Phon v. Canada (Minister of citizenship and immigration), 2003 FCT 552

Date: 20030506

Docket: IMM-1891-02

Ottawa, Ontario, May 6, 2003

PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU

Between:

POR PHON

Plaintiff

And:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

ORDER

The application for judicial review is dismissed.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

Date: 20030506

Docket: IMM-1891-02

Citation: 2003 FCT 552

Between:

POR PHON

Plaintiff

And:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

REASONS FOR ORDER

ROULEAU J.

[1]                 This is an application for judicial review from a decision by the Appeal Division of the Immigration and Refugee Board ("the Appeal Division") on March 28, 2002, dismissing the plaintiff's appeal from a deportation order made against him on June 15, 2001, pursuant to s. 32(2) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act"). The latter is asking the Court to make an order quashing that decision.

[2]                 The plaintiff was born in Cambodia on October 11, 1968. He arrived in Canada with his mother, brother and four sisters on July 3, 1986. They left the Cambodian civil war in which part of their family had died of hunger and another part been murdered and persecuted by Khmer Rouge soldiers, on account of their Chinese origin. They obtained landing in Canada (permanent residence) the same day under a special program for selection of foreign nationals abroad.

[3]                 On June 15, 2001, a removal order was made against the plaintiff because he was a person covered by s. 27(1)(d) of the Act: he was convicted of offences for which a term of imprisonment of five years or more might be imposed.

[4]                 Specifically, the removal order was made because of two incidents for which the plaintiff was sentenced on November 16, 2000: robbery and sequestration committed on September 12, 1996, of which he was convicted on April 14, 2000, and sentenced to three years' imprisonment and two years' unsupervised probation; and possession of cocaine/crack on October 26, 1999, of which he was convicted on November 9, 2000, and sentenced to six months' imprisonment and two years' unsupervised probation. The prison terms were to be served consecutively and the probation concurrently. The plaintiff was kept in preventive detention for 13 months before the sentence was imposed.

[5]                 The plaintiff's record also included a number of convictions between 1996 and 1999, essentially for theft and break-ins and failure to comply with conditions already imposed, in various towns in Quebec.

[6]                 The Appeal Division exercised its jurisdiction under s. 70(1) of the Act, which reads as follows:

[7]                 The Appeal Division considered the question of whether "all the circumstances" that existed in the plaintiff's case could justify the making of a special order pursuant to s. 70(1)(b) of the Act. In exercising its discretion under that provision it considered the factors mentioned in Ribic, Marida v. Canada (Department of Employment and Immigration) (1985), I.A.B.D. No. 4 (QL) (I.A.B. 84-9623), which were approved by the Supreme Court in its recent judgment in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, namely:

(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) family in Canada and the dislocation to that family that deportation would cause; (5) the support available for 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.

These factors are not exhaustive and the weight to be accorded to each will vary with the circumstances.

[8]                 The Appeal Division considered the following, inter alia: the relatively recent assessment by the Correctional Service of Canada ("CSC"), on August 28, 2001, which strongly doubted that there was any possibility of rehabilitating the plaintiff, and his motivation; the plaintiff's lack of conviction in his expression of remorse and responsibility for his very serious crimes of robbery and sequestration; his contradictory comments at the hearing about whether he was dependent on drugs; the plaintiff's difficulties with French and his ignorance of English, which have so far prevented him from taking rehabilitation programs, and the absence of any reasonable explanation of why this would be different in future; the lack of support from his family or friends to help him change his life, apart from the follow-up provided by the CSC and social services; the limited extent to which he has become established in Canada, despite being here since 1986; and his failure in the past to observe the terms and conditions imposed on him.

[9]                 The Appeal Division also took into account positive factors such as the plaintiff's good work at a cabinetmaking workshop taken in prison and his progress in French. However, it found that these few positive factors did not suffice to offset the many negative factors affecting the chance of rehabilitating the plaintiff. It concluded on a balance of probabilities that the plaintiff had not established that he should not be removed from Canada. Consequently, it rejected the joint suggestion by the Minister's representative and counsel for the plaintiff that a stay of execution of the deportation order should be granted for seven years subject to certain terms and conditions.

[10]            The plaintiff argued that the Appeal Division erred in its interpretation of the circumstances which might justify exercising its equitable jurisdiction pursuant to s. 70(1)(b) of the Act. In particular, he challenged the Appeal Division's decision on the ground that it attached no importance to the humanitarian considerations associated with his situation or the danger involved in returning him to Cambodia.

[11]            The plaintiff argued that he had served his sentence in accordance with the order made against him and deportation would be an unnecessary, excessive and cruel additional punishment. His roots are in Canada, as he arrived here with his family at the age of 18, and he has no further connection with Cambodia, where all his relations were eliminated under the Pol Pot government. The plaintiff submitted that if he were removed he would be alone, with no resources and completely impoverished, in an impossible situation, inhumane conditions and insurmountable difficulties that would entail serious consequences for his life and safety.

[12]            Without minimizing the seriousness of the offences committed, for which he was sentenced and for which he served a severe penalty, the plaintiff submitted that the Appeal Division had taken no account of the sincerity of his repentance and had placed a subjective interpretation contrary to his interests on the explanations he gave in this regard during the hearing. The plaintiff submitted that the interpretation given by the Appeal Division was an arbitrary opinion, a value judgment resulting from a preconceived idea devoid of good faith, from which it drew an unreasonable and excessive conclusion.

[13]            The plaintiff challenged the Appeal Division's assessment regarding [TRANSLATION] "Establishment in Canada", considering it was overdone and took no account of the changes in his conduct and the positive assessment of the authorities at the penitentiary. In its assessment, he said, the Appeal Division only took into account negative aspects of the plaintiff's past, attaching no credit to the positive aspects that clearly indicated a desire for, and real possibility of, rehabilitation. Further, the Appeal Division relied only on the suspicions and uncertainties expressed by the CSC, but interpreted them as established facts in giving reasons for its decision, thereby exceeding its jurisdiction.

[14]            The plaintiff rebutted the Appeal Division's assessment of [TRANSLATION] "Available support", namely that [TRANSLATION] "apart from the follow-up provided by the CSC and social services, the appellant has no support to help him change his life". In the plaintiff's submission, this was a value judgment which exceeded the Appeal Division's jurisdiction and had nothing to do with the decision to make a deportation order against him.

[15]            The plaintiff further challenged the Appeal Division's comments regarding his chances of rehabilitation. He maintained that the panel had disregarded all openness and compassion and humanitarian considerations, which even the Canadian penitentiary system has for its inmates who have had serious problems with life and the law.

[16]            The plaintiff submitted that though s. 32(2) of the Act authorizes an adjudicator, and even imposes on him or her a duty, to make a deportation order without considering such points, the very purpose of appealing such a decision is to correct deficiencies regarding humanitarian factors associated with his own position and the danger involved in returning him to Cambodia. The plaintiff argued that the Appeal Division neglected to take these two points into account, first by giving a restrictive interpretation to the humanitarian factors from which he might benefit and avoiding any consideration of the political situation in Cambodia; second, by rejecting the joint suggestion of his counsel and the Minister's representative to grant a stay, retreating behind the fact that [TRANSLATION] "it is not the panel's function to consider whether the removal order will be easy to carry out".

[17]            The plaintiff argued that by acting in this way the Appeal Division had rendered an unreasonable and cruel decision by returning him to a country with which he had no ties; it also rendered a decision contrary to Canada's international obligations, according to which a refugee status claimant can under no circumstances be returned to a country where his life and safety would be in great danger.

[18]            The plaintiff further maintained that the Appeal Division had not properly assessed the evidence as a whole. He argued that it neglected all the positive aspects of his situation, including the suggestion by his counsel and the Minister's representative, and only looked at the negative aspects in support of its decision to dismiss his appeal. In so doing, it drew erroneous and unreasonable conclusions that warrant intervention by this Court.

[19]            The power to make a removal order pursuant to s. 70(1)(b) is a discretionary one and a court can only intervene where the power has not been exercised in good faith or was exercised in an arbitrary or illegal way or subject to an irrelevant consideration: Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299, at para. 75 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Saintelus, [1998] F.C.J. No. 1290, at paras. 8-9 (QL) (F.C.T.D.). Further, an administrative tribunal is deemed to have taken all the evidence before it into account and only needs to mention specifically such evidence as is contrary to its findings: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.); Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (QL) (F.C.T.D.).

[20]            Additionally, in Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270 (C.A.), the Federal Court of Appeal clarified the meaning of the phrase "having regard to all the circumstances of the case" contained in s. 70(1)(b) of the Act, indicating that not only are the person's circumstances in question, but these must be considered in an overall context in terms of the good of society and the individual. Accordingly, in exercising its discretion the Appeal Division must also take into account the principles and policies underlying the Act, especially that mentioned in s. 3(i) of the Act. That provision reads as follows:

[21]            By his arguments the plaintiff is essentially seeking to substitute his opinion for that of the Appeal Division in assessing the evidence submitted at the hearing; he is also seeking to belatedly provide explanations regarding deficiencies found in his evidence by the panel. From my reading of the Appeal Division record, I am satisfied that it exercised its discretion "objectively, dispassionately and in a bona fide manner after carefully considering relevant factors": see Chieu, supra, at para. 90.

[22]            At the hearing before the Appeal Division the Minister's representative argued that since the plaintiff was a refugee and a stateless person the removal order was likely to be difficult to carry out, explaining that it would be hard to find a safe third country that would be prepared to take him. He therefore argued that in order to provide governmental control of the plaintiff it would be better to stay the removal order but impose strict conditions under it, rather than dismiss his appeal. In its decision the Appeal Division concluded that although the factors listed in Ribic are not exhaustive, consideration of whether the removal order would be easy to carry out is not the function of the panel, but of the Minister. I agree.

[23]            In Chieu, supra, the Supreme Court of Canada indicated that the Appeal Division has the right to consider possible problems abroad when it exercises the discretion conferred on it by s. 70(1)(b) of the Act, provided the individual removed has established a likely country of removal on a balance of probabilities. The Minister should facilitate determination of the likely country of removal before the Appeal Division whenever possible in order to encourage effective application of the Act. At paras. 56-57 of his reasons Iacobucci J. indicated the procedure to be followed in an appeal under s. 70(1)(b) as follows:

First, the onus is on a permanent resident facing removal to establish the likely country of removal, on a balance of probabilities. It is only in those cases where the Minister disagrees with an individual's submissions as to the likely country of removal that the Minister would need to make submissions as to why some other country is the likely country of removal, or as to why a likely country of removal cannot yet be determined. This would be the case, for instance, where the Minister is involved in negotiations with a country other than an individual's country of nationality or citizenship with regard to accepting that individual. Second, in appeals under the I.A.D.'s discretionary jurisdiction, the onus has always been on the individual facing removal to establish why he or she should be allowed to remain in Canada. ...

The Court concluded that the Appeal Division should first determine whether there is a likely country of removal, and if so, ascertain whether the problems the appellant might face in that country suffice to alter the prior equilibrium of relevant factors and so allow the appellant to remain in Canada. Further, the Appeal Division is authorized to look at the situation of the likely country of removal even though, at the time the appeal brought pursuant to s. 70(1)(b) was heard, it did not know with absolute certainty what the likely country of removal would be.

[24]            The purpose of the Act is to authorize the Immigration Appeal Board, in certain circumstances, to improve the situation of an appellant against whom a valid deportation order has been made, allowing him to remain in Canada on compassionate grounds. The aim of s. 70(1)(b) of the Act is to give the Appeal Division the power to determine whether a permanent resident should be removed from Canada once a likely country of removal has been established. However, it is the Minister of Citizenship and Immigration, under s. 52 of the Act, who is given the power to determine to what country a permanent resident will be removed. In the Supreme Court of Canada's recent judgment in Al-Sagban v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 133, Iacobucci J. summarized the scope of the Minister's power under s. 52 of the Act at para. 2 of the judgment as follows:

The Minister's jurisdiction to make a decision under s. 52 only exists while an individual has a removal order entered against them. If the I.A.D. quashes or stays a removal order, the Minister no longer has anyone to remove and so no longer has the jurisdiction to make a decision under s. 52. But it is open to the Minister to make submissions at the hearing of s. 70(1)(b) appeal with regard to the country the Minister intends to remove a permanent resident to, or to make the s. 52 decision prior to the hearing. Submissions regarding the country of removal are only necessary where the country of removal is in dispute, which will generally be the case only when the intended country of removal is one other than the individual's country of nationality or citizenship.

[25]            Further, in Chieu, supra, Iacobucci J. explained clearly at para. 75 of the judgment that the Appeal Division cannot make a decision as to the country of removal because that decision is reserved to the Minister under s. 52. However, when a likely country of removal is known at the hearing, the Appeal Division can consider potential foreign hardship when exercising its discretionary jurisdiction.

[26]            Accordingly, based on Chieu and Al-Sagban, it seems clear to the Court that where the question of [TRANSLATION] "whether the removal order will be easy to carry out" will depend on establishing a likely country of removal for the plaintiff at the hearing, the Appeal Division's task is limited to determining if a likely country of removal is known. If the likely country of removal has not been established before the Appeal Division, the latter is not authorized to grant a stay of a removal order on the basis that it may be difficult to carry out. Only the Minister is authorized to make such a decision under s. 52 of the Act after the Appeal Division has dismissed the appeal.

[27]            Having said that, I also consider that once an appellant's likely country of removal has been established, [TRANSLATION] "whether the removal order will be easy to carry out" is not in itself a relevant factor in the Appeal Division's exercise of its discretionary jurisdiction under s. 70(1)(b). The factors mentioned in Ribic are still factors to be considered by the Appeal Division in an appeal under s. 70(1)(b). According to Chieu, supra, the Appeal Division must consider all the circumstances, including potential foreign hardship, under that paragraph to determine whether a removal order should be quashed or stayed.

[28]            In the case at bar, the plaintiff argued that the Appeal Division made an error when it did not consider the present situation in Cambodia. He further argued that his removal to Cambodia would be contrary to the Geneva Convention, which prohibits removal of a refugee to a country where his life or safety will be in danger.

[29]            From my reading of the record I find that no decision seems to have been made under s. 52 of the Act regarding the country to which the plaintiff will be deported. He was born in Cambodia but left it for Vietnam at about age 5 or 6, where he spent most of his youth and is a temporary resident. He is also stateless, although the deportation order indicates that he is a national of Cambodia. The plaintiff said he left Cambodia when he was young and did not know the current situation in that country, with which he no longer has any ties.

[30]            At the hearing, although he testified that he feared returning to Cambodia, the plaintiff submitted no independent evidence about the situation in that country or his status as temporary resident. Relying on Chieu, the Appeal Division concluded that [TRANSLATION] "since the plaintiff is a refugee and stateless . . . he did not establish on a balance of probabilities the country to which he would likely be deported". Consequently, it refused to make any ruling on the situation in Cambodia and concluded that the plaintiff had not established on a balance of probabilities that he should not be removed from Canada.

[31]            In Chieu, supra, the Supreme Court of Canada explained at paras. 53 and 78 that the country of removal for a permanent resident who is not a refugee is rarely any country other than the one of which he is a national, so that the likely country of removal is generally known at the hearing of the appeal under s. 70(1)(b). In the case of permanent residents who are also Convention refugees, it is less likely that a country of removal can be ascertained. This is what Iacobucci J. said, at para. 58 of his reasons:

Finally, I note that the likely country of removal will often not be ascertainable for Convention refugees because s. 53 of the Act prohibits their 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 particular enumerated classes and the Minister is of the opinion that the individual constitutes a danger to the public in Canada (s. 53(1)(a), (c) and (d)) or a danger to the security of Canada (s. 53(1)(b)). Section 53 implements Canada's international commitment under Article 33 of the 1951 Geneva Convention to protect against refoulement, the principle of international law which requires that no state shall return a refugee to a country where his or her life or freedom may be endangered, except where a refugee is a danger to national security or a danger to the community the host state. As a result, most Convention refugees cannot be removed to their country of nationality or citizenship, but often no other country will be obliged or willing to accept them. In such cases, there will be no likely country of removal at the time of the appeal and the I.A.D. cannot therefore consider foreign hardship. [My emphasis.]

[32]            In the case at bar, unlike the facts inChieu, supra, the Appeal Division considered the question of whether the plaintiff's likely country of removal had been established by him on a balance of probabilities. In view of the fact that he fled Cambodia and obtained refugee status, he could not be returned to that country, where he is a national. That country therefore could not be the likely country of removal. Further, the Minister's representative and counsel for the plaintiff submitted at the appeal that neither Cambodia nor Vietnam were required to accept him, since he is stateless, so that neither of those two countries could be the likely country of removal. In these circumstances, the Appeal Division properly concluded that the plaintiff had not established his likely country of removal on a balance of probabilities. Consequently, it did not have to consider the problems he might face in Cambodia when it exercised its discretionary authority under s. 70(1)(b).

[33]            In my view, the Appeal Division exercised its discretion legally, not in an arbitrary way, in good faith and without being influenced by irrelevant factors. Accordingly, I cannot intervene to quash its decision.

[34]            For all these reasons, I dismiss this application for judicial review.

OTTAWA, Ontario

May 6, 2003

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 APPEAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               IMM-1891-02

STYLE OF CAUSE:                                                     POR PHON v. MCI

PLACE OF HEARING:                                                Montréal

DATE OF HEARING:                                                  April 29, 2003

DATE OF REASONS:                                                  May 6, 2003

APPEARANCES:

Jean Baillargeon                                                                 FOR THE PLAINTIFF

Michel Pépin                                                                      FOR THE DEFENDANT

SOLICITORS OF RECORD:

Jean Baillargeon                                                                 FOR THE PLAINTIFF

2130 Bourbonnière

Sillery, Quebec

G1T 1B1

MORRIS ROSENBERG                                                 FOR THE DEFENDANT

Federal Department of Justice

Complexe Guy-Favreau

200 ouest, Boul. René-Lévesque

Tour Est, 5^e étage

Montréal, Québec

H2Z 1X4