Docket: IMM-3441-16
Citation:
2017 FC 151
Toronto, Ontario, February 8, 2017
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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ARTHMEEGAN
VIGNESWARALINGAM
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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
I.
Proceeding
[1]
The Applicant has applied for judicial review of
a decision [the Decision] of the Immigration Appeal Division [IAD] dated July
20, 2016 to cancel the stay of his removal order and dismiss his appeal.
This application is brought pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA].
II.
Background
[2]
The Applicant is a 34 year old male citizen of
Sri Lanka and a permanent resident [PR] of Canada. He fled Sri Lanka as a child
and his family was granted refugee protection in Canada. The Applicant became a
PR on July 23, 1996 at age 13.
[3]
The Applicant was found inadmissible on March 1
2005. A deportation order was issued on that date. The Applicant appealed to
the IAD pursuant to subsection 63(3) of the IRPA.
[4]
On August 14, 2007, the IAD stayed the removal
order subject to conditions for 4 years.
[5]
On February 9, 2012, the IAD granted a further
one year stay to be reviewed on or after February 7, 2013. However, the review was
postponed five times until it was finally heard on June 10, 2016.
III.
Decision
[6]
The IAD held that the removal order was valid in
law, but that insufficient Humanitarian and Compassionate (H&C) grounds
existed to justify relief. The IAD considered the following factors set in Ribic v. Canada (Minister of Employment and
Immigration), [1985]
I.A.D.D. No. 636:
1.
Seriousness of the offence
2.
Possibility of rehabilitation and risk of
reoffending
3.
Length of time in Canada
4.
Establishment in Canada
5.
Family support and the impact of removal on the
family
6.
Community support
7.
Potential hardship upon return to the home
country
[7]
The IAD noted that “as
the appellant has the status of a protected person, the last factor, hardship
upon removal to his country…in not a relevant consideration.”
1.
Seriousness of the offence
[8]
The IAD treated the seriousness of the
Applicant’s conviction and sentence for assault with a weapon as aggravating
factors.
2.
Possibility of rehabilitation and risk of
reoffending
[9]
The IAD found that the Applicant’s failure to
address his ongoing problems with alcohol and drugs “point
to both a high risk of reoffending and diminished prospects for
rehabilitation.”
[10]
The IAD also found that the Applicant has
breached his stay conditions. He allowed his alcohol issues to endanger others,
and failed to keep the peace and maintain good behaviour. He was convicted of
operating a motor vehicle while impaired and refusing to provide a breath
sample in 2012. He was convicted of driving while under suspension in 2016. He
admitted to recently buying and consuming cocaine worth $350.00.
[11]
The Applicant disclosed a driver extract dated
November 5, 2015 which said that he had failed to complete a remedial program
for impaired drivers. He and his wife had previously testified that he had
stopped drinking, but evidently he had relapsed. The Applicant testified that
fines totalling approximately $400.00 under Ontario’s Liquor License Act and
Trespass to Property Act were not outstanding because Service Ontario
had told him that he had no outstanding fines. The IAD found that the
Applicant’s testimony to the effect that these fines did not exist was “disingenuous at best” and “constitutes
disrespect for the justice system bordering on mockery.”
3.
Length of time in Canada
[12]
The Applicant has been in Canada since 1996.
4.
Degree of establishment in Canada
[13]
The Applicant disclosed two recent offers of
temporary fulltime employment, an undated employer’s commendation, and a single
paystub for the pay-period ending April 29, 2015. The Applicant testified that
he had been placed on long-term disability but provided no supporting
documentary evidence. The IAD found that “the abject
lack of corroborating evidence of employment since April 2015 is an aggravating
factor…”
[14]
The Applicant obtained a high school diploma in
2013 and started a post-secondary certification that was later interrupted. The
IAD found that the Applicant’s establishment was a ‘neutral’
factor.
5.
Family support in Canada and impact of removal
on them
[15]
The IAD noted that the Applicant had been
married, separated and divorced. He had a total of four children, two of whom
died very young. The Applicant’s separation agreement indicated that his wife
had sole custody and was not entitled to support. However, the Applicant
produced an undated, non-notarized letter from his wife indicating he provided
$500 in support per month. He provided no evidence to show that these payments
were continuing.
6.
Community support
[16]
The Applicant provided a single letter from a
church which was over 10 years old. The lack of evidence of community support
was an “aggravating factor.”
[17]
No family members testified at the hearing. The
IAD found that there was “no persuasive evidence of
ongoing support from…family in Canada” and that on the balance of
probabilities the impact of his removal on his family would be minimal.
Best interests of
the child
[18]
The IAD also considered the best interests of
the Applicant’s two children. The IAD was satisfied that he maintained regular
contact with them. However, there was no persuasive evidence of financial
support. While generally children’s best interests militate against removal,
the IAD found that this factor was “mitigated”
by the Applicant’s drug and alcohol problems. The IAD concluded that the BIOC
was a ‘neutral’ factor at best.
[19]
The Applicant submitted that he had mental health
problems and might be suffering from PTSD. He provided a psychologist’s report (the
Report) and presented two prescription medications at the hearing without any medical
evidence about the conditions they were prescribed to treat. The IAD gave little
weight to the Report because the diagnoses were unclear and largely based on
self-reporting. The IAD found that the Applicant had “not
provided persuasive proof of any underlying mental condition which would
constitute a mitigating factor.”
[20]
In summary, the IAD assessed 6 factors. Three
assessments (seriousness of the offence, rehabilitation and risk of
re-offending and community support) led to findings that were seriously
negative. The other three findings were neutral or neutral “at best” and neither his children nor his mental
health were mitigating factors.
[21]
The IAD found that the Applicant had failed to
show, “at the date of hearing [sic], a preponderance of
clear and convincing evidence to support a further extension of the stay.”
Given that H&C considerations did not justify relief, the IAD cancelled the
stay of removal and dismissed the appeal.
IV.
The Issue
Was the IAD’s analysis reasonable?
V.
Discussion and Conclusions
[22]
The Applicant says that the Decision was
unreasonable for a number of reasons including:
1.
Disregard for the diagnosis of depression in the
Report.
2.
Failure to accept his explanation that the
family was absent because of the numerous postponements of the hearing.
3.
Failure to appreciate his employer’s undated
letter of commendation.
4.
Failure to take his wife’s observations that he
is a “good father” into consideration.
5.
Failure to reasonably consider rehabilitation.
[23]
It is not necessary to discuss all these issues
because the first issue is dispositive. The Applicant’s counsel submits that
the Applicant suffers from depression and that this explains his job loss, his
addiction to alcohol, his effort to commit suicide with cocaine and his
inconsistent efforts to seek psychiatric assistance. The Report said the
following:
During the testing phase of the assessment,
Mr. Vigneswaralingam completed the Beck Depression Inventory-II (BDI-II). On
the BDI-II, the patient endorsed a severe range of symptoms. In addition, the
patient completed the Beck Anxiety Inventory (BAI), the results of which
reflected a severe level of anxiety.
[24]
However, the IAD found that the Report did not
provide a clear diagnosis and said “…the appellant has
not provided persuasive proof of any underlying mental health condition which
would constitute a mitigating factor in my evaluation.”
[25]
In my view this conclusion was unreasonable because
it was contrary to the Report which found severe symptoms of depression. The
Respondent argued that this was not a clear diagnosis but I was not persuaded
by this submission.
VI.
Decision
[26]
For this reason the application will be allowed.
VII.
Certification
[27]
No questions were posed for certification.
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