and assigned them a greater relative weight in order to agree upon the
existence of humanitarian reasons justifying a special measure, such as
extending the stay of the deportation order. It is not up to the Court to
reassess the relative weight that the Tribunal gave to different relevant
factors (Chieu at paragraph 40; Kanthasamy at paragraph 99).
[28]
The arguments advanced by the Minister regarding
the Tribunal’s findings and its assessment of the evidence do indeed ask that
the Court substitute its opinion and its reading for those of the Tribunal.
However, this is not the Court’s role with respect to judicial review. As the
Tribunal explained at the beginning of its decision, it was able to consider Mr.
Louis’s testimony, the documentary evidence and the parties’ representations as
made before the Tribunal and in the record. It is assumed that the Tribunal
considered and took into account all the evidence without being required to
refer to every constituent element (Newfoundland Nurses at paragraph 16;
Kanagendren v. Canada (Minister of Citizenship and Immigration), 2015
FCA 86 at paragraph 36).
[29]
To echo what the Court said in Moreno v.
Canada (Minister of Citizenship and Immigration), 2011 FC 841 at paragraph
15, many small, immaterial errors are not enough to render a decision
unreasonable. An imperfect decision is still reasonable. The standard of review
is not the perfection of the decision but rather its reasonableness. Therefore,
in this case, there is no reason for the Court to intervene.
IV.
Conclusion
[30]
For the above-mentioned reasons, the application
for judicial review by the Minister is dismissed. The Tribunal’s decision that
an additional stay of Mr. Louis’s deportation is justified is transparent and
intelligible, and it falls within the range of possible, acceptable outcomes
that are defensible in respect of the facts and the law. This is not a
situation where there is a total lack of evidence supporting the Tribunal’s
decision.
[31]
The parties did not raise any questions for
certification in their written or oral representations, and the Court agrees
that there are none in this case.
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