Date: 20061019
Docket: A-464-05
Citation: 2006 FCA 340
CORAM: LINDEN J.A.
NADON
J.A.
MALONE
J.A.
BETWEEN:
SUGENDRAN BALATHAVARAJAN
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
LINDEN J.A.
[1]
The appellant, a Convention refugee since 1991,
and a permanent resident since 1999, was found to be criminally inadmissible in
Canada in 2001 pursuant to paragraph 27(1)(d) of the Immigration Act,
R.S.C. 1985, c. I-2 [repealed] (the “former Act”) because he was
convicted of possession of an instrument used for breaking and entering
contrary to subsection 351(1) of the Criminal Code of Canada, R.S.C.
1985, c. C-46. The appellant is a citizen of Sri Lanka. The Deportation Order issued in December 2001 does not indicate a
deportation destination. (The appellant had also been convicted of nine other
offences, involving three groups of convictions in 1997 and a further one in
1999.)
[2]
The appellant appealed the deportation order to
the Immigration Appeal Division (the “IAD”) of the Immigration and Refugee
Board on the basis that humanitarian and compassionate considerations warranted
special relief in light of all the circumstances of the case.
[3]
The IAD considered whether the appellant should
be granted discretionary relief from the deportation order pursuant to
subsection 67(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (“IRPA”). In examining whether special relief was warranted, the
IAD looked at the factors listed in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), which were confirmed by the Supreme
Court of Canada in Chieu v.
Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 77. They are: (i) the seriousness of the offence or
offences leading to the deportation; (ii) the possibility of rehabilitation;
(iii) the length of time spent in Canada and the degree to which the appellant
is established; (iv) family in Canada and the dislocation to that family that deportation
would cause; (v) the family and community support available to the appellant;
and (vi) the degree of hardship that would be caused to the appellant by his
return to his country of nationality.
[4]
The IAD denied the appeal. In doing so, it
refused to consider the potential hardship the appellant might face if he were
removed to Sri Lanka, finding that Sri Lanka was not a “likely country of removal”, given section 115 of IRPA.
The Federal Court Judge upheld the IAD’s decision but certified the following
question:
Is a Deportation Order, with respect to a
permanent resident who has been declared to be a convention refugee, which
specifies as sole country of citizenship the country which he fled as a
refugee, sufficient without more to establish that country as the likely
country of removal so that Chieu applies and the IAD is required to
consider hardship to the Applicant in that country on an appeal from a
Deportation Order?
The Certified Question
[5]
The court must decide whether the IAD must
consider hardship to a permanent resident who has been issued a deportation
order, and who has been declared a Convention refugee, where the deportation order
does not specify the country of removal, and where it is uncertain what that
country might be. This is a question of law, to be reviewed on a correctness
standard: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at para. 8.
[6]
In Chieu, supra, the Supreme Court of Canada confirmed, at para.33, that potential
foreign hardship can be taken into account by the IAD in deciding whether to
uphold a deportation order. Iacobucci J. stated, at para. 32, that the IAD
should be able to consider realistic possibilities, such as conditions in the likely
country of removal, even where the ultimate country of removal is not known
with absolute certainty at the time the appeal is heard.
[7]
However, Iacobucci J. also stated, at para.58,
that the likely country of removal may not be ascertainable for Convention
refugees because section 53 of the former Immigration Act (now, section
115 of the IRPA) prohibits a Convention refugee’s removal “to a country where
the person’s life or freedom would be threatened for reasons of race, religion,
nationality, membership in a particular social group or political opinion”,
unless the individual falls within a particular enumerated class and the Minister
is of the opinion that the individual constitutes a danger to the public in
Canada, or a danger to the security of Canada. The Court said, “In such cases,
there will be no likely country of removal at the time of the appeal and the IAD
cannot therefore consider foreign hardship.” Consequently, if the IAD cannot ascertain
a “likely country of removal”, there is no need to consider this issue. When
and if a destination country is decided upon, the hardship issue may then be
addressed in the appropriate forum.
[8]
The appellant points to the decision in Soriano
v. Canada
(Minister of Citizenship and Immigration) (2003),
29 Imm. L.R. (3d) 71 (F.C.T.D.), to contend that the IAD has a duty to consider
potential hardship in this case. In Soriano, a Convention refugee was
the subject of an unexecutable deportation order to El
Salvador, the country from which he fled. Campbell J. held, at para. 8, that the IAD erred
when it failed to take potential hardship to the applicant into consideration
given that the deportation order provided El Salvador was the country of
deportation.
[9]
Soriano, supra, can
be distinguished from the case at bar. In Soriano, the country
of deportation was known. Here, the Minister had not specified the country of
deportation, and at the time of the IAD appeal had not taken the necessary
steps under subsection 115(2) of the IRPA to remove the appellant. It was, at
the time of the IAD appeal, not only unlikely but legally improper to remove
the appellant to Sri Lanka.
For the IAD to consider potential hardship the appellant might face if deported
to Sri Lanka would have been a
hypothetical and speculative exercise. This it need not do.
[10]
The
certified question is, therefore, answered in the negative.
Other Allegations of Error
[11]
The
appellant further argues that the Judge erred when she affirmed the IAD in its
finding that he was a gang member, because it relied on unidentified informant
evidence, which was incapable of being tested. It is argued that this was a
denial of natural justice. This is in error. These are merely questions of
fact and this Court will defer to the Federal Court Judge’s decision in the absence
of palpable and overriding error: Housen, supra, at para. 36.
[12]
Section 175 of the IRPA permits the IAD to
receive and base a decision on evidence adduced in immigration proceedings that
it considers to be credible and trustworthy in the circumstances. The evidence
can sometime be tenuous and may include evidence of informants: Canada
(Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3
F.C.R. 523 (T.D.), at para.107; aff’d, [2004] 3 F.C.R. 572 (C.A.). It is up to the IAD, not the Court
to decide the weight to be given to the evidence.
[13]
The Judge reviewed the evidence presented to the
IAD at the discretionary hearing and found, at para. 17, that there was a
sufficient evidentiary basis to conclude as the IAD did, the fact of gang
membership. The Judge was satisfied that the IAD, in arriving at its decision,
considered the contextual circumstances of the appellant’s criminal past, including
whether it involved gang activity, for the limited purpose of examining the
seriousness of the appellant’s criminal offences and the degree of alleged
rehabilitation. It did not consider the appellant’s gang membership for
the basis of a further finding of inadmissibility. The Judge further stated, at
para.18, that the “sources relied on [by the IAD] were legitimate.”
[14]
The appellant has, therefore, failed to
demonstrate that the Judge committed a palpable and overriding error in
upholding the IAD’s decision.
[15]
This appeal should therefore be dismissed.
“A.M.
Linden”
“I
agree
M.
Nadon J.A.”
“I
agree
B.
Malone J.A.”
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