Date: 20010219
Docket: IMM-1298-00
Neutral Citation: 2001 FCT 95
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
WON PIL PARK
Respondent
REASONS FOR ORDER
DUBÉ J
[1] The Minister seeks the judicial review of a decision of a member of the Immigration Appeal Division of the Immigration and Refugee Board ("the Member"), rendered on February 29, 2000, wherein he dismissed the Minister's motion to have the respondent's ("Mr. Park") stay of removal cancelled. The Member instead granted another stay of Mr. Park's deportation order.
1. Facts
[2] Mr. Park, a former citizen of South Korea, was ordered deported on February 21, 1995, following his conviction on June 11, 1993, of the dangerous operation of a motor vehicle causing death and failing to stop at the scene of the accident. He was sentenced to two years imprisonment and prohibited from driving for four years. Mr. Park appealed his deportation order to the Appeal Division and on November 7, 1996, it stayed Mr. Park's deportation order for four years. Under the terms of the stay, Mr. Park was required to report in writing to the Appeals Office every six months, to keep the peace and be of good behaviour.
[3] However, on January 4, 1999, Mr. Park was convicted of the offence of driving while ability impaired. In addition, he failed to report on two occasions and also failed to report that he had been charged and convicted of another offence. Consequently, the Minister filed an application to the Appeal Division requesting that it conduct a review of the circumstances of Mr. Park's case, reconsider and cancel its decision to stay the deportation order, dismiss his appeal and direct that the deportation order be executed as soon as reasonably practicable.
[4] On February 29, 2000, the Member, with the alleged consent of the Minister, denied the motion and ordered that the stay continue for a period of three years under certain conditions.
2. The Member's Decision
[5] At the outset of his decision, the Member stated that he was "of the opinion that the respondent has not complied with the condition to report every six months as required". He heard "the testimony of the respondent and found it to be contrived and neither credible nor trustworthy". He also found "that the respondent did breach the condition to keep the peace and be of good behaviour by being charged and convicted for the offence of driving while ability impaired on 4 January 1999". He also noted "that the respondent lied to Canadian immigration officials in an effort to come to Canada. As a direct result of the respondent's actions, a 17-year-old boy was killed".
[6] However, the Member said he believed "that there would be undue hardship suffered by Ms. Park if the respondent were removed from Canada". As to the children, he wrote as follows:
| In considering the effect on the respondent's children, I am cognizant of the Baker1 decision, which instructs that I make my decision in a manner which is "alive, attentive and sensitive" to the best interests of the respondent's children. There is no doubt that there exists a strong emotional bond and a financial dependence on the respondent on the part of the children. I believe that they would suffer undue hardship if the respondent were removed from Canada. |
[7] The Member concluded that "it appears that the respondent and automobiles make for a deadly mix". Nevertheless, he agreed with Mr. Park's counsel to extend the respondent's stay with stringent terms and conditions related to driving prohibition for the length of the stay.
3. Analysis
[8] In his written reasons the Member states that his disposition is "on consent of the parties". The record shows that this is clearly a misapprehension of the Minister's position.
[9] The Member also failed to give adequate reasons for his reasons. He found that Mr. Park was in flagrant violation of the terms and conditions of the first stay and that he committed a further criminal offence putting the public in danger. He wrote that there would be undue hardship to Mr. Park's wife and children but did not elaborate on this finding apart from the paragraph above referred to. After noting "that the respondent and automobiles make for a deadly mix", he still went on to dismiss the Minister's motion and extended the stay of Mr. Park's deportation order.
[10] While it might be inferred that the Member found the interest of Mr. Park's family to be more important than the protection of others in society, this is not actually asserted in his reasons. He made no comment whatsoever on the Minister's submission that in this case the public interest and safety ought to take priority.
[11] In M.C.I. v. Saintelus2, Tremblay-Lamer J. held that the Appeal Division must exercise its discretion consistently with the objectives of the Immigration Act, including the protection of the safety and good order of Canada. In the instant case, the Member utterly failed to consider the possibility that Mr. Park might re-offend, specially after having held in his own decision that Mr. Park was neither credible nor trustworthy, that he had already lied to Canadian immigration officials in his effort to enter Canada and had killed a 17 year-old boy. It is beyond comprehension that the Member still put his trust in Mr. Park by granting him, after a second driving conviction, another stay and trusting him to comply with the conditions imposed.
[12] The Member's decision is patently unreasonable.
[13] The Minister's application is granted. The decision of the Appeal Division is set aside and the matter referred back for redetermination by a differently constituted panel of the Appeal Division in accordance with the law and these reasons for order.
[14] There is no serious question of general importance to be certified.
OTTAWA, Ontario
February 19, 2001
Judge
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1 Baker v. Canada, [1999] 2 S.C.R. 817.
2 F.C.T.D., September 11, 1998, IMM-1542-97.
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