Date: 20050907
Docket: IMM-3634-04
Citation: 2005 FC 1212
BETWEEN:
SUGENDRAN BALATHAVARAJAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This application is for judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board dated March 29, 2004 (the "Decision"). The IAD dismissed the Applicant's appeal of a Deportation Order dated December 12, 2001 (the "Order").
[2] The Order shows that the Applicant is a citizen of Sri Lanka. It does not indicate a deportation destination. It further provides that the Applicant is a person described in paragraph 27(1)(d) of the Immigration Act, R.S.C. 1985, c. I-2 because he was convicted of possession of an instrument used for breaking and entering contrary to subsection 351(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. This was an indictable offence and he was liable to imprisonment for a term not exceeding ten years. For this reason, the Order states that he is to be deported pursuant to subsection 32(2) of that Act.
[3] The Decision includes the following information about the Applicant's background:
[3] The appellant is a 26-year old citizen of Sri Lanka. He came to Canada in 1990 and was found to be a Convention refugee in 1991. He became a permanent resident on May 12, 1999. He has a number of relatives in Canada including his immediate family consisting of his parents, a brother and a sister. He lives with his parents, his brother and his common-law spouse, Sherine Richard.
[4] The appellant's first encounter with the law as an adult occurred in June 1997. According to his testimony, Sherine's family opposed their relationship because they are Christian and he is Hindu. On June 24, 1997 the appellant testified that one of Sherine's four brothers started a fight with one of the appellant's friends at a plaza. The appellant went to the plaza and punched him. The brother subsequently warned the parents of the appellant's friend that their son should not associate with the appellant. The friend told the appellant about this and a group of them went to confront the brother who was in a parked van. A baseball bat was taken to the van and the brother was beaten. The van was commandeered, driven a short distance and smashed into a wall.
[5] The following day the appellant testified that he was helping one of this friends fix his car stereo system using metal pipes. When the police arrested the appellant and charged him with assault of the brother, they found one of the metal pipes on his person.
[6] The appellant was charged with assault, theft over $5,000, uttering threats and carrying a concealed weapon. He was eventually convicted of two counts of assault, given a suspended sentence, probation for 12 months and a 10-year firearms prohibition.
[7] Two months later (August 1997) the appellant was arrested with some boys in the parking lot at Wonderland. The appellant testified that his friends were robbing cars and when the authorities came after them, one of the boys tossed a screwdriver into their car where the appellant was sitting and he his it in his pocket. He gave his brother's name and date of birth when he was arrested. He was charged with seven offences. He pleaded to four of them and the Crown withdrew the others. Specifically he was convicted of two counts of theft under $5,000 (in relation to stolen money and stolen credit cards), one count of possession of a break-in instrument (the screwdriver) and one count of attempt to obstruct justice (giving the false name and birth date). He was sentenced to seven days concurrent on each count of theft under $5,000 plus one-year probation and seven days concurrent on the other counts but consecutive to the first seven days.
[8] In October 1997 the appellant was charged in relation to a broken window at a donut shop. He again identified himself as someone else when arrested. He was charged and convicted of mischief under $5,000, obstruct police officer and fail to comply with recognizance. He was sentenced to one day plus fifteen days probation for the mischief conviction and one day consecutive for the other two counts.
[9] In addition, the appellant was convicted of failure to comply with probation (February 1999). He received a suspended sentence and eight months probation.
[10] The appellant came to the attention of immigration authorities through what has become knows as Project 1050. In the spring of 2001, the Toronto Police Service created the Street Violence Task Force to try and deal with the increasing problem of gang violence. The two main Tamil gangs in Toronto are the A.K. Kannan Gang and the V.V.T. Gang. They are rivals and within these two major gangs are several associated gangs. The Gilder Boys is an affiliate aligned to the V.V.T. On October 18, 2001 a number of warrants were executed in a coordinated fashion in several cities in Ontario including Toronto that resulted in 59 arrests. The appellant was one of the people arrested. The Toronto Police Service had identified him as a member of the Gilder Boys.
THE MINISTER'S MOTION
[4] During the Applicant's appeal from the Order before the IAD, the Minister of Citizenship and Immigration (the "Minister") brought a motion asking the IAD to consider a new ground of inadmissibility and find that the Applicant, as a member of the Gilder Boys' gang, is inadmissible on the grounds of organized criminality under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the "Motion").
[5] At paragraph 17 of the Decision, the IAD dismissed the Minister's motion. It said that gang membership would not be considered as the basis for a new ground of inadmissibility pursuant to section 37 of the IRPA. Gang membership would only be treated as relevant to the seriousness of the offences and the issues of rehabilitation and public safety.
THE DECISION
[6] The IAD concluded that, on a balance of probabilities, the Applicant was a member of the Gilder Boys and that he associated with them until 2001. This conclusion was based on the evidence of a police informant and the surveillance work of a police officer who testified before the IAD about his personal observations.
[7] The IAD summarized its conclusions at paragraph 18 of the Decision. There is said:
[18] On the evidence before me, I find that the deportation order is valid in law. I find in all the circumstances of the case that there are insufficient factors to exercise my discretion in favour of the appellant. In my view, the appellant does not show remorse for his past crimes and there is credible evidence that he was, at the very least, associating with people engaged in criminal activity in 2000, a year after he testified he left from his criminal friends and his criminal life style. The appellant's support system is weak and has not had much influence on him in the past, which are indicators that it will not be able to influence him in the future. A stay is not an appropriate disposition. Therefore, I am dismissing the appeal.
[8] In reaching its Decision, the IAD did not assess the hardship the Applicant might face if he were to be deported to Sri Lanka.
[9] The Decision was therefore based only on the Applicant's submissions about the factors listed in Ribic, Marida v. M.E.I. (I.A.B. 84-9623), D. Davey, Benedetti, Petryshyn, August 20, 1985. They are:
(1) the seriousness of the offence or offences leading to the removal order;
(2) the possibility of rehabilitation;
(3) the length of time spent and the degree to which the appellant is established in Canada;
(4) the family in Canada and the dislocation to the family that removal would cause; and
(5) the family and community support available to the appellant.
THE ISSUES
[10] Against this background, the Applicant says that the Decision is patently unreasonable because:
1. The IAD failed to consider the hardship faced by the Applicant in Sri Lanka.
2. The IAD had no proper evidentiary basis to support its conclusion that the Applicant was a member of the Gilder Boys.
3. The IAD failed to give adequate consideration to the Applicant's evidence about his rehabilitation.
Issue 1
[11] In Chieu v. Canada(Minister of Citizenship and Immigration), [2002] S.C.C.3., the Supreme Court of Canada considered whether, on an appeal from a Deportation Order, the IAD is required to consider hardship in the country of return. In Chieu, the Applicant had both Cambodian and Vietnamese citizenship. He arrived in Canada further to a sponsorship application by his sister. He was not a refugee claimant. He became a permanent resident but it was alleged that he obtained that status through misrepresentation.
[12] In Chieu, at paragraph 55 the Court said:
I also do not believe that allowing the I.A.D. to take foreign hardship into account under s. 70(1)(b) interferes with the Minister's jurisdiction to decide the country of removal. If the I.A.D. decides to quash or stay a removal order, it does not interfere with the Minister's jurisdiction under s. 52, because there is no longer a removal order in place for which a s. 52 decision needs to be made. In other words, the Minister's jurisdiction to decide the country of removal becomes inoperative when a removal order is quashed or stayed, as there is no longer anyone to remove. While the Act does not prevent the Minister from making the s. 52 decision prior to the hearing of the s. 70(1)(b) appeal, if the Minister decides to wait until after the hearing to make a decision under s. 52, she runs the risk of losing jurisdiction to make that decision because there will no longer be anyone to remove. In my opinion, this was the intended scheme of the Act. I therefore see no reason why s. 52 should prevent the I.A.D. from considering foreign hardship in the likely country of removal when hearing an appeal under s. 70(1)(b).
[13] Based on this passage, the Applicant says that Chieu stands for the proposition that, when a likely country of removal can be identified, the IAD is required to consider hardship in that country when it hears an appeal from a Deportation Order.
[14] In this case, the IAD acknowledged the requirement. However, it concluded that the Applicant had not met the onus of showing that, on a balance of probabilities, he would be deported to Sri Lanka. This was so, it said, because the Minister has not selected a country for removal and because the Applicant is a convention refugee who remains protected by subsection 115(1) of the IRPA.
[15] In my view the IAD's finding that the Applicant was a member of the Gilder Boys does not constitute a finding of inadmissibility under section 37 of the IRPA. My view is reinforced by the fact that the conclusion about gang membership was reached during a hearing in which the IAD had refused the Minister's Motion asking it to deal with inadmissibility.
[16] Further, even though the Applicant has only Sri Lankan citizenship, it cannot be said that his deportation to Sri Lanka is "likely" when he remains protected by subsection 115(1) of the IRPA and when the Minister has not designated a deportation destination.
Issue 2
[17] In my view, the police informant's evidence and the direct evidence of Detective Fernandez show, on the balance of probabilities, that the Applicant was a member with the Gilder Boys and active in credit card and debt card fraud.
[18] The evidence about the Applicant's association with the Gilder Boys was used by the IAD to conclude that he had lied about the start of his period of alleged rehabilitation. The sources relied on were legitimate and I cannot conclude that it was patently unreasonable of the IAD to decide that the Applicant's efforts to rehabilitate himself began, if at all, two years after the dated he provided.
Issue 3
[19] The Applicant says that his submissions about his employment and his settled home life with his wife and parents were not given adequate assessment.
[20] I have not been persuaded by this submission. The Decision shows that all relevant matters were weighed and the conclusions reached, while unpopular with the Applicant, were not patently unreasonable.
CERTIFIED QUESTIONS
[21] The Applicant proposed the following questions for certification:
1. Who has the authority to decide whether the bar to non-refoulement in section 115 of the IRPA applies - the IAD or an Immigration Officer making a Pre-Removal Risk Assessment?
2. Is the Court's decision in Soriano v. Canada (Minister of Citizenship and Immigration), 2003 FCT 508 a correct interpretation of the Supreme Court of Canada's decision in Chieu regarding whether the IAD can consider the country's conditions related to a permanent resident who is a convention refugee?
3. Is a Deportation Order, with respect to a permanent resident who has been declared to be a convention refugee, which specifies as sole country of citizenship the country which he fled as a refugee, sufficient without more to establish that country as the likely country of removal so that Chieu applies and the IAD is required to consider hardship to the Applicant in that country on an appeal from a Deportation Order?
[22] Question one will not be certified because the answer could not be dispositive in this case. Question two will not be certified for the same reason. It is noteworthy that, in Soriano, the removal destination was known (see page 2) and the issue was the nature of the evidence which could be adduced to demonstrate hardship (see page 5). However, question three is, in my view, appropriate for certification pursuant to section 74 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
"Sandra J. Simpson"
Ottawa, Ontario
September 7, 2005
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