Date: 20060814
Docket: IMM-6698-05
Citation: 2006 FC 979
Ottawa, Ontario, August
14, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
QUOC
TRUNG NGUYEN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE
J.
[1] This is an
application pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA) for judicial review of a decision by the Immigration Appeal
Division of the Immigration and Refugee Board (the Board), dated October 21,
2005, which dismissed the applicant’s appeal to stay the deportation order
against him on humanitarian and compassionate grounds.
[2] The applicant
seeks an order quashing the decision and remitting the matter for redetermination
by a differently constituted tribunal.
Background
[3] The applicant
was born in Vietnam. In 1985, at
the age of seven, he came to Canada as a landed immigrant along with his
parents and two sisters. He has not been back to Vietnam since immigrating
to Canada, and he is currently a permanent resident of Canada. His father
and all 12 of his siblings reside in Canada and they are either
permanent residents or citizens of Canada. His mother passed away
two years ago and is buried in Mississauga.
[4] The applicant
has 12 criminal convictions and a history of drug abuse. On May 6, 2003, a
deportation order was issued against the applicant because he was found by the
Immigration Division to be inadmissible on grounds of serious criminality under
paragraph 36(1)(a) of IRPA. The inadmissibility decision was based on his
criminal conviction on October 2, 1997 for possession of a firearm while
prohibited, an offence which could carry a maximum sentence of 10 years. For
this offence, he had been sentenced to 60 days imprisonment and prohibited from
possession of firearms, ammunition or explosive substances for life.
[5] On August 27,
2003, the applicant was arrested, detained and charged for various offences.
These charges resulted in convictions entered on May 25, 2004 for possessing a
stolen vehicle, obstructing a peace officer, and failing to comply with a
condition of his probation order, to wit, abstain from owning, possessing or
carrying any weapon contrary to the Criminal Code. He was sentenced to time
served plus a day and concurrent probation for 12 months. He was subsequently
detained on an immigration hold until July 9, 2004, at which time he was
released on an immigration bond and with the condition that he arrange for drug
rehabilitation treatment within 30 days.
[6] As a
permanent resident, the applicant appealed the deportation order to the Board
under subsection 63(3) of IRPA. He requested a stay of the deportation order on
humanitarian and compassionate grounds.
[7] In support of
his appeal, the applicant submitted letters from the Peel Addiction Assessment
and Referral Centre and confirmation of attendance, reference letters from his
family and his employer, a letter confirming attendance at church, and
documentary evidence on country conditions in Vietnam.
[8] The Minister
submitted evidence of the applicant’s criminal convictions. They include
convictions for possessing an unregistered weapon, possessing a firearm while
prohibited, failing to comply with a condition of a probation order, dangerous
operation of a vehicle, driving while disqualified, possessing a scheduled
substance (drugs), and obstructing a peace officer.
[9] On January
17, 2005, the Board heard the applicant’s appeal. The applicant testified about
his criminal record and his former drug habit. He testified that his time spent
in prison in 2003 and 2004 made him realize that he needed to clean up his act.
After his release in July 2004, he got a job doing renovation work and he
attended church and drug counselling. The applicant was supervised by his
father, sister and brother who lived in the same home as him. The applicant’s
sister also had a young son who lived with them. The applicant’s sister
testified at the hearing that she had seen many changes in the applicant and
that the family was supporting him and monitoring his activities.
[10] On October
21, 2005, the Board dismissed the appeal because there were insufficient
humanitarian and compassionate considerations to warrant the granting of
special relief. This is the judicial review of the Board’s decision.
Reasons for
the Board’s Decision
[11] The Board
member stated that in determining whether the removal order should be stayed,
he was guided by the factors set out in Ribic v. Canada (Minister of
Employment and Immigration), [1985] I.A.B.D. No. 4 (Immigration Appeal
Board Decision No. T84-9623) (QL) and approved by the Supreme Court of Canada
in Chieu v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at 108.
The Ribic factors are (a) the seriousness of the offences leading to the
deportation order; (b) the possibility of rehabilitation; (c) the length of
time spent in Canada and the degree of establishment; (d) the family in Canada
and how removal would affect the family; (e) the support available to the
applicant from his family and the community; and (f) the hardship the applicant
would face if removed to his country of nationality.
[12] The Board
member reviewed the applicant’s criminal record and stated that he was
particularly disturbed that the applicant had been convicted of yet another
weapons charge on August 12, 2003. This charge indicated that the applicant had
no interest in reforming himself. The applicant had also breached his probation
orders; the most recent breach was when he was charged on August 27, 2003,
three and a half months after the issuance of his deportation order.
[13] The Board
noted that the applicant had only recently ceased drug use. The Board stated
that according to the applicant’s own testimony, he had ceased crack
consumption in 2003 and heroin consumption in 2004. The Board stated, “While
not charged or convicted in 2003 or 2004, the appellant, by his very lifestyle,
has continued to possess and consume drugs and break the law, albeit never being
caught.”
[14] The Board
found that there was no evidence to suggest that the applicant had taken steps
to deal with his drug problem earlier than July 2004. It was noted that the
applicant attended an appointment for drug counselling on December 7, 2004 and
was scheduled for group rehabilitation sessions in January and February 2005.
The Board, however, emphasized that the applicant had not taken these steps of
his own initiative, but because he was directed to do so pursuant to his order
for release. The Board was not satisfied that the applicant had been
rehabilitated. Rather, the Board found that “[h]e was more inclined to listen
to his friends who did drugs and had been quite inclined to continue his
criminal lifestyle”.
[15] The Board
found that the applicant had not prepared himself for life in Canada. It was
noted that the applicant had no bank account and his sister handled all his
finances. It was noted that his work record is sporadic, and he has never paid
income tax although he did file a tax return one year.
[16] The Board
further stated that the applicant’s family did not appear to have been
successful in keeping him away from his criminal lifestyle.
[17] With regard
to the hardship that might be faced by the applicant’s sister’s child should
the applicant be deported, the Board stated that the hardship would be
difficult to evaluate as there was a paucity of evidence at the hearing on this
issue. That said, the Board noted that the applicant was not a “poster boy for
good behaviour” and would not make a good role model for his sister’s child.
The Board member acknowledged that the applicant and his family would face some
hardship if he were removed to Vietnam.
[18] The Board
concluded at the end of the reasons:
When I review the foregoing, the
appellant’s lack of establishment in Canada, the seriousness of his offences
and of the pattern of his criminal activities in Canada, the minimal likelihood
of rehabilitation and likelihood of his re-offending criminally, I am not
satisfied that a stay should be granted, notwithstanding any hardship he would
face in the Vietnam or experienced by his family members here.
Issue
[19] The applicant
submitted the following issue for consideration:
Did
the Board make a wrong finding of fact, misinterpret and ignore the evidence or
draw conclusions that were not based on the evidence?
Applicant’s
Submissions
[20] The applicant
submitted that the Board’s conclusion that the applicant had no interest in
reforming himself was patently unreasonable as it was based on a wrong finding
of fact, namely, that he had been convicted of another weapons charge on August
12, 2003. The applicant pointed out that he had no conviction registered in
2003 at all. The Board member might have been referring to the applicant’s conviction
on May 25, 2004, which resulted from offences committed on August 27, 2003. The
May 25, 2004 conviction was not for a weapons charge, but was for possessing a
stolen vehicle, obstructing a peace officer and failing to comply with a
probation order. The applicant submitted that the Board’s wrong finding
of fact is central to the decision because it negatively affected an important
factor, i.e. the possibility of rehabilitation.
[21] The applicant
submitted that the Board made another wrong finding of fact in stating that the
applicant had stopped using crack in 2003 and heroin in 2004. In fact, the
applicant testified that he had stopped using crack in 2002 and heroin in 2003,
before his incarceration in August 2003. The applicant submitted that by the
time of the Board’s decision in October 2005, the applicant had not used heroin
in two years and crack in three years. The applicant submitted that the Board’s
error with respect to the length of time that he has remained drug free
affected the way the Board dealt with the factor of rehabilitation.
[22] The applicant
submitted that the Board erred in finding that he had done little to
rehabilitate himself and that he did not take rehabilitative steps until
directed to do so. It was submitted that this finding ignored the fact that the
applicant had voluntarily stopped consuming crack and heroin in 2002 and 2003,
which is prior to his order for release dated July 6, 2004.
[23] The applicant
submitted that the Board erred in failing to consider the letter from a
counsellor at the Peel Addiction Assessment and Referral Centre, the letter of
support from his family and the testimony of the applicant’s sister, all of
whom spoke positively on the applicant’s rehabilitation. The applicant
submitted that this evidence directly contradicted the Board’s conclusion that
the applicant was more inclined to listen to his friends who did drugs and
continue his criminal lifestyle. It was submitted that failure to consider this
evidence on rehabilitation constituted a reviewable error, as was the case in Malicia
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 170.
[24] The applicant
submitted that the Board’s conclusion that the family had no effect on him was
made without regard to the evidence and was patently unreasonable. The
applicant’s sister testified that the family had come together to help the
applicant rehabilitate, and she had observed that he had changed and was no
longer hanging out with his former friends. She testified that the applicant was
working, and when he was not at work, he was with his family at home. The
applicant had also submitted a letter from his employer stating that he was a
hard worker. The applicant submitted that all of this evidence showed that his
family had succeeded in helping him reform.
Respondent’s
Submissions
[25] The respondent first addressed the applicant’s submissions
with respect to the Board’s wrong finding of fact of the August 2003
conviction. The respondent submitted that this finding of fact should be put in
its proper context, as it was one of many factors on which the Board relied in
concluding that the applicant had not reformed his criminal ways. It was
submitted that it was open to the Board to find that the applicant had not
reformed, for the many reasons given by the Board. The applicant had committed
numerous serious criminal acts, he repeatedly breached his probation orders, he
continued to commit criminal acts after a deportation order was issued against
him, and the offences he was convicted of and which carried the most onerous
penalty (nine months in jail) were committed after the deportation order was
issued against him.
[26] The respondent pointed out that the applicant was charged in
August 2003 for two counts of possession of a dangerous weapon for carrying a
sword and a pellet gun. These charges were withdrawn by the Crown by way of a
plea bargain. However, the applicant did plead guilty to failing to comply with
a condition of his probation order, that is, to abstain from owning, possessing
or carrying weapons contrary to the Criminal Code. The fact that the
applicant was carrying weapons when he was arrested in August 2003 was of
importance to the Board as it indicated his lack of desire to reform. Thus, it
was submitted that while the Board may have erred in its description of the
evidence, it did not err in its appreciation of the evidence. The respondent
submitted that the Board’s errors are not reviewable errors as they were not
material to the outcome.
[27] With respect to the applicant’s submission that the Board
erred in regard to the length of time he had been drug free, the respondent
submitted that the record shows that the applicant used heroin in 2003 and
crack cocaine in August 2002. Thus, it was submitted that it was open to the
Board to find that the applicant stopped using heroin and crack recently, in
2004 and 2003.
[28] The respondent submitted that the Board considered the
family’s efforts to assist the applicant, but did not give them much weight,
given the lack of success of those efforts in the past. The lack of the
family’s influence is supported by the record and reflected by the
contradictions between the testimony of the applicant and that of his sister.
For example, the applicant testified that his employer usually paid him by
cheque, but his sister testified he was usually paid by cash, an amount that
she did not know. The applicant testified he was contributing about $400 to
$500 a month to household expenses, but his sister testified he was paying only
$250 a month.
[29] The respondent submitted that the letter from the Peel
Addiction Assessment and Referral Centre was tendered on the day of the hearing
and marked as exhibit A-3. It was submitted that the Board’s reasons, at
paragraph 9 refer to counsel’s submission that the applicant is making
progress. Also, the Board cites exhibit A-3 at footnote 10.
[30] The respondent submitted that the Board properly considered
the Ribic factors and the conclusions it drew were not patently
unreasonable. The respondent submitted that while the Board may not have
weighed the evidence on establishment, family support and change in lifestyle
as the applicant would have liked, the Board did not ignore or misunderstand
the evidence.
Analysis and Decision
[31] The applicant
is challenging a decision of the Immigration Appeal Division on an appeal of a
deportation order. The Immigration Appeal Division may allow an appeal and
grant a stay of a deportation order if it is satisfied that, taking into
account the best interests of a child directly affected, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances. For ease of reference, the pertinent provisions of
IRPA are reproduced below:
|
67. (1) To allow an appeal, the Immigration Appeal
Division must be satisfied that, at the time that the appeal is disposed of,
. . .
(c) other than in the case of an appeal by the Minister,
taking into account the best interests of a child directly affected by the
decision, sufficient humanitarian and compassionate considerations warrant
special relief in light of all the circumstances of the case.
68. (1) To stay a removal order, the Immigration Appeal
Division must be satisfied, taking into account the best interests of a child
directly affected by the decision, that sufficient humanitarian and
compassionate considerations warrant special relief in light of all the
circumstances of the case.
|
67. (1) Il est fait droit à l’appel sur
preuve qu’au moment où il en est disposé:
. . .
c) sauf dans le cas de l’appel du
ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement
touché — des motifs d’ordre humanitaire justifiant, vu les autres
circonstances de l’affaire, la prise de mesures spéciales.
68. (1) Il est sursis à la mesure de
renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de l’enfant
directement touché — des motifs d’ordre humanitaire justifiant, vu les autres
circonstances de l’affaire, la prise de mesures spéciales.
|
[32] The Federal
Court has stated that the statutory discretion of the Immigration Appeal
Division under subsections 67(1) and 68(1) of IRPA is broad, and that a court
will not interfere with the exercise of discretion provided that the discretion
has been exercised in good faith and has not been influenced by extraneous or
irrelevant considerations (see Mand v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1637 at paragraph 13). In Capra v.
Canada (Minister of
Citizenship and Immigration), 2005 FC 1324 at paragraph 6, Justice
Blais held that in cases such as these, the standard of review is patent
unreasonableness. Similarly, Justice Russell in Canada (Minister of
Citizenship and Immigration) v. Bryan, 2006 FC 146 at paragraph
43 held that the standard of patent unreasonableness is the appropriate
standard of review for the Immigration Appeal Division’s exercise of discretion
under subsection 68(1) of IRPA. I agree with this finding. I will therefore
apply the standard of patent unreasonableness to the decision under review.
[33] Did the Board err in denying the stay of the deportation order?
In deciding
whether to grant the stay of the deportation order, the Board applied the Ribic
criteria, as confirmed by the Supreme Court of Canada in Chieu v.
Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1
S.C.R. 84. At page 108, the Supreme Court of Canada set out the Ribic factors
as follows:
Employing such a broad approach to s.
70(1)(b), the I.A.D. itself has long considered foreign hardship to be
an appropriate factor to take into account when dealing with appeals brought
under this section. In Ribic, supra, at pp. 4-5, the I.A.B.
summarized the relevant factors to be considered under its discretionary
jurisdiction pursuant to what is now s. 70(1)(b) of the Act:
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. [Emphasis added.]
This list is illustrative, and not
exhaustive. The weight to be accorded to any particular factor will vary
according to the particular circumstances of a case. While the majority of
these factors look to domestic considerations, the final factor includes
consideration of potential foreign hardship.
[34] In the present case,
one of the significant factors in the Board’s decision was the possibility of
rehabilitation of the applicant. The Board seemed to have dismissed the
applicant’s attempts at rehabilitation given that he attended drug counselling
sessions because he was ordered to do so. I am concerned about how the Board
dealt with the September 9, 2004 letter from a Peel Addiction and Referral
Centre counsellor who had interviewed the applicant. The counsellor stated in
part in the letter:
Mr. Nguyen reports that he has
a history of using both crack cocaine and heroin. He describes his use
of both substances as infrequent with small quantities of each substance
consumed. He states that he has not used crack cocaine since 2002 and last used
heroin more than one year prior. He states that he is motivated to maintain
abstinence from all substances as he has directly and vicariously witnessed the
legal, financial, social, and serious health consequences that each substance
has on a person’s life.
Mr. Nguyen
demonstrated insight into the issues contributing to his past behaviours. He
took ownership for past criminal activities and consequences. He has chosen to
avoid peer contact at this point in time, as he has identified his peer group
as a high-risk population who could interfere with his future plans. He states
that his current goal is to complete his probation, pay off fines and debt, and
to maintain regular full-time work. He appears sincere towards his stated goals
and states that drug use is no longer a choice for his lifestyle.
[35] This letter supplied information about the applicant’s interest in
rehabilitation. I do not believe that the Board can justify rejecting this
important evidence by merely mentioning it by way of a reference to it in a
footnote.
[36] The Board also dismissed the applicant’s family’s efforts to assist
him, when it stated in its reasons:
His family do not appear to have been
successful in any attempts to bring the light of day to the appellant as it
applies to his criminal lifestyle. Their influence on him in this matter has
had no effect whatsoever on him.
[37] However, the applicant testified that
he kept out of trouble by working full time, and when he was not at work, he
was at home with his family or helping out at his sister’s hair salon. These
statements were corroborated by the testimony of the applicant’s sister. She
also testified that she had seen many improvements in the applicant and that
there was always a family member supervising him at home when he was not at
work. I have taken into consideration that there were inconsistencies between
the applicant’s testimony and his sister’s testimony with respect to whether he
was paid by cheque or cash, and with respect to the amount he contributed
towards household expenses. These inconsistencies do not justify ignoring the
evidence of the family’s influence on the applicant.
[38] In my view, there is no indication in the reasons
that the Board considered the testimony of the applicant and his sister
regarding his positive changes in lifestyle.
[39] The Board also did not appear to consider the
evidence that the applicant was avoiding his old peer group, which had been a
source of his former drug and criminal problems.
[40] I am of the opinion that it was patently unreasonable
for the Board not to explain why it did not accept the applicant’s evidence and
his sister’s evidence concerning rehabilitation. The Board also did not explain
why it did not accept the evidence of rehabilitation contained in the Peel
Addiction Assessment and Referral Centre letter of September 9, 2004. The
possibility of rehabilitation is one of the relevant Ribic factors
listed by the Supreme Court of Canada for determining whether the applicant
should be allowed to stay in Canada.
[41] In conclusion, for the reasons listed above, the
Board’s decision was patently unreasonable and must be set aside. The matter is
to be remitted to a differently constituted Board for redetermination.
[42] Neither party wished to submit a proposed serious
question of general importance for my consideration for certification.
JUDGMENT
[43] IT IS ORDERED that the application for judicial review is
allowed and the matter is referred to a different Board for redetermination.
“John
A. O’Keefe”
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