Date: 20171016

Docket: IMM-1227-17

Citation: 2017 FC 915

[ENGLISH TRANSLATION]

Ottawa, Ontario, October 16, 2017

PRESENT: The Honourable Mr. Justice Roy

JUDGMENT AND REASONS

[1]               The Attorney General of Canada, on behalf of the Minister of Public Safety and Emergency Preparedness, is seeking a judicial review of the decision by the Immigration and Appeal Division [IAD] in the appeal by Mr. Nguyen, against whom the Immigration Division issued a deportation order on September 6, 2012.

[2]               The rules that apply to judicial reviews of administrative decisions are the same, whether the judicial review is requested by the Attorney General or a litigant. What would constitute a reasonable decision for a litigant before the Court will be governed by the same rules if it is the Attorney General who is seeking a judicial review. For the following reasons, the Attorney General’s application for a judicial review is dismissed.

I.                    The facts

[3]               The deportation order was issued by the Immigration Division because Mr. Nguyen was inadmissible for serious criminality. Paragraph 36(1)(a) of the Immigration and Refugee Protection Act (SC 2001, c. 27) [IRPA] was cited and reads as follows:

[4]               However, it is not the validity of the deportation order that is being challenged. The offences for which Mr. Nguyen was convicted qualify under paragraph 36(1)(a). Rather, in appeal, the IAD felt that humanitarian and compassionate considerations were an argument in Mr. Nguyen’s favour. This time, it is paragraph 67(1)(c) of the IRPA that applies:

[5]               Mr. Nguyen has lived in Canada for 27 years. He has never become a Canadian citizen and is now 46 years old.

[6]               The Attorney General claims that Mr. Nguyen’s past is such that he should not benefit from humanitarian and compassionate considerations to avoid deportation to his country of origin, Vietnam. To that end, Mr. Nguyen’s past must clearly be compared to the consideration cited by the IAD.

[7]               Mr. Nguyen’s case is not clear-cut. The facts presented are unclear and information that would have been useful was not made available. Regardless, Mr. Nguyen’s past that the Attorney General wishes to highlight consists essentially of criminal activities. That criminal past is two‑fold.

[8]               First, Mr. Nguyen was convicted in April 1996 for trafficking narcotics, namely heroin. Mr. Nguyen was 25 years old at the time and had been in Canada since 1990. He was sentenced to three years in prison.

[9]               A deportation order was not issued against him until November 16, 2000. However, that order was stayed for a period of three years. That decision was rendered on December 10, 2001. The file is unclear regarding why the Canada Border Services Agency sought to have the stay of the deportation order set aside in February 2005, as it should already have expired. We can imagine that that action was taken after Mr. Nguyen was arrested on August 6, 2004, for production and possession of marijuana for the purpose of trafficking. The irony is that those charges were withdrawn on October 6, 2005. Despite that, said stay was set aside by the IAD on May 2, 2006. The circumstances surrounding those events are not clear, but Mr. Nguyen never returned to his country of origin.

[10]           Nonetheless, Mr. Nguyen applied to have his criminal record suspended under the Criminal Records Act (RSC (1985), c. C-47). That application was submitted to the Parole Board of Canada on September 14, 2006, and was granted on April 24, 2008.

[11]           However, Mr. Nguyen was arrested again in October 2009. That time, he was charged with possession of marijuana for the purpose of trafficking and conspiracy. What must be noted is that he was apparently involved from June 26 to October 9, 2007, in what seemed to be a major network (88 people arrested) investigated by the police for several years. In other words, his arrest in October 2009 was for events that took place more than two years earlier. His actual role in that possession of marijuana for the purpose of trafficking within a network is not explained in the file before the Court. What is known is that Mr. Nguyen pleaded guilty to the offence on December 14, 2011. He was then sentenced to 14 months in prison.

[12]           It must be understood that Mr. Nguyen was granted conditional release following his arrest in October 2009. One of his conditions seems to have been that he not be in possession of a cellular telephone. However, on November 28, 2001, he was found driving a motor vehicle while using a cellular telephone. Stopped by the police, they quickly found that there was a breach of his release conditions and charges were therefore laid under paragraph 145(3)(b) of the Criminal Code (RSC (1985), c. C-46). Mr. Nguyen pleaded guilty to that charge the same day that he pleaded guilty to possession of narcotics for the purpose of trafficking, on December 14, 2011. He was given a fine of $500.

[13]           It thus appears that Mr. Nguyen was guilty of three offences for which he pleaded guilty in April 1996 and in December 2011. For the first charge, he was granted a suspension of his criminal record. The other two offences are somewhat related in that the charge under paragraph 145(3)(b) was a direct result of the charge for possession of marijuana for the purpose of trafficking.

[14]           The Attorney General also submitted that Mr. Nguyen was arrested on August 6, 2004, again in relation to narcotics. However, the charges were withdrawn on October 6, 2005, making it hard for me to see how that has any impact. The respondent cannot be required to defend himself from a charge that was withdrawn. Similarly, when arrested in November 2011, there was a plastic sword in the vehicle for which, apparently, a charge was laid. Mr. Nguyen was acquitted on that charge in January 2012. As a result, no negative inference can be made in that regard. Finally, an amount of money was found in the car driven by the respondent on November 28, 2011, a vehicle that he did not own. There were also no charges regarding the possession of that money.

[15]           On the other side of the scale are the humanitarian and compassionate considerations retained by the IAD. The IAD considered that Mr. Nguyen’s deportation would cause difficulties and hardship for his family. Indeed, the appellant and his partner have three minor sons, aged 8, 11 and 13 at the time of the decision. His common-law partner and the three sons are all Canadian citizens and would not accompany Mr. Nguyen if he were forced to leave Canada. The respondent also has a daughter who was 20 years old at the time of the decision, who is a university student in Toronto. However, she testified that she frequently returned to Montréal to live there with her father and her three half-brothers. She testified that her three half-brothers would be devastated if their father were deported. The IAD thus states in its decision that [TRANSLATION] “[i]t is in the best interests of the appellant’s three minor children for their father to be able to continue playing an active role in their education” (at para 22).

[16]           Moreover, the IAD highlighted the fact that the only criminal offence for which the respondent was convicted since the incidents that occurred between June and October 2007 was the use of a cellular telephone while prohibited under the conditions of his bail. In the offences for which he was convicted, no use of violence was noted.

[17]           Thus, in the opinion of the IAD, Mr. Nguyen [TRANSLATION] “has shown that he is able to function in society without a risk of recidivism and, in all likelihood, the ability to lead a crime-free life” (at para 21). He has held a paid job for two years and has reported his income to tax authorities. The IAD therefore allowed the appeal, thus avoiding deportation for Mr. Nguyen.

II.                 Standard of review and analysis

[18]           There is no doubt that the standard of review in this case is the standard of reasonableness. In fact, this issue was subject to a decision by the Supreme Court of Canada as part of a judicial review of an appeal by the IAD under paragraph 67(1)(c) of the IRPA in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa]. It is worth noting how discretionary a decision under paragraph 67(1)(c) is. In Khosa, Binnie J., writing for a majority of 5 of the 7 justices who heard the case, wrote the following at paragraphs 57 and 58:

[57]      In recognition that hardship may come from removal, Parliament has provided in s. 67(1)(c) a power to grant exceptional relief. The nature of the question posed by s. 67(1)(c) requires the IAD to be “satisfied that, . at the time that the appeal is disposed of ... . sufficient humanitarian and compassionate considerations . warrant special relief”. Not only is it left to the IAD to determine what constitute “humanitarian and compassionate considerations”, but the “sufficiency” of such considerations in a particular case as well. Section 67(1)(c) calls for a fact-dependent and policy-driven assessment by the IAD itself. […]

[58]      The respondent raised no issue of practice or procedure. He accepted that the removal order had been validly made against him pursuant to s. 36(1) of the IRPA. His attack was simply a frontal challenge to the IAD’s refusal to grant him a “discretionary privilege”. The IAD decision to withhold relief was based on an assessment of the facts of the file. The IAD had the advantage of conducting the hearings and assessing the evidence presented, including the evidence of the respondent himself. IAD members have considerable expertise in determining appeals under the IRPA. Those factors, considered altogether, clearly point to the application of a reasonableness standard of review. There are no considerations that might lead to a different result. Nor is there anything in s. 18.1(4) that would conflict with the adoption of a “reasonableness” standard of review in s. 67(1)(c) cases. I conclude, accordingly, that “reasonableness” is the appropriate standard of review.

[19]           As a result, a person challenging such a decision to obtain a judicial review must show, on a balance of probabilities, that said decision is not reasonable. In Khosa, Binnie J. clearly expressed the consequences of such a burden. At paragraph 59 of the decision, we read:

[59]      Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.

[20]           When we look at it more closely, we see that the IAD was not wrong in noting that the conviction for possession for the purpose of trafficking went back to incidents that occurred between June and October 2007. The only snag was in November 2011 when Mr. Nguyen was stopped while using a cellular telephone, which was prohibited under the terms of his release. The matter was resolved by a $500 fine.

[21]           I questioned counsel for the Attorney General about the first conviction, in 1996, in relation to what some call a hard drug, heroin. In efact, Mr. Nguyen was sentenced at the time to three years in a penitentiary. However, that conviction was suspended under the Criminal Records Act. Counsel was largely quiet when questioned about the effect of such a suspension and what the effect would be of a conviction after the suspension was issued. According to counsel, the case is not clear. It was indicated that the effect of the suspension was to not damage the applicant’s reputation. In fact, section 2.3 of the Criminal Records Act states not only that the reputation of the person whose criminal record has been suspended should not be damaged, but the suspension establishes that the applicant was of good conduct and the suspension “removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament”. Thus, unless the suspension was later revoked, the judicial record of the person granted the suspension is kept separate and apart from other criminal records and any disqualifications or obligations are removed. The applicant was unable to further explain to the Court the effect of suspension granted and whether it was revoked.

[22]           In any event, unless it is revoked, it seems that the weight to be given to a conviction in 1996 but for which the criminal record was suspended is clearly limited. One would have expected the government to be clearer in this regard. Moreover, counsel stated that he relied more on the guilty pleas in December 2011.

[23]           In light of the above, the applicant’s argument that the unreasonable error was to minimize the seriousness of the crimes committed does not hold water.

[24]           Regarding the conviction, the file does not reveal whether the criminal record suspension is still valid and what effect that would have on the decision by the IAD. In any event, the offence was committed over 20 years ago and the Attorney General instead wanted to rely on the two more recent convictions.

[25]           I could not see anywhere the minimization of the seriousness of the offences as alleged by the applicant. It is true that the facts that led to the narcotics charge date back to 2007. The evidence does not support a conclusion regarding Mr. Nguyen’s role or that there was any violence. Concluding that there were no aggravating factors is not an unreasonable minimization of the seriousness of the offence.

[26]           An attempt to colour the case by talking about other events cannot be held against the IAD. The charges that were withdrawn or for which there was an acquittal should not, in my opinion, bear any weight. This is even truer when charges were not even laid. Although there may be suspicions for some, that does not make a decision by an administrative tribunal unreasonable.

[27]           The applicant also complains that the IAD allegedly did not reasonably assess the factors set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] IADD No 4 (QL) [Ribic]. Those factors, which were 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], are useful in assessment circumstances that can lead to special relief, avoiding deportation for humanitarian and compassionate considerations. The list is directory and is not comprehensive. It is appropriate to quote the text from the paragraph of Ribic that is endorsed by the Supreme Court of Canada at paragraph 40 of Chieu:

In each case the Board looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These circumstances include the seriousness of the offence or offences leading to the deportation and the possibility of rehabilitation or in the alternative, the circumstances surrounding the failure to meet the conditions of admission which led to the deportation order. The Board looks to the length of time spent in Canada and the degree to which the appellant is established; family in Canada and the dislocation to that family that deportation of the appellant would cause; the support available for the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his return to his country of nationality. While the general areas of review are similar in each case the facts are rarely, if ever, identical.

[28]           The applicant claims that the conclusion by the IAD that the respondent is rehabilitated is unreasonable and irrational on its face. In addition to being a bold statement, we cannot understand why it was made. First, the IAD did not conclude that the respondent is rehabilitated. Rather, it simply acknowledged his ability to function in society without a risk of recidivism. The applicant also did not show how that conclusion is allegedly unreasonable. The Federal Court of Appeal wrote in Delios v. Canada (Attorney General), 2015 FCA 117:

[28]      Under the reasonableness standard, we do not develop our own view of the matter and then apply it to the administrator’s decision, finding any inconsistency to be unreasonable. In other words, as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did, finding any inconsistency to be unreasonable. That is nothing more than the court developing, asserting and enforcing its own view of the matter – correctness review.

[29]           The applicant never demonstrated any lack of reasonableness in that decision and is asking the Court to follow because, in his opinion, the IAD’s conclusion is unreasonable (para 5, memorandum of fact and law). Stating something is not enough to demonstrate it. It is also not enough to argue that a different solution is possible, or even more appropriate. It must be shown that the decision does not fall within the range of possible, acceptable outcomes based on the facts and law. The applicant claims that there is a history of non-compliance with the law. When we look at it more closely, it is not unreasonable to conclude that that non-compliance, which dates back to October 2007 after all, has not been demonstrated to the extent that the humanitarian and compassionate considerations do not offset everything. If we consider Mr. Nguyen’s criminal record for what it is, we could reasonably conclude that it is not extensive. Withdrawn charges, acquittals and charges that were not laid cannot be considered. That is what the IAD did. The applicant is dismissing the humanitarian and compassionate considerations accepted by the IAD. They seem to me, however, to be very real and they merited consideration. The applicant’s silence in that regard does not help him at all. Those considerations are not only relevant, but they are essential to a review under paragraph 67(1)(c) of the IRPA.

[30]           One can imagine that a conclusion other than that of the IAD could be possible based on the facts and the law. However, the burden on the applicant is to show that the conclusion reached by the IAD is not a possible, acceptable outcome based on the facts and the law. That was not demonstrated and the Attorney General is held to the same standards as any other litigant. Moreover, the decision by the IAD is justified, transparent, and intelligible, as is required under the rule of law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47). The evidence available to the IAD is fully consistent with its decision when the criminal record on which the Attorney General solely relied is appropriately examined and compared to the humanitarian and compassionate considerations, including the best interests of the children. The criminal record is compared to the 27 years spent in Canada, family, the disruptions that would be caused, and the difficulties that would be encountered in Vietnam, which the respondent left in 1987. The applicant did not discharge his burden.

[31]           As a result, the application for judicial review must be dismissed.

JUDGMENT in IMM-1227-17

THE COURT ADJUDGES that:

1.    The application for judicial review is dismissed.

2.    The parties did not raise any serious questions of general importance. No such questions are certified.

3.    There is no reason to impose costs.

“Yvan Roy”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: