Docket: IMM-4101-15
Citation:
2016 FC 262
Toronto, Ontario, March 1, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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HUSSEIN MOHAMED AL-ABDI
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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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JUDGMENT AND REASONS
[1]
The present Application concerns the May 26,
2015 decision of the Immigration Appeal Division of the Immigration and Refugee
Board (IAD) made pursuant to s. 68 of the IRPA dismissing an appeal brought
by the Applicant against a deportation order made on November 7, 2001. On
September 10, 2004, the IAD granted a stay of deportation for three years.
Since that time to the date of the decision presently under review the stay has
been extended on the imposition of conditions to be met by the Applicant.
[2]
A critical feature of the case placed before the
IAD was a joint submission made at the end of the hearing by Counsel for the
Applicant and Counsel for the Respondent for a further stay of deportation for
the period of one year. Counsel for the Applicant argues that the IAD’s
handling of the joint submission resulted in a breach of a duty of fairness
owed to the Applicant. For the reasons which follow, I agree with his
submission.
[3]
There are two components to the decision-making
under review which require examination. The first is the standard of fairness
that the IAD was required to meet, and the second is, on the evidence of the
process of decision-making on the record, whether the standard was met.
I.
The Standard of Fairness
[4]
By Justice Lemieux’s decision in Malfeo v
Canada (M.C.I.), 2010 FC 193 (Malfeo) at paragraphs 12 to 16, this
Court has set clear expectations of the IAD with respect to fair consideration
of a joint submission as emphasized:
The use of joint submissions is a concept well-known
in criminal law where the Crown and the defence make joint submissions, for
example, in sentencing. It is not unknown in administrative law cases and has
been applied by this Court in the context of immigration law (see Nguyen v.
Canada (Minister of Citizenship and Immigration), 196 F.T.R. 236), a case
which bears similarity with the case at hand since it involved an application
by Mr. Nguyen to the then Appeal Division for the exercise of its humanitarian
and compassionate jurisdiction under a provision of the now repealed
Immigration Act similar to paragraph 67(1)(c) of IRPA. That case involved the
failure of the tribunal to explain why the joint submission of counsel
proposing a five year stay was not endorsed. The purpose of staying the deportation
is, in that case as it is in this case, to give the applicant an opportunity to
demonstrate, on the ground so to speak, becoming a decent law abiding resident
of this country.
Borrowing upon criminal law jurisprudence,
but appreciating the clear distinction between a deportation which is non
criminal and the criminal context, this Court wrote at paragraph 11 as follows:
Nevertheless, I am attracted to the
underlying rationale behind joint submissions in a section 70(1)(b) case where
the tribunal's jurisdiction is quite wide, the reasons for the deportation in
this case are based on criminal offences and the factors outlined in Chieu,
supra, (seriousness of the offence, possibility of rehabilitation, impact of
the crime on the victim, remorsefulness of the applicant) are analogous to the
matters which are taken into account in sentencing upon conviction.
I cited certain extracts from the Quebec
Court of Appeal's judgment in R. v. Dubuc, 1998 CanLII 12524 (QC C.A.),
(1998), 131 C.C.C. (3d) 250, written by Justice Fish, then of that Court, which
set aside the sentence and substituted the sentence jointly suggested. Fish
J.A. wrote:
[...] I repeat, the trial judge was
not bound by the shared submission of counsel. For appropriate reasons,
explained even summarily, he was entitled to depart from the sentence jointly
proposed. The judge could properly accept or reject the submission. But not
disregard or ignore it. Still less, simply overlook it.
Justice Fish in Dubuc also stated "serious
consideration" should be given to by the court to the submissions of
Crown counsel and "it should not lightly be disregarded".
In Nguyen, reference was also made
to the Manitoba Court of Appeal's judgment in R. v. Chartrand, (1998),
131 C.C.C. (3d) 122 where Kroft J.A. stated the following:
A sentencing judge is not bound to
accept the submission, but it should not be rejected unless there is good cause
for so doing. This case does not fall into that category.
[Emphasis added]
II.
Evidence of the Process
[5]
To determine whether the expectations with
respect to fair consideration of a joint submission were met by the IAD Member
who delivered the decision, there are four necessary points of evaluation to be
considered in context: the content of the submission; how it was delivered, how
it was received, and how it was considered in reaching a conclusion. The
official transcript of the hearing before the Member provides evidence on each
of the four points. In the quotations from the transcript which follow, certain
passages are emphasized as particularly relevant to the determination of the
present Application.
A.
The Joint Submission: Content, Delivery,
and Reception
[6]
After the Applicant gave his evidence in support
of his extension request and upon questioning by the Member, his Counsel, and the
Minister’s Counsel, the following passage provides evidence of the first three points
of evaluation:
PRESIDING MEMBER: All right. Thank you, sir.
Those are all my questions.
APPELLANT: Thank you.
PRESIDING MEMBER: I don't know if - did you
have any redirect?
COUNSEL: No, none, thank you.
PRESIDING MEMBER: Okay, all right. So we'll
go right to submissions.
COUNSEL: I wonder if I might have a brief
recess to speak with my friend ---
PRESIDING MEMBER: (Inaudible).
COUNSEL: --- please.
PRESIDING MEMBER: Okay.
I'll come back in ten minutes.
COUNSEL: Thank you.
PROCEEDINGS RECESSED -----
PROCEEDINGS RESUMED ---
PRESIDING MEMBER: Okay.
We're back on the record, and we'll go ahead with submissions.
COUNSEL: Yes. Thank
you for the opportunity to speak with my friend. In the course of our
discussions, I think it's fair to say that we agree that an appropriate
decision would be to stay the removal order for a further one-year period.
PRESIDING MEMBER: Mm-hmm.
COUNSEL: My – I know that my friend wishes to put his submissions
on the record, and I know that you'll give him an opportunity to do that.
PRESIDING MEMBER: Mm-hmm.
COUNSEL: I don't want to be lengthy but I think it's agreed that an extension of the stay, I mean, is an appropriate one in this particular case. Mr. Al-Abdi has been in Canada now, I think,
27 years. He came here in 1988.
He's had- he had criminal convictions that
led to his removal order being made a number of years ago.
He has no convictions for a period of years. He has, we know, had some
charges in 2013, 2014, but they
were either withdrawn or dismissed. There were no convictions.
He, as the member -
as Member Chung stated in paragraph 13 of his reasons for the most recent extension of stay, Mr. Al-Abdi
remains, to use the member's
words, minimally established in Canada for the 23 years that he has lived here.
It's more than 23 now, but I think that comment is still appropriate.
He is minimally established. He has a
minimal amount of social assistance with which he pays his rent and has $250.00 left over. He works periodically.
It's been a long time since he worked on a fulltime basis. He has testified
that he continues to look for employment but has so far been unsuccessful.
He isn't in a position, I think, reasonably
to pay off his fines; that's for sure. And it would probably be difficult for
him to pay something towards those fines, but he has indicated that he's
prepared to do that to make an effort at least.
In terms of the passport application, his
efforts at trying to get a passport were, I mean, doomed to failure. I think,
to send a letter to the Ugandan High saying, send me a passport, is not
appropriate.
The difficulty I've had is, representing him
over the years, it's Legal Aid and, you know, when the hearing's over, then the
certificate's finished, so you can't continue to help him as much as you might
want to over a period of time until he's able to obtain another certificate.
And then in this particular case, by the time he did that, it was too late to
respond to the request for reconsideration and the appellant's statement. So
you end up at a hearing.
He's- we now have a passport application and
some assistance in accessing the information about the application and -
because my friend has provided it and Mr. Al-Abdi has indicated that he's
prepared to sit down with me and draft that application and provide a copy to
the Minister and that he's prepared to make some efforts to obtain the fee that
would be necessary to pay that-for that application. And I've undertaken to
assist him in that regard.
He's been here a long time. He's, I wouldn't
say incapable of complying with the conditions, but he's – he needs to be
encouraged, and it's difficult for him to do some of these things. He's
forgetful; he's confused. He needs some help and direction in attempting to
comply with them. I don't think it's out of any bad intent. He's willing to
comply. He's come here today.
And I think he, in my submission, deserves
that opportunity given that he hasn't compounded his criminal convictions over
the years. He's been conviction-free for a long time and it would be
inappropriate, in my submission, to remove him from Canada at this point.
Subject to any questions you have, those are my submissions.
PRESIDING MEMBER: Thank
you.
MINISTER'S COUNSEL: The
Minister was concerned about the appellant's testimony today. There is an
overall lack of understanding of the seriousness of what has brought us here
today, no real explanation about why he didn't comply.
And we are here; we are almost 11 years
further in the process, still without a passport, still without any efforts
made toward paying the fines, other breach of the conditions, failure to report
when directed, failure to report charges. All this lends itself to one
questioning whether the appellant cares about this process. And certainly, the
Minister has significant concerns about the ongoing repeated lack of compliance
here.
However, on the other hand, it must be acknowledged that the conviction that has
brought us here today occurred in 1998. It, although a serious offence - the sale of drugs is a very serious
offence - it was a $20.00 sale of crack cocaine, and he has been
conviction-free since 2003 according to my records.
We still have the issues that we had 11
years ago. And at this point, the Minister's not satisfied the appellant
intends to comply with these conditions. It seems like he simply wants to wait
it out and see until it goes away, and the Minister's not willing to allow
that.
And I have spoken with my friend. He did
advise that he would assist at this point with the completion of the travel
document and make efforts to have that submitted or at least the application
and a money order towards the application submitted to the agency.
The appellant has advised that as recently
as January 2014, he was working cash jobs to pay for his crack cocaine. That type of work that he does can certainly
be used to pay some token amount towards the fines.
There's an acknowledgement he's on a very
fixed income. However, there's no physical barriers to him working. And there's
an expectation that the fines were incurred; it's his responsibility to pay the
fines. The Minister would expect that he begin payment commensurate with his
levels of income.
But based on a weighing of different
factors, the fact that the appellant does appear to be a relatively low risk in
terms of public safety, at the same time lack of compliance with previous
conditions, ongoing repeated lack of compliance, the one-year stay in the
Minister's position is appropriate with the expectation that the efforts be put
forward.
And the appellant has repeatedly stated over
and over again, he made a mistake, he made a mistake. He comes to these
hearings and says he'll do whatever he needs to do and then leaves the hearings
and doesn't do them.
So, ultimately, I've spoken with my
friend and this needs to be done and the Minister expects that this will be a
last chance for the appellant to show that he's serious about complying with
the conditions. Those are my submissions. Thank you.
B.
The Joint Submission: Consideration
[7]
Immediately following Counsel for the Minister’s
submission, the Member proceeded to deliver the decision presently under
review:
PRESIDING MEMBER: Okay. Okay, sir, I'm prepared to render an oral decision, and a copy
of it will be sent to you and it will be edited for syntax and grammar. I just want to confirm with you before I start that your address is still 1037 Gerard Street East ---
APPELLANT: Yeah.
PRESIDING MEMBER: --- 2nd Floor---
APPELLANT: Yeah.
PRESIDING MEMBER: ---Toronto,
Ontario M4M IZ6. This is the
hearing of a reconsideration of a removal appeal brought by Hussein Mohamed
Al-Abdi, the appellant, against a deportation order made November 7, 2001
pursuant to Section 27(1)(d) of the former Immigration Act.
On September the 10th, 2004, the
deportation order was stayed for three years with conditions by Member Wist (ph).
A second review, a reconsideration took
place. An extension of the stay was granted by Member Bohr (ph) on December 20, 2005.
On July 30, 2009, Member Dolan (ph) again
extended for one year followed by Member Lee (ph) who extended for six months
on October 18, 2012.
And then Member Chung (ph) gave the
appellant one more year to comply with the condition 2 of Member Lee's
decision, which was to provide a copy of his passport or travel document or to
provide a completed application for a passport or travel document or to provide
evidence of ineligibility for such. The appellant was also to provide evidence
of payment of his outstanding fines.
Minister's Counsel has provided a written
statement entered as Exhibit R-1 today indicating that the appellant has failed
to comply with his conditions. Counsel did not disagree with the contents of
the written statement.
The appellant has not produced a passport or
travel document. He has not provided evidence that he's not entitled to one.
The appellant has failed to appear for
reporting. He's failed to notify CBSA of additional drug charges that occurred
in 2013 and 2014, which have since been withdrawn. And he has not provided any
evidence of repayment of fines. The updated information provided in Exhibit R-2
from the Minister shows outstanding fines in the amount of $1,327.00.
The appellant is represented today and he
has provided a package entered at A-1 of a letter that was written to the
Ugandan Embassy and a copy of- a partial copy of one of his Ontario Works
stubs.
There's no challenge to the legal
validity of the order. At the close of the hearing, Counsel and Minister's Counsel
agreed that a one-year stay to enable the appellant to comply with conditions
was appropriate.
In this reconsideration, the onus to
demonstrate humanitarian and compassionate factors remains with the appellant.
I'm guided today by the Ribic factors that were also confirmed in the
Supreme Court cases of Chieu and Al Sagban and more recently in Kolsa
(ph).
The Ribic factors include
consideration of the seriousness of the offence that led to the removal order,
the possibility of rehabilitation, length of time in Canada, establishment,
family in Canada, dislocation to family by removal, the degree of hardship to
the appellant, any best interest of any children that might be affected by the
decision. These factors are not exhaustive and weight varies according to
everyone's case.
The panel is also guided today by
objectives of IRPA, which the panel views as very important. One is to protect
the public safety and maintain security of Canadian society and to deny access
to Canadian territory to persons who are criminals.
The appellant was born in Uganda and became
a permanent resident in 1965. He was landed during the refugee backlog process.
[…]
[Emphasis added]
(Certified Tribunal Record (CTR), pp. 407 –
410)
[8]
At this point in the delivery of the decision,
the Member conducted a review of the evidence against the factors identified.
On the issue of drug addiction and the Member’s concern for public safety, the
following opinion was expressed:
The appellant indicated at his last hearing
before Member Chung that he had not used crack cocaine in over one and a half
years and that he was not addicted.
It is noted that the panel had new charges
relating to possession of crack cocaine in 2013 and 2014. And while it's noted
that those have been withdrawn, the panel does have some concerns given the
appellant's history.
The appellant today with respect to the use
of crack cocaine candidly admitted to continued use in that once or twice a day
he was using last January 2014 for a period of - excuse me- a few months. He indicated
in testimony, when asked by Minister's Counsel how he overcame this recurring
addiction, that he had stopped through prayer.
It's noted by the panel that in fact the
appellant had represented at past hearings that he had used crack cocaine and
that he had stopped as well. He has not provided any evidence of engaging in
any treatment plans or counselling [sic]. And actually, this was of concern at
Member Chung's review where it was noted that he hadn't completed program that
he had entered into in 2012 and 2013 for rehabi1itative purposes.
With respect to the issue of the criminal
offences relating to the crack cocaine, the panel does not find that the
appellant has shown any strong possibility of rehabilitation. There's a
continuing pattern of falling back into the use of the illegal drug and there
is no evidence that the appellant appreciates the hard work and commitment to
treatment that is associated with overcoming an addiction like that.
[…]
[Emphasis added]
(CTR), p. 411)
[9]
Following the completion of the detailed
examination of the Applicant’s history, including the evidence produced at the
hearing under consideration, the Member made the following emphasized key
findings with respect to public safety and the joint submission:
Upon questioning, the appellant reiterated
he made a mistake and he'll make it right now. These are the same assertions that have been made at five
previous IAD reconsiderations.
I think at a certain
point, while the appellant may be well-meaning with these assertions as Counsel
points out, at a certain point he has to take responsibility for his failure to
follow through. The panel has to be mindful of public safety issues and also
of the public purse. Six chances to get it right with really very minimal
expectations being set out, I think is adequate.
I don't think that the appellant's previous
chances were all premised on expressions of intentions. And they were also- his stays were also premised on his
intentions of rehabilitation. And I think the continued use of crack cocaine and the continued efforts
to work only minimally to obtain crack cocaine certainly show that the reliance
placed on those intentions by previous members were not actually justified.
As noted at the close of the hearing, Minister's
Counsel and Counsel recommended a one-year stay, and I don't take those submissions
lightly. However, I think
that five chances to get this right is enough.
Having considered all of the evidence before
me, the appellant has not established on the balance of probabilities, taking
into account the best interest of a child directly affected by the decision,
that there are sufficient humanitarian and compassionate considerations to
warrant special relief in light of all the circumstances of the case.
The panel is not satisfied that the
appellant will ever comply with the conditions of the stay. And public policy
considerations and public safety concerns now outweigh the humanitarian and
compassionate factors in his favour.
As a result, the
appeal is dismissed. Thank you, Counsel, and --
COUNSEL: Thank you,
Madam Member.
PRESIDING MEMBER: ---Minister's
Counsel.
MINISTER'S COUNSEL: Thank
you, ma'am.
---- REASONS CONCLUDED-----
[Emphasis added]
(CTR, p. 413)
III.
Conclusion
[10]
There is a difference between an argument advanced
by one of the parties to a litigation, and a joint submission presented by
Counsel for both parties. An argument may be rejected by providing a
supportable reason. A joint submission is not an argument; it is an agreement
between the parties which goes directly to removing issues in the litigation
from determination. This is why the law has established the principle that a
joint submission must not be disregarded. A finding as to whether regard was paid
to a joint submission is case dependent. That is, on judicial review an
evaluation must be made of the nature of the impact of the joint submission on
the person or persons directly affected, which in turn defines the quality of regard
expected of the decision-maker to whom the joint submission is directed. The
issue in each individual case is whether the joint submission was fairly
regarded.
[11]
In the present case Counsel for the Applicant
argues that the joint submission was not fairly regarded because it was dismissed
outright without meaningful consideration. The argument is advanced because
Counsel had no way of knowing the Member’s thoughts about the submission before
the final decision was rendered because no dialogue occurred between the Member
and Counsel during the course of the hearing. Counsel for the Respondent argues
that there was no duty on the Member to so engage, and cautions about creating
a precedent by imposing such an obligation. I find that I do not need to give
an opinion on this discrete issue because the problem with the over-all process
of decision-making in the present case is much more serious.
[12]
Upon considering the evidence, it is clear that
the Member came well prepared for the hearing. The 2000 word oral decision
delivered immediately following the completion of the evidence and argument
establishes that, before the hearing, careful research was undertaken with
respect to the Applicant’s experience before the IAD, and further, careful
thought was given to the outcome of the proceeding.
[13]
There is certainly nothing wrong with a
decision-maker undertaking an effort before a hearing to research and to learn
the contents of the available record upon which an application is based. There
is also nothing wrong with a decision-maker seriously contemplating possible
outcomes with respect to issues raised in the litigation upon application of
the knowledge gained. But, whether and how the preparation can be applied in
rendering a decision after the evidence and arguments are all in, depends on
what transpires during the hearing itself, and the degree of reflection given
to what transpired. The point is that a decision-maker must come to the hearing
with an open albeit questioning mind, but, nevertheless, a mind willing to
learn.
[14]
In the present case, I find that on the evidence
the Member understood Justice Fish’s statement in Dubuc that a joint
submission should be given “serious consideration”
and “it should not lightly be disregarded”. This
fact is established by the Member’s twice given statement that “I don't take those submissions lightly”. Nevertheless,
I also find that, on the evidence, not only did the Member take the joint submission
lightly, it was disregarded.
[15]
There are two reasons for reaching this
conclusion.
[16]
First, the transcript establishes that the
moment the argument on the joint submission ended, the delivery of the decision
began. There is no evidence of a pause for reflection. While the joint submission
was engaged by acknowledgment rather than being completely ignored, on the
evidence it was treated as merely an extraneous consideration to the delivery
of thoughts and conclusions that were prepared well in advance for delivery. In
my opinion, the statement that “I don't take those submissions
lightly” does not exonerate a closed mind being brought to the hearing.
[17]
And second, the fact that the Minister’s
Counsel’s position in the joint submission being that the Applicant “appears to be a relatively of low risk in terms of public
safety” is contradicted by the public safety concerns expressed in the Member’s
reasons, establishes that the joint submission was disregarded.
[18]
The content of the disregard is significant.
Because the Minister is responsible for invoking and maintaining the deportation
order under appeal by the Applicant, and is also responsible to consider the
public’s interest in acting on the order, to contradict the Minister’s opinion on
public safety in the joint submission is a serious conclusion to reach without
full engagement of the joint submission, which certainly did not occur.
[19]
Further evidence of the Member’s disregard of
the joint submission is the Member’s failure to meaningfully acknowledge the
Minister’s “last chance” position. The Member’s opinion
that “I think that five chances to get this right is
enough” is based on the Applicant’s inability to meet the conditions
imposed. The Minister’s opinion that, nevertheless, the Applicant deserves a
last chance was completely disregarded. I find that the Member’s rush to
judgment precluded a pause for reflection on this very important point.
[20]
As a result, I find the decision was rendered in
breach of a duty of fairness owed to the Applicant.
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