Date: 20050913
Docket: IMM-7777-04
Citation: 2005 FC 1248
Ottawa, Ontario, this 13th day of September, 2005
Present: The Honourable Justice James russell
BETWEEN:
A.B.
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
APPLICATION
[1] This is an application under s. 74 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 ("IRPA"), for judicial review of a decision of the Immigration Appeals Division ("IAD") dated August 19, 2004, ("Decision") wherein the IAD dismissed the Applicant=s appeal of a deportation order issued against him.
[2] The deportation order was appealed to the IAD pursuant to s. 70(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2 ("Immigration Act").
BACKGROUND
[3] The Applicant is a 25-year-old citizen of Sri Lanka. He is a Tamil. He came to Canada in 1990, was found to be a refugee on March 20, 1991, and subsequently obtained permanent resident status on September 9, 1994.
[4] In November 2001, based on a conviction for forcible confinement in 1999, the Applicant was ordered deported, as a person described in s. 27 of the Former Act (he had been convicted of an offence for which a term of imprisonment of more than six months was imposed, and more than five years could be imposed). He appealed his deportation order to the IAD under s. 70(1)(b) of the Immigration Act and the IAD dismissed his appeal.
[5] The Applicant concedes his conviction, and admits that he was a gang member in Scarborough. He also admits that, besides his conviction, he had been involved in other activities with the gang including car thefts and concealing weapons at his home.
[6] Since his conviction, the Applicant has acted as a police informant and claims to have distanced himself from gang activity. He was gainfully employed from 2000-2003 at Midas, doing repairs to car engines. He is not presently working and says he wants to concentrate on his grades. He is currently a student at Seneca College, studying computer programming and software analysis. He testified in November 2003 that he believed that the gangs were much calmer in Scarborough and that they are now more disorganized than they were in the past.
[7] The Applicant=s younger brother is deaf. The Applicant argues that the family would suffer hardship if he is deported.
DECISION UNDER REVIEW
[8] In making the Decision to deny the appeal, the IAD, applying the principles of Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, para. 90 and Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4, considered the following in relation to the Applicant:
a) He has been in Canada for 13 years;
b) He continues to live in Scarborough in the area where he first became involved in gang activity;
c) He has previously breached a condition of his release;
d) His protestations of remorse and commitment to rehabilitation were insincere;
e) He is attending college and working while attending school;
f) He has extensive involvement with the criminal element in Toronto;
g) His mother is not well informed of his criminal activities;
h) His younger brother is deaf and would experience hardship if the Applicant is removed from Canada but not enough to preclude the Applicant's removal;
i) He has had a number of domiciles but has lived largely with his mother;
j) He claims to have a girlfriend;
k) The impact of the crimes on the victims and on society in general;
l) His family is not financially dependent on the Applicant; and
m) Although the Applicant's family will miss him if he is removed from Canada, they will not experience undue hardship.
[1] The IAD found that:
(i) The Applicant's testimony was evasive, and inconsistent;
(ii) The Applicant lacked remorse for his criminal behaviour and downplayed his criminal involvement;
(iii) The Applicant did not appreciate or acknowledge the ramifications of his crimes;
(iv) The past efforts of the Applicant's family had not been successful in steering him clear of criminality. The Applicant, in fact, testified that he had not heeded the good advice of his family in the past and no satisfactory evidence was provided as to why this might change in the future. The Applicant's mother also indicated that she knew little about the Applicant's criminality;
(v) The Applicant's versions of events leading to his criminal conviction were simply not credible. The IAD preferred the version of events outlined in the various police occurrence reports;
(vi) The Applicant had been a member of the Gilder Boys gang. There was extremely strong evidence that he had previously participated in gang activities, had committed criminal offences with gang members and had associated with gang members;
(vii) On a balance of probabilities, there was a likelihood that the Applicant would re-offend and that the possibility of rehabilitation was poor, even taking into consideration the fact that he had not re-offended for the last few years and had provided information to the police; and
(viii) While removal from Canada would create some hardship for the Applicant and his family members, it would not be undue.
[10] The IAD considered the issue of country conditions. Following the Supreme Court of Canada's decision in Chieu, however, the IAD noted that an assessment of those conditions was not possible because the country of likely removal had not been established.
[11] The IAD considered granting the Applicant a stay with conditions attached, but declined to do so given his past failure to abide by terms and conditions imposed by the Court and his increased criminal activity after promising his mother he would cease such activities and moving to Ottawa
.
[12] The IAD concluded that the Applicant had not shown, on a balance of probabilities, why he should not be removed from Canada. It dismissed the Applicant's appeal. In coming to this conclusion, the IAD considered the impact of the crimes on the victims and on society in general.
ISSUES
[13] The Applicant raises a number of issues for judicial review which can be summarized under two main headings:
(i) The IAD erred in law by ignoring or misconstruing evidence; and
(ii) The IAD erred in law by drawing conclusions from a lack of evidence, or without regard to the evidence properly before the IAD.
ANALYSIS
[14] Subsection 70(1) of the Immigration Act provides as follows:
| 70(1) where a removal order (¼) is made against a permanent resident (¼), that person may appeal to the Appeal Division on either or both of the following grounds, namely,
a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
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70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux r_glements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:
a) question de droit, de fait ou mixte;
b) le fait que, eu égard aux circonstances particuli_res de l'esp_ce, ils ne devraient pas _tre renvoyés du Canada.
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[15] Section 3 of the Immigration Act states as follows:
3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
¼
(i) to maintain and protect the health, safety and good order of Canadian society; and
(j) to promote international order and justice by denying the use of Canadian territory to persons who are likely to engage in criminal activity.
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3. La politique canadienne d'immigration ainsi que les r_gles et r_glements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, _ promouvoir les intér_ts du pays sur les plans intérieur et international et reconnaissent la nécessité:
¼
(i) de maintenir et de garantir la santé, la sécurité et l'ordre public au Canada;
(j) de promouvoir l'ordre et la justice sur le plan international en n'acceptant pas sur le territoire canadien des personnes susceptibles de se livrer _ des activités criminelles.
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[16] In Chieu, the Supreme Court of Canada affirmed that the factors set out in the IAD's decision in Ribic are the factors to be applied in such appeals. Moreover, the Supreme Court of Canada confirmed that the onus is on an appellant to show exceptional reasons why he or she should not be removed from Canada. The Court stated at para. 90 of Chieu:
The factors set out in Ribic, supra, remain the proper ones for the I.A.D. to consider during an appeal under s. 70(1)(b). On such an appeal, the onus is on the individual facing removal to establish exceptional reasons as to why they should be allowed to remain in Canada. (emphasis added)
[17] In Canepa v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 270, (approved in the Supreme Court of Canada's decision in Chieu) the Federal Court of Appeal considered the meaning of the expression "having regard to all the circumstances of the case, the person should not be removed from Canada" mentioned at paragraph 70(1)(b) of the Immigration Act. The Federal Court of Appeal stated that this expression refers to the circumstances of the person as well as the circumstances related to the good of society:
The second objection had to do with the Board's statement that "in these cases the Board is required to carefully weigh the interests of Canadian society against the interests of the individual." This, it is submitted, is a different test from that mandated by statute, viz., whether "having regard to all the circumstances of the case, the person should not be removed from Canada."
I cannot accept that the phrase "having regard to all the circumstances of the case" means that a tribunal should, to make such a judgment, abstract the appellant from the society in which he lives. The statutory language does not refer only to the circumstances of the person, but rather to the circumstances of the case. That must surely be taken to include the person in his total context, and to bring into play the good of society as well as that of the individual person. I cannot accept that the social considerations had been taken account of once and for all by the order of deportation itself. In my view paragraph 70(1)(b) of the Act requires that they be considered again, but this time along with every extenuating circumstance that can be adduced in favour of the deportee.
Canepa, pp. 285 - 286 (emphasis added)
[18] It is well settled by the following line of cases that, if the discretion of the IAD has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, the Court should not interfere with its decisions, even if the Court might have exercised the discretion differently:
Boulis v. Canada (Minister of Manpower & Immigration), [1974] S.C.R. 875">[1974] S.C.R. 875, 26 D.L.R. (3d) 216
Jessani v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 662. A-242-00 (F.C.A.), April 27, 2001, at paragraph 16
Grewal v. Canada (Minister of Citizenship and Immigration), 2003 FC 960; [2003] F.C.J. No. 1223; (7 August 2003), Doc. No. 5969-02 FC., paras. 5, 9-10
Vong v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1616, 2004 FC 1317; (1 October 2004), Doc. No. IMM-7326-03, para 4
[19] It is also well understood in the jurisprudence that questions of fact and questions relating to the weighing of evidence by the IAD should be upheld unless they are patently unreasonable.
Tse v. Canada (Secretary of State), [1993] F.C.J. No. 1396
Krishnan v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 639 2005 FC 517
[20] I agree with the Respondent that the Applicant, who has already been found to be inadmissible, and who is the subject of a deportation order bears the onus of establishing that, having regard to all of the circumstances in the case, he should not be removed from Canada.
[21] However, notwithstanding the high degree of deference that a decision of the IAD attracts, I believe there is reviewable error in this case.
[22] In the end, the matter comes down to a consideration of the guidance provided by Evans J. in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) and its applicability to the Decision in this case:
¼
16. On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
17. However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
¼
[23] In the present case, in applying the principles in Chieu and Ribic, the IAD was required to consider the important issue of the likelihood of the Applicant's re-offending.
[24] On this crucial issue, there was no evidence before the IAD of any criminal involvement by the Applicant after 1999. Also, the Applicant had acted as a police informant for a considerable period of time and, in so doing, had placed himself in danger. His parole officer had the following to say about him in a letter of October 8, 2002, that was before the IAD:
Please be advised that I have been the probation officer for the above-named individual for the past three years. In that period of time there has been no supervision concerns on my part and he has complied satisfactorily with his probation. Within the past two months I have verified that Bobby is employed and well regarded at his workplace (the shop is located at Ellesmere road and Kennedy Road). In addition, I attend one of his college classes at Seneca College (York campus) to confirm his attendance (I was also provided with a copy of his class schedule as well). He has made great strides in the past three years, which leads to the impression that the probability of recidivism appears low.
[25] As the Applicant points out, the letter from the parole officer is particularly telling. It was the only piece of objective evidence dealing with the likelihood of the Applicant's recidivism by someone who had observed his conduct since 1999. Yet, the IAD does not deal with it specifically.
[26] This was extremely important evidence that favored the Applicant and conflicted with the IAD's conclusions on the likelihood of his re-offending. Applying the principles enunciated in Cepeda-Gutierrez, I can only infer that the IAD's silence on these important matters means that the IAD made an erroneous finding without regard to the evidence, and the Decision is, therefore, patently unreasonable.
[27] The Decision appears to suggest that the IAD was principally concerned with the Applicant's behavior up to and including his 1999 conviction. In its weighing of factors, it is not clear to what extent the Applicant's behavior since that time, and the important positive factors that do not support the IAD's conclusions, were taken into account. It would be unsafe to let the Decision stand.
ORDER
THIS COURT ORDERS THAT:
1. The Application is granted and the matter is returned for reconsideration by a differently constituted panel.
2. The confidentiality provisions presently in place should be continued with regard to this application, including the reasons and order.
3. There is no question for certification.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7777-04
STYLE OF CAUSE: A.B.
V.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: JULY 5,2005
REASONS FOR ORDER
AND ORDER : THE HONOURABLE MR.JUSTICE
RUSSELL
DATED: SEPTEMBER 13, 2005
APPEARANCES:
APPLICANT: MR.LORNE WALDMAN
RESPONDENT: MS.RHONDA MARQUIS
SOLICITORS ON THE RECORD:
LORNE WALDMAN
BARRISTER & SOLICITOR
TORONTO, ONTARIO
FOR APPLICANT
JOHN H.SIMS,Q.C.
DEPUTY ATTORNEY GENERAL
OF CANADA
FOR RESPONDENT
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