Docket: IMM-4587-15
Citation:
2016 FC 518
Ottawa, Ontario, May 9, 2016
PRESENT: The
Honourable Madam Justice Kane
|
BETWEEN:
|
|
FRED DOE
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The applicant, Fred Doe, seeks judicial review
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act] of the decision of the Immigration Appeal Division [IAD]
which dismissed his appeal of a removal order made against him on January 28,
2015. The applicant had asked the IAD to exercise its discretionary
jurisdiction to grant special relief and to stay his removal order on
humanitarian and compassionate [H&C] grounds.
[2]
At the IAD hearing, the parties jointly
submitted that there should be a stay of the removal order for a period of four
years on conditions; however, the IAD did not agree with the joint submission
and dismissed the appeal.
[3]
The applicant submits that: the decision of the
IAD is not reasonable because the IAD misstated and relied on erroneous facts,
which influenced their consideration of the relevant criteria; and, the IAD
breached procedural fairness because the IAD did not advise him that it was
considering not accepting the joint submission and did not provide him with an
opportunity to make submissions in response.
[4]
For the reasons that follow, the application is
allowed. The IAD did not breach its duty of procedural fairness. However, the
IAD misstated or misunderstood the facts and, as a result, the decision is not
reasonable.
I.
Background
[5]
The applicant is a citizen of Liberia who left
Liberia at the age of three. He arrived in Canada in November 2001 at the age
of 15.
[6]
He was convicted of possession for the purposes
of trafficking (cocaine and heroin) on May 15, 2014 and sentenced to five
months in jail. A removal order was issued against him based on this conviction
pursuant to paragraph 36(1)(a) of the Act.
[7]
In November 2014, he was subsequently convicted
of assault, theft and breach of a recognizance and served eight months in jail.
[8]
The applicant appealed his removal order to the
IAD, but did not challenge its validity. He asked the IAD to exercise its
discretion to grant special relief and to stay the removal order on H&C
grounds.
II.
The Decision Under Review
[9]
The IAD noted that the factors to be considered
when exercising its discretion to grant relief are those set out in Ribic v
Canada (Minister of Employment and Immigration), [1985] IABD No 4 (QL) [Ribic]
(endorsed by the Supreme Court of Canada in Chieu v Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 [Chieu]):
the seriousness of the offence, the possibility of rehabilitation, the length
of time the applicant has spent in Canada and the degree to which he is
established here, the family and community support available to him, the
dislocation to his family in Canada that deportation would cause and, the
hardship by reason of his removal to his country of origin. The IAD noted that
the list is illustrative, not exhaustive, and the weight afforded to each
factor will vary according to the circumstances of the case. The IAD also noted
the need to consider the best interests of any child affected by the decision
and the objectives of the legislation. The IAD considered each of the factors.
[10]
With respect to the seriousness of the offence,
the IAD stated:
[…] the appellant was convicted of multiple
drug trafficking offences, offences which occurred in January 2013. Since the
offence gives rise to the removal order, the appellant was subsequently
convicted of assault, contrary to section 266 of the Criminal Code of Canada
on November 21, 2014. He was also convicted the same date of robbery contrary
to section 344 of the Criminal Code of Canada, as well as breach of
curfew contrary to subsection 145(3) of the Criminal Code of Canada. I
find the seriousness of the offence is a negative factor in this appeal, and
the appellant’s subsequent convictions to weigh heavily against the granting of
the relief.
[11]
The IAD found that there was no credible or
reliable evidence that there is a pathway to rehabilitation for the applicant,
apart from the applicant’s own word that he was no longer using drugs and had
taken a course in drug and alcohol awareness. The IAD also noted that the
applicant had not expressed any remorse.
[12]
With respect to the applicant’s length of time
in Canada and establishment, the IAD noted that although he has lived in Canada
since 2001, there was little evidence of establishment.
[13]
As a positive factor, the IAD found that the
applicant’s father and one of his sisters are available to support him.
[14]
The IAD gave no weight to the impact on the
applicant’s family of his removal. The IAD noted that the applicant has a
father, two sisters and nieces in Canada. His sister provided a letter of
support. However, the IAD noted that there was no documentary evidence that the
applicant financially contributes to his family. The IAD found that his
criminal choices have likely caused significant disruption to his family.
[15]
The IAD found that there would “certainly be hardship” arising from the applicant’s
removal. The IAD noted that Liberia is a very poor country; the applicant has
no roots or family there; and, the applicant has not lived there since he was
three years old. However, the IAD stated that: “given
the recidivist and serious nature of his crimes, the Panel is hard pressed to
find that this hardship is sufficient to warrant the appellant’s non-removal
from the country or to allow for a stay of the removal order.”
[16]
With respect to the best interests of any
children affected, the IAD noted the applicant’s testimony that he occasional
babysits his nieces, but found no credible or corroborating evidence of this
and concluded, on a balance of probabilities, that there will likely be no
impact on the applicant’s nieces by his removal from Canada, adding that his
removal would likely have a positive impact on his nieces.
[17]
In weighing the positive and negative factors
and concluding that relief would not be granted, the IAD stated:
[…] the negative features of the case
substantially outweigh the positive factors. The crimes he committed that
resulted in the removal order are serious -- trafficking in hard drugs -- and
represent a threat to the Canadian public. While the appellant has been in
Canada for nearly as many years as he lived outside the country, the majority
of this period has been involved in committing crimes and not contributing in a
peaceful or productive way towards Canadian society.
[18]
The IAD also noted the applicant’s breaches of
prior undertakings and the lack of evidence that he was on the path to
rehabilitation.
[19]
The IAD stated that it had considered the joint
submission for a stay, but noted that in accordance with Fong v Canada
(Minister of Public Safety and Emergency Preparedness), 2010 FC 1134,
[2010] FCJ No 1407 (QL) [Fong], it was entitled to reject such a
submission as long as it provided transparent and intelligible reasons.
III.
The Issues
[20]
The applicant argues that the decision is not
reasonable; the IAD relied on inaccurate information about his criminal history
and misstated the facts, which, in turn, influenced its consideration of the
other Ribic factors; and, the IAD ignored relevant and credible evidence
from his sister about his relationship with his nieces in considering the best interests
of any affected children.
[21]
The applicant also argues that the IAD breached
the duty of procedural fairness by rejecting the joint submission without
providing any indication that it might do so and without providing an
opportunity for him to make submissions about why the joint submission should
not be rejected.
IV.
Standard of Review
[22]
Issues of procedural fairness are reviewable on
a correctness standard: Khosa v Canada (Minister of Citizenship and
Immigration), 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339 [Khosa].
[23]
The standard of review applicable to the IAD’s
determination of whether H&C considerations warrant special relief is
reasonableness: Khosa at para 59; Nguyen-Tran v Canada (Minister of
Citizenship and Immigration), 2010 FC 93 at paras 7-8, [2010] FCJ No 106
(QL); Palmer v Canada (Minister of Public Safety and Emergency Preparedness),
2012 FC 1277 at paras 18-19, [2012] FCJ No 1375.
[24]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). The
Court will not re-weigh the evidence or re-make the decision.
V.
Is the decision reasonable: Did the IAD misstate
and rely on inaccurate facts, which in turn influenced its consideration of the
other relevant factors?
[25]
The applicant argues that the IAD erred by
misstating the facts and relying on evidence that was not credible or
trustworthy.
[26]
The IAD found that the applicant’s criminal
history included seven convictions, 45 charges and 170 encounters with the
police. The applicant acknowledges that there were seven convictions, but notes
that an “encounter” with the police includes any
contact with the police, including being a witness or victim of a crime and
simply being questioned, which does not reflect any criminal wrongdoing. The
applicant adds that the IAD erred by relying on charges that did not result in
any conviction in making its decision.
[27]
The applicant also argues that the IAD erred in
referring to the conviction that underlies his removal order as “multiple drug trafficking offences”, noting that he
was convicted of two counts of possession for the purpose of trafficking.
[28]
In addition, the IAD erroneously stated that the
applicant was convicted of robbery. Rather, he was charged with robbery with
respect to one incident, but pleaded and was found guilty of theft, which is a
lesser offence.
[29]
The applicant also argues that the IAD’s finding
that he had been involved in crime for the majority of his time in Canada is
inaccurate and an exaggeration. The applicant notes that his prior convictions
were in relation to provincial offences under the Motor Vehicle Act,
RSBC 1996, c 318. His first criminal conviction occurred in 2012. The applicant
submits that this does not represent the majority of his time in Canada, given
that he arrived in 2001.
[30]
The applicant submits that the errors made by
the IAD in assessing his criminal history influenced its consideration of other
factors, including his prospects of rehabilitation, and its overall weighing of
factors to determine whether relief should be granted.
[31]
The respondent submits that it was not the
applicant’s overall background which the IAD found determinative, but the
serious nature of his conviction for drug trafficking, which was the basis for
the removal order. The respondent points to the specific wording in the IAD’s
reasons under the heading of “Seriousness of the
Offence” where the IAD found that the “seriousness
of the offence is a negative factor” [emphasis added] and “the appellant’s subsequent convictions … weigh heavily”
against the granting of special relief.
[32]
The respondent also notes that the occurrence
reports regarding the drug-related charges, which resulted in the conviction,
constitute credible and reliable evidence of the circumstances of those serious
offences.
[33]
The respondent acknowledges that the IAD erred
in finding that the applicant was convicted of robbery rather than theft.
[34]
The respondent submits that IAD’s consideration
of other factors was not influenced by the applicant’s criminal background. The
applicant’s own evidence reflected his lack of serious efforts to pursue or
complete rehabilitation programs. The IAD did not misstate anything by
referring to the applicant as a “recidivist criminal
and convicted drug trafficker” in assessing the best interests of the
applicant’s nieces. The applicant’s testimony about his relationship with his
nieces was relied on.
The decision is not reasonable
[35]
I find that the IAD misstated the relevant
criminal convictions and the applicant’s overall criminal background and this
had an influence on the consideration of some of the other Ribic
factors. As such, the decision is not justified by the facts and is not
reasonable.
[36]
The applicant clearly has a criminal history.
The underlying offence of possession of drugs for the purpose of trafficking is
not disputed. The issue is whether the consideration of the “seriousness of the offence” in the context of the Ribic
factors is reasonable.
[37]
Although the applicant takes issue with the
characterisation as “multiple counts” of drug
trafficking, two counts would be “multiple” on a
strict interpretation of the term. In addition, possession for the purpose of
trafficking is a serious offence. However, the IAD’s reasons convey that it was
not only the underlying offence that was considered as a negative factor, but
the applicant’s subsequent convictions and his overall history. The IAD
erroneously found the subsequent convictions to include robbery and cited the
robbery provision of the Criminal Code, RSC, 1985, c C-46. This
reference cannot be attributed to the confusion of a layman between robbery and
theft. Robbery is a much more serious offence and, in this case, the IAD should
have been alive to the distinction between the two offences, given that it
referred to the relevant Code provision, and to the distinction between
charges and convictions.
[38]
The IAD referred to the “serious
and recidivist nature of his crimes” in considering both the degree of
hardship and the best interests of his nieces. The applicant did have more than
one conviction for breach of conditions, including a curfew, and this appears
to be the basis for the characterisation as a “recidivist”.
Some of his other convictions were more serious, but the IAD’s characterisation
should be based on accurate facts and on the offences for which the applicant
was, in fact, convicted.
[39]
Reading the reasons as a whole, the IAD’s
misstatement or misunderstanding of the applicant’s criminal past influenced
its determination on some of the Ribic factors. It cannot be determined
if the overall weighing of the factors would have been different had the IAD
acknowledged that the applicant was not convicted of robbery, that the offences
charged are not part of his criminal record, that the encounters with the
police are simply encounters of various nature, and that, although the
applicant has a criminal record and a troubling past, he was not engaged in
criminal activity for the majority of his time in Canada.
VI.
Did the IAD breach procedural fairness by not
advising the applicant that it was considering rejecting the joint submission?
[40]
The applicant acknowledges that the IAD is
permitted to reject a joint submission, in accordance with Fong. The
applicant argues that the IAD must, however, advise the parties that it is
considering not following the joint submission and provide an opportunity for
the parties to make submissions in response.
[41]
The applicant submits that, although Fong
has been cited in other cases, including Saroya v Canada (Minister of
Citizenship and Immigration) 2015 FC 428, [2015] FCJ No 407 (QL) [Saroya],
for the proposition that as long as reasons are provided, the IAD may reject a
joint submission, the proposition in Fong was based on the facts of that
case. In Fong, the IAD noted that it would consider a joint submission,
but would have to think seriously about it, and invited submissions.
[42]
The applicant argues that in the present case,
the hearing proceeded with his testimony and questioning by counsel and the IAD
Member. The parties then took a break and, before making final submissions on
the H&C factors, reached a joint submission. The hearing resumed and the
focus was only on the conditions proposed in the joint submission. The IAD did
not suggest that it might reject the submission nor did it provide an
opportunity for him to make submissions on whether the relief should be granted
on the H&C grounds.
[43]
The respondent submits that there was no breach
of procedural fairness noting that in Saroya at para 20, Justice Mosley
set out the prevailing law:
[20] As a matter of law, the IAD is
entitled to reject a joint submission if it provides reasons for doing so: Fong
v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134 at para
31. The fact that counsel for the Minister favoured granting the appeal at the
conclusion of the hearing had no binding force on the IAD.
There was no breach of fairness in the circumstances of
this case
[44]
In my view, the issue is whether there was a
breach of procedural fairness in the circumstances of this case, not whether
there is a general duty on the IAD to invite submissions on whether to accept or
reject a joint submission. There is no disagreement that the IAD may reject a
joint submission. When it does so, it must explain why. In the present case,
the IAD explained why it rejected the joint submission, finding that positive
H&C factors did not outweigh the negative, in particular because of the
serious nature of the applicant’s crimes and, more generally, his criminal
past. As noted above, the IAD’s decision was based on misstatements and/or a
misunderstanding of the facts.
[45]
In Fong, Justice Zinn noted:
[31] I agree with the submission of the
respondent that the IAD is entitled to reject a joint submission so long as it
provides reasons for so doing: Hussain v. Canada (Minister of Citizenship
and Immigration), 2010 FC 334, Malfeo v. Canada (Minister of Citizenship
and Immigration), 2010 FC 193, Akkawi v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 21, and Nguyen v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1843 (T.D.). The IAD Member
did not reject the joint submission out of hand. She provided reasons that
transparently and intelligibly explained why the joint submission was rejected.
[32] The IAD Member was not obliged to
invite the parties to provide further evidence after indicating that it would
not automatically accept the joint submission. It was incumbent on the
applicant to call further evidence if he wished to bolster the joint
submission. The applicant decided not to call any further evidence and there
was no unfairness or impropriety in the manner the IAD dealt with the joint
submission.
[46]
The principle enunciated in Fong is not
novel; as noted by Justice Zinn at para 31, it is well established that the IAD
may reject a joint submission. The IAD must consider the submission and explain
why it is rejected.
[47]
In Saroya, the decision does not reveal
whether the applicant was specifically notified that the joint submission might
be rejected. However, Justice Mosley notes that there were submissions at the
hearing and post-hearing submissions regarding the joint submission.
[48]
In the present case, the transcript of the
hearing reflects that the IAD heard the applicant’s testimony. The applicant
was questioned extensively by the Minister’s counsel, his own counsel and the
Member about each of the Ribic factors. The Member specifically asked
the applicant why the IAD should allow his appeal. The applicant was then
re-examined by his counsel. Following a short break to permit the parties to
prepare to make their submissions, the Minister’s counsel and the applicant’s counsel
reached an agreement on a joint submission. The joint submission proposed that
the applicant’s removal order be stayed for a period of four years on
conditions. Following presentation of the joint submission, the questioning
continued about: the need for specific conditions; whether any conditions
should be modified to reflect the applicant’s circumstances; and, whether other
conditions should be added. The IAD Member asked the parties if they wished to
add anything further. The Member then stated: “So I’m
going to consider this matter and I will provide you my reasons and in due
course in writing; okay?”
[49]
In my view, this statement does not suggest that
the Member would consider only the joint submission, rather “this matter” – i.e. the application for relief on
H&C grounds. The IAD hearing was thorough and the Member provided an
opportunity for submissions, not only with respect to the joint submission, but
with respect to the overall application. The jurisprudence had previously and
clearly established that the IAD could reject a joint submission. In addition,
the applicant could have requested to submit post-hearing submissions to
highlight the evidence he relied upon in support of his application and the
joint submission.
[50]
I cannot find that in these circumstances, the
applicant was denied procedural fairness.
[51]
As a result, the question proposed for
certification by the respondent which asks whether there is a duty on the IAD
to notify the parties that it is considering rejecting a joint submission need
not be certified as it will not be dispositive of this judicial review.
Email this Content