Burgess v. Canada (Minister of Citizenship and Immigration), docket IMM-4159-97

Date: 19980914

Docket: IMM-4159-97

            

BETWEEN:

     ANTHONY DONOVAN BURGESS

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

NADON J.:

[1]      The applicant seeks to set aside a decision of the Appeal Division of the Immigration and Refugee Board (the "Appeal Division") dated September 17, 1997 which dismissed his appeal of the deportation order made against him on September 21, 1992.

[2]      The relevant facts are as follows. The applicant, a citizen of Jamaica, arrived in Canada in 1977 and became a permanent resident in 1980. From 1978 to 1991, the applicant was convicted of a number of offences:

1978-10-10 LONDON ONT

ASSAULT CBH SEC 245(2) CC

$500 I-D 60 DAYS & 6 MOS PROBATION

1981-03-18 TORONTO ONT

(1)      POSS OF STOLEN PROPERTY OVER $200. (2)      THEFT UNDER $200.

(1) $500. I-D 30 DAYS (2) SUSP SENT & PROBATION 1 YR

1984-01-16 TORONTO ONT

POSS OF STOLEN PROPERTY OVER $200

$100 I-D 7 DAYS & PROBATION FOR 1 YR PLUS RESTITUTION OF $35

1987-01-20 TORONTO ONT

POSS OF NARCOTIC

$300

1990-06-19 TORONTO ON

TRAFFICKING IN A NARCOTIC      (2 CHGS)

70 DAYS INTERMITTENTLY ON EACH CHG CONC & PROBATION

1991-09-06 TORONTO ONT

TRAFFICKING IN A NARCOTIC

10 MOS & PROBATION 1 YR

     [3]      As a result of the applicant"s conviction for trafficking in a narcotic in 1991, a

deportation order was made against him on September 21, 1992. The applicant appealed the deportation order on the ground that, having regard to all the circumstances of his case, he should not be removed from Canada.

[4]      The hearing of the applicant"s appeal took place in Toronto on June 8, 1993. On October 27, 1993, the Appeal Division allowed his appeal and ordered that the deportation order be stayed for a period of three years. The order issued by the Appeal Division on November 9, 1993, provides as follows:

This appeal having been heard on the 8th day of June, 1993;

The Appeal Division orders that the execution of the removal order made on the 21st day of September, 1992, be stayed.

And further orders that the Appellant shall be allowed to remain in Canada under the following terms and conditions:

1.      The Appellant is to report to a Senior Immigration Officer, at the nearest Canada Immigration Centre (C.I.C.) on the second Tuesday of every fifth (5th) month, commencing on Tuesday, December 14, 1993.

2.      The Appellant is to advise C.I.C. of his employment and Marital Status.

3.      The Appellant is to report any change of address to C.I.C. and the Appeal Division within forth-eight (48) hours.

Take notice that the Appeal Division will review the case on or about the 27th day of October, 1996, or at such earlier date as it considers necessary or advisable.

[5]      By order dated March 7, 1994, the Appeal Division amended condition number 1 of its November 9, 1993 order which required the applicant to report in person to a Senior Immigration Officer on the second Tuesday of every fifth month commencing on Tuesday, December 14, 1993. The amendment required the applicant to report by mail to the Manager, Immigration Appeals, 1 Toronto Street, Suite 705, Toronto, Ontario.

[6]      On December 3, 1996, the applicant was convicted for failure to attend Court and for fraud under $5,000.00. The date of the offence for failure to attend Court was September 26, 1995 and the date of the offence for the fraud was deemed to be March 20, 1992. As a result, the applicant was sentenced, pursuant to paragraphs 145(2)(b) and 380(1)(a) of the Criminal Code, to serve periods of probation of seven days and twenty-four months.

[7]      The November 9, 1993 order was further amended on October 31, 1996 so as to extend the stay of the deportation order to January 31, 1997. On January 31, 1997, the Minister filed an application, pursuant to Rule 33 of the Immigration Appeal Division Rules, for an order cancelling the order dated November 9, 1993, dismissing the applicant"s appeal of the September 21, 1992 deportation order and directing that the deportation order be executed as soon as reasonably practicable.

[8]      The Rule 33 application was heard on June 13, 1997. On September 17, 1997, the Appeal Division made the following order:

The application pursuant to Rule 33 of the Immigration Appeal Division Rules, to cancel the Appeal Division"s direction staying the execution of the order, filed on the 31st day of January, 1997, was heard on the 13th day of June, 1997.

The Appeal Division orders that this Application be granted.

It also orders that the order of the Immigration Appeal Division, signed the 9th day of November, 1993, amended by order signed 7th day of March, 1994, and further amended by order signed the 31st day of October, 1996, be cancelled.

The Appeal Division also orders that the appeal be dismissed and directs that the removal order made against Anthony Donovan BURGESS the 21st day of September, 1992 be executed as soon as reasonably practicable.

[9]      At the applicant"s request, written reasons for the September 17, 1997 order were given on November 10, 1997. This is the decision which the applicant seeks to set aside.

[10]      The applicant submits that the Appeal Division made unreasonable credibility findings and an unreasonable assessment of the case. Further, the applicant submits that the Appeal Division made a number of errors of fact including a critical error regarding receipt by the applicant of unemployment insurance and welfare payments at the same time in 1992. Specifically, the applicant submits that the Appeal Division made an error when it found, as a fact, that the applicant had not disclosed to the June 8, 1993 panel (the "first panel") that he had been receiving, at the same time, unemployment insurance and welfare payments. According to the applicant, the Appeal Division also erred when it found that he had conceded or admitted during the hearing that he knew, at the time of the hearing before the first panel, that receiving both welfare and unemployment insurance payments was illegal.

[11]      Counsel for the applicant argued that these findings were not supported by the evidence. I disagree. What is clear from the evidence is that the applicant received both welfare and unemployment benefits at the same time between March and October 1992, that this was discovered by the Department of Welfare which so advised the applicant at the end of 1992 or early 1993, i.e. prior to the hearing of June 8, 1993 and that the applicant did not inform the first panel of these facts. It is also clear, in my view, that the applicant knew that it was illegal to receive both unemployment insurance and welfare payments at the same time.

[12]      The following extracts from the June 13, 1997 hearing support the Appeal Division"s findings:

APPELLANT:          Upon my release I was qualified for unemployment so I was, I had applied for unemployment, I was receiving unemployment at the time. But due to my incarceration upon getting released I had a lot of financial problems after I got out, my rent was overdue, had a lot of bills and out of I would say desperate, I don"t know if I"m using the right word, out of being desperate I applied for welfare assistance also. ... [Tribunal record, page 134]

*****

... After I was notified of the situation I accepted it and I confessed to it and I explained to the officer that interviewed me at the time that yes I did receive unemployment during that time but it was out of being desperate. I also notified him that I was now working and I was in the position to make restitution. He replied to me, his reply was he understood that I didn"t want it to go any further, I was wiling [sic ] to make restitution but it was not in his powers to give me a go ahead or make what decision. He would have to take it further to his supervisor. He took the information from em [sic] and said they would get back in touch with me as soon as their supervisor had come to some decision.

And that went on approximately for around a year, I think little over a year. I haven"t heard anything from the welfare system until I was notified by the police over a year after that that I was being charged for fraud by the welfare system. [Tribunal record, page 135]

*****

MR. DOMBRADY1:      Your hearing was actually on the 8th of June, 1993 so it was after the period when you were committing this offence. So when you were here on the 8th of June, 1993 did you or did you not say anything to the panel about collecting welfare or UI?

APPELLANT:          No, at that time it wasn"t an issue because I was not charged, I was not notified of any like offence.

MR. DOMBRADY:      No I appreciate that, you weren"t charged yet. But did you mention the fact, did you tell the panel at the time that you were receiving these benefits?

APPELLANT:          No I didn"t.

MR. DOMBRADY:      All right. And of course you must have understood that if you told the panel that you were receiving both of these benefits that the panel would not have been impressed with that, is that fair to say?

APPELLANT:          I would say yes.

MR. DOMBRADY:      All right. So is it fair to say you deliberately concealed this from the panel the first time you were here.

APPELLANT:          No, it was not a deliberately situation. As I said I was not charged and when I was notified by the welfare system I had put it forward to them that I was working and ---

MR. DOMBRADY:      Right. But that"s when you were caught. So if you were never caught, let"s say the welfare system didn"t catch up with you we"d never have found out, is that fair to say? You wouldn"t have told anybody. Right?

APPELLANT:          Because it haven"t become an issue to me.

MR. DOMBRADY:      No. But only when it became an issue did you admit to it, right? Otherwise we"d never have learned of this. Is that fair to say?

APPELLANT:          I would say so.

MR. DOMBRADY:      You had no intention of telling the Board the first time you were here, right?

APPELLANT:          It wasn"t an issue. [Tribunal record, pages 145 and 146]

*****

MR. DOMBRADY:      All right. So you were already confronted by the welfare authorities before you had your appeal hearing, is that right?

APPELLANT:          Yes it was brought to my attention.

MR. DOMBRADY:      But you weren"t charged until afterwards, until after your appeal hearing?

APPELLANT:          Yes, I ---

MR. DOMBRADY:      All right. So you knew you were in trouble already, right, when you were before this Board the first time you knew you were in trouble with welfare, right?

APPELLANT:          I wouldn"t call it trouble because as I explained to you I admit to the fact and I was in process of making restitution instead of going through the court system and wasting the court time I had confessed to it and I was willing to make restitution which they indicated they would get back to me.

MR. DOMBRADY:      So why didn"t you tell the immigration board when you were here? Why didn"t you tell them about all this?

APPELLANT:          Because it wasn"t an issue. [Tribunal record, pages 147 and 148]

[13]      In my view, the evidence supports the Appeal Division"s conclusion that the applicant knew at the time of his June 1993 hearing that it was illegal to receive both unemployment insurance and welfare payments at the same time. Consequently, on the evidence, the Board"s conclusion is not unreasonable.

[14]      The Appeal Division also found that the applicant had failed to appear in Court in respect of the charge for fraud. The Appeal Division did not accept the applicant"s explanation for not showing up at the hearing on September 25, 1995. That finding cannot be qualified as unreasonable.

[15]      Lastly, the Appeal Division found that the applicant had breached a condition of the stay in that he had not reported, as required by the November 9, 1993 order as amended by the March 7, 1994, to the immigration authorities from mid 1995 to January 1996. The Appeal Division further found that when the applicant started to report in January 1996, he did not provide the authorities with his new address, as required by the November 9, 1993 order.

[16]      These findings and the Appeal Division"s appreciation of the totality of the evidence in regard to the factors set out in Ribic Marida v. M.E.I. (I.A.B. T-84-9623, August 20, 1985) led the Appeal Division to the conclusion that the stay ordered by the first panel on October 27, 1993 should be cancelled. The factors set out in Ribic are stated by the Appeal Division at page 7 of its reasons. They are as follows:

(1)      the seriousness of the offence leading to the deportation order;

(2)      the possibility of rehabilitation;

(3)      the length of time spent in Canada and the degree to which the appellant is established here;

(4)      the family in Canada and the dislocation to the family that deportation would cause;

(5)      the support available to the appellant, not only within the family but also within the community;

(6)      the degree of hardship that would be caused to the appellant by his return to his country of nationality.

[17]      The Appeal Division, correctly in my view, at pages 7 and 8 of its reasons, sets out the question for determination:

... What is before the panel is whether it should exercise its discretionary [sic] under paragraph 74(3)(b) of the Act. All the circumstances of the case includes the respondent"s initial situation, his new convictions and his situation since his stay.

[18]      Paragraph 74(3)(b) of the Immigration Act, R.S.C. 1985, c. I-2, provides as follows:

(3) Where the Appeal Division has disposed of an appeal by directing that execution of a removal order or conditional removal order be stayed, the Appeal Division may, at any time,

(3) Dans le cas visé au paragraphe (2), la section d'appel peut, à tout moment_:

(a) amend any terms and conditions imposed under subsection (2) or impose new terms and conditions; or

a) modifier les conditions imposées ou en imposer de nouvelles;

(b) cancel its direction staying the execution of the order and

b) annuler son ordre de surseoir à l'exécution de la mesure, et parallèlement_:

(i) dismiss the appeal and direct that the order be executed as soon as reasonably practicable, or

(i) soit rejeter l'appel et ordonner l'exécution dès que les circonstances le permettent,

(ii) allow the appeal and take any other action that it might have taken pursuant to subsection (1).

(ii) soit procéder conformément au paragraphe (1).

[19]      Although the Board did make a number of factual errors, these errors are not, in my view, determinant. The Board carefully and thoroughly reviewed all of the evidence in the light of the Ribic factors and concluded that in all the circumstances of the case, the stay should be cancelled and that the applicant"s appeal should be dismissed. Consequently, the Board directed that the removal order be executed as soon as reasonably practical.

[20]      I have not been persuaded that I should interfere with the Appeal Division"s decision. In the light of the evidence, the Board"s findings and its ultimate conclusion are entirely reasonable. It may well be that a different panel might have reached a conclusion favourable to the applicant but that is not the issue. This panel, as I have indicated, carefully examined all of the evidence and concluded that cancelling the stay was the wiser course. That decision is one that should not be interfered with. This judicial review application shall therefore be denied.

Ottawa, Ontario      "MARC NADON"

September 14, 1998      JUDGE

__________________

¹ Mr. Dombrady was the Minister"s representative at the June 8, 1997 hearing.