Canada (Minister of Citizenship and Immigration) v. Hua, 2001 FCT 722

Date: 20010628

Docket: IMM-4225-00

Neutral Citation: 2001 FCT 722

BETWEEN:

MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

HOAN LOI HUA

Respondent

REASONS FOR ORDER

O'KEEFE J.

[1]                This is an application for judicial review brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision rendered by Colin MacAdam, a member of the Immigration and Refugee Board (Appeal Division) (hereinafter the "Tribunal"). In its decision, the Tribunal allowed the respondent's appeal of his deportation order pursuant to paragraph 70(1)(b) of the Act and ordered that the deportation order be quashed.

[2]                The applicant seeks an order quashing the above decision of the Tribunal.

Background Facts

[3]                The respondent is a 36 year old Vietnamese man and is a landed immigrant who has difficulty speaking English. The respondent entered Canada in August of 1995. His record of landing at page 44 of the applicant's record indicates that he is stateless.

[4]                The respondent lived alone in a basement apartment where he would give dance lessons to single adults. Youths from the neighbourhood would enter the apartment and watch the lessons. The respondent let these youths have free access to his apartment to listen to music or watch television. Upon returning home from work as a chef one evening in the summer of 1997, the respondent found the police arresting three youths who had been caught robbing his apartment. These were the same youths who had attended his apartment to watch television and listen to music. Shortly thereafter, these youths accused the respondent of sexually assaulting them. As it turned out, the respondent was arrested one week after the robbery.

[5]                In August of 1997, eight charges were laid against the respondent including sexual interference, sexual assault and invitation to sexual touching for the time period of May 1 to August 4, 1997. There were four alleged victims. On October 15, 1998 the respondent pleaded guilty to count 2 in relation to one victim. He received a conditional sentence for one year and probation for two years. All other charges were withdrawn by the Crown.

[6]                The respondent maintains that the allegations were made as a means for the youths to justify their robbery and that he pleaded guilty because he was advised to do so by his counsel and because he wished to save the expense.

[7]                On August 11, 1999 a section 27 report was made against the respondent describing him as a permanent resident described in paragraph 27(1)(d) of the Immigration Act. An inquiry was held on October 5, 1999 before an adjudicator to determine whether the respondent was a person described in paragraph 27(1)(d) of the Act. The adjudicator found the respondent to be such a person and issued a deportation order.

[8]                The respondent appealed the October 5, 1999 decision to the Immigration and Refugee Board (Appeal Division) pursuant to paragraph 70(1)(b) of the Act. The respondent sought a stay of the deportation order. The appeal was heard on June 7, 2000. At the hearing, a friend of the respondent testified as to his circle of friends. The victim's mother testified as well, stating that she did not think the respondent committed the offence. A recent report finding that the respondent was not a paedophile, two letters from a probation officer and the criminal narrative report were also before the Tribunal.

[9]                By decision dated July 24, 2000, after having regard to all the circumstances of the case, the Tribunal allowed the respondent's appeal and quashed the deportation order. The applicant now seeks judicial review of this decision.

Issues

[10]            The applicant lists three issues with respect to this application. They are:

1.                   Did the Tribunal exceed its jurisdiction in determining that despite the respondent having pled guilty to sexual assault, having received a criminal sentence in the Ontario Court (General Division), and having testified both before the adjudicator and the Tribunal that he had accepted responsibility for the offence, the respondent was in fact innocent of the offence?

2.                   Did the Tribunal make a perverse and capricious finding of fact, without regard to the material before it in determining that, despite a probation report of a parole officer that the respondent showed no remorse, the respondent was not a risk to anyone, including children?

3.                   Did the Tribunal err in law in failing to take into consideration the appropriate factors set out in Ribic v. Canada, I.A.B.D. No. 4 (August 20, 1985) No. T84-9623 (IAB) and Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605 (F.C.A.) in deciding whether or not to exercise its equitable jurisdiction under paragraph 70(1)(b) of the Act?

[11]            Tribunal exceeded its jurisdiction

The applicant contends that respondent's counsel conceded more than once during the hearing that the appeal was under paragraph 70(1)(b) of the Act and that since the conviction was "already registered", there were no grounds for appealing the conviction itself. The applicant argues the Tribunal exceeded its jurisdiction by going behind the conviction and in effect determining that the respondent had not committed the offence despite his guilty plea and conviction. Moreover, the victim's statements and the evidence of the parole officer was ignored by the Tribunal.

[12]            The applicant notes that although the respondent sought only a stay of the deportation order, the Tribunal instead chose to allow the appeal in all respects and to quash the order. In seeking a stay, respondent's counsel stated "Because legally, there's a guilty plea on the Record, I thought that there was no other remedy I could ask for, but for a stay, because he's - I mean, he's guilty - he's pled guilty, there is a conviction, because I didn't think that the Board would have jurisdiction to actually go behind the conviction and actually...".

[13]            The applicant argues that with respect to the factors in Ribic, supra and Chieu, supra, the Tribunal erred in law and exceeded its jurisdiction in failing to weigh the factors discussed below.

[14]            All the circumstances of the case, including the seriousness of the offence leading to deportation.

Great weight was placed upon the fact that the respondent had been in relationships with women. According to the applicant, the Tribunal used this to completely absolve the respondent of any participation in sexual assault against young boys. The criminal narrative report, the victim's statement in the supplementary police report and the two letters from the probation and parole officers were ignored by the Tribunal. The first of these letters stated that the respondent had not shown any remorse and that in the parole officer's opinion, he could not definitively say whether or not the respondent could yet present a danger to society at large. The second letter stated that the respondent attempted to shift blame for the initial offence to the young victim on more than one occasion.

[15]            The applicant submits this factor also includes "the good of society", which was ignored by the Tribunal. The Tribunal failed to make a proper analysis of the competing interests at stake as required by Ribic, supra and Chieu, supra and ignored the central factor of public safety and the good order of Canadian society.

[16]            According to the applicant, the Tribunal, upon hearing the evidence of the victim's mother, completely absolved the respondent of his crime. Even if the victim was convicted of stealing from the respondent, which was not corroborated at the hearing (the victim did not know the mother testified at the hearing), this does not negate the fact that the respondent committed the crimes and pled guilty to one charge.

[17]            The possibility of rehabilitation

The applicant offers Canada (Minister of Citizenship and Immigration) v. Saintelus, (September 11, 1998) Docket IMM-1542-97 (F.C.T.D.), where it was held that the Appeal Division, in exercising its discretion, is obliged to do so consistently with the objectives of the Act. This includes the protection, safety and good order of Canada. The applicant argues the Tribunal failed to do so in the case at bar as it did not consider whether the respondent would re-offend and whether the respondent was rehabilitated.

[18]            The length of time spent in Canada

The applicant contends little or no weight was given to the fact that the respondent has only been in Canada for five years.

[19]            The degree to which the respondent is established in Canada and the support available to him not only within the family but also within the community

The Tribunal ignored the fact that the respondent has few community ties or involvement in Canada. The respondent's testimony was inconsistent with respect to his relationships with women in Canada and he had been working for less than a year (being on welfare for the previous two years). The acquaintance who testified on his behalf did not know where he lived and had not been to his house since the beginning of the previous year.

[20]            Family in Canada

Neither the respondent's brother or sister-in-law living in Toronto attended his hearing. The respondent testified that his brother was not aware of his conviction. His remaining relatives are in Vietnam. The applicant notes the Tribunal was not persuaded that these family members would suffer undue hardship if the respondent were removed from Canada.

[21]            The degree of hardship that would be caused to the respondent if removed from Canada

The only grounds for the Tribunal's conclusion that the respondent would suffer great hardship was, according to the applicant, that he had a very hard life for five years prior to his arrival in Canada. No other details of any hardship were given.

Respondent's Submissions

[22]            The adjudicator did not make any capricious or perverse findings

The respondent agrees with the applicant that the factors set out in Ribic, supra should be considered by the IRB when deciding whether or not to exercise its equitable jurisdiction. The respondent argues the Tribunal considered all the circumstances of the case, including the conviction, the plea bargain and the psychological assessment which showed the applicant not to be a paedophile.

[23]            Good of society

The Tribunal was satisfied on the balance of probabilities that the respondent entered a guilty plea for a number of considerations, such as financial savings, resolving the matter expeditiously and excluding other allegedly spurious charges. The respondent also submits the Tribunal found his evidence credible. Moreover, the respondent argues he is not a danger to society because he is not a paedophile and in any event, he appears to be a one-time offender rather than a recidivist or repeat offender.

[24]            The respondent notes the Tribunal found that he accepted responsibility for his guilty plea and that in these circumstances it amounted to remorse. This is a fact that was carefully considered by the Tribunal and thus, this finding is not perverse.

[25]            Tribunal did not exceed its jurisdiction

The Tribunal states at page 6 of its reasons as follows

. . . while I am not in a position to go behind the conviction, I find the appellant has discharged the onus to prove why he maintains his innocence in the face of his conviction. His evidence concerning why he came to be charged with the offence is persuasive, as is his evidence concerning why he came to be convicted.

[26]            The Tribunal then found that the respondent rehabilitated himself. The respondent also submits there is no factual basis for the applicant's assertion that the Tribunal ignored the victim's statements. The victim's mother testified that she did not believe the respondent sexually assaulted her son. Her evidence was found to be "particularly credible".

[27]            The respondent also argues the Tribunal considered the parole officer's evidence as two-thirds of page 5 of its reasons is devoted to a discussion of the officer's letters. The Tribunal further elaborated with respect to these letters at page 6 of its reasons and chose not to give full weight to his evidence.

[28]            The Tribunal looked at all the circumstances of the offence

It is argued by the respondent that all the evidence was considered by the Tribunal, including the criminal narrative report referred to at page 3 of its reasons, the victim's statement which was given less weight than the mother's evidence and the letters of the probation and parole officers.

[29]            The respondent submits the applicant is asking this Court to substitute its opinion for that of the Tribunal and has failed to show that the decision was based on no evidence or that the findings of fact were capricious or perverse.

Relevant Statutory Provisions

[30]            The relevant statutory provisions of the Immigration Act state:

Analysis and Decision

[31]            The respondent's appeal to the Tribunal was brought pursuant to paragraph 70(1)(b) of the Act. Justice MacKay discussed the discretion granted to the Appeal Division in paragraph 70(1)(b) in Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299 (F.C.T.D.) at page 323:

The broad discretion granted to the Appeal Division with respect to its equitable jurisdiction is provided in paragraph 70(1)(b) of the Act which empowers the Appeal Division to determine, "having regard to all the circumstances of the case" whether or not a permanent resident should be removed from Canada. Where this discretion has been exercised in a bona fide manner, not influenced by irrelevant considerations and is not arbitrarily or illegally exercised, the Court is not entitled to interfere, even if the Court might have exercised that discretion differently had it been in the position of the Appeal Division.

[32]            In Canada (Minister of Citizenship and Immigration) v. McCormack (2000), 8 Imm. L.R. (3d) 121 (F.C.T.D.), Justice Pinard wrote as follows at page 123:

The Federal Court of Appeal held in Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605, at page 614:

The wording of paragraph 70(1)(b), viewed in total context, must be interpreted in this way. That section permits the Board to consider whether a removal order or conditional removal order made against a permanent resident should be quashed or stayed on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. The Board is instructed to consider the validity and equity of the removal order. The question is: Should this person be removed or not? . . .

. . . the IRB(AD) may, indeed must, consider broadly all the circumstances of the case in order to determine whether the deportation order was properly and equitably made. These considerations may include but would not be limited to such matters as:

- the seriousness of the offence leading to deportation;

- the possibility of rehabilitation (if a crime is involved);

- the impact of the crime (if crime is involved) on the victim;

- the remorsefulness of the applicant (if crime is involved);

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

- the presence of family in Canada and the impact on it that deportation would cause;

- efforts of the applicant to establish himself or herself in Canada, including employment and education; and,

- support available to the applicant, not only within the family but also within the community.

In the case at bar, after concluding that the respondent breached his terms and conditions, the IAD reviewed the circumstances of the case and concluded that the respondent should not be removed. In my view, such a conclusion was reasonably open to it based on the evidence adduced. The applicant pointed out a few factual errors in the decision, which, in the context of the evidence taken as a whole, I do not consider to be material errors. In such a context, considering the above applicable principles stated by the Supreme Court of Canada and by the Federal Court of Appeal, the intervention of this Court is unwarranted.

[33]            I will approach this case with this jurisprudence in mind. With respect to the alleged error of jurisdiction the standard of review is correctness.

[34]            Issue

Did the Tribunal exceed its jurisdiction in determining that despite the respondent having pled guilty to sexual assault, having received a criminal sentence in the Ontario Court (General Division), and having testified both before the adjudicator and the Tribunal that he had accepted responsibility for the offence, the respondent was in fact innocent of the offence?

The applicant submits that the Tribunal exceeded its jurisdiction by going behind the guilty plea which resulted in the criminal conviction and sentence of the respondent. There is no doubt that a criminal conviction is admissible in a subsequent civil matter such as the present case. The conviction however, can be explained away by the accused at his civil hearing or its effect lessened. In Cromarty v. Monteith (1957), 8 D.L.R. (2d) 112 (B.C.S.C.) at page 114, Wilson J. stated:

Wigmore on Evidence, 3rd ed., art. 1066 says: "An accused's pleading in a criminal case, offered in a subsequent civil case, would seem to be proper."

I think that Mr. Phillipps has correctly stated the law. The plea of guilty is receivable in evidence as an admission against interest but it is not conclusive. It must be regarded as would any other admission by a litigant, and evidence of the circumstances under which it was made must be received in order to decide upon the weight to be attached to it. The fact that the admission has been made in a judicial proceeding is a factor to be considered, but any presumption which might arise from this circumstance might be rebutted by evidence, for instance, that the plea had been induced by fraud or threats. The defendant may also, I think, be heard in a subsequent civil trial, to say that the admission was made under a misapprehension of law (See Roscoe's Evidence in Civil Actions, 20th et., p. 65, and Newton v. Liddiard (1848), 12 Q.B. 925, 116 E.R. 1117, therein cited). But I think that once the admission is placed on record, it is incumbent upon the litigant to prove the existence of circumstances which detract from its apparent effect.

The respondent testified before the Tribunal that he pleaded guilty to one charge because of his then lawyer's advice that he would not win such a case and that he could avoid a jail term by doing so. He also testified that he had difficulty in having his lawyer understand him at the time the criminal charges were laid. As well, at the hearing before the Tribunal, the mother of the victim testified that she did not believe that the assault took place. The mother of the victim did not know the respondent very well. The Tribunal member, Colin MacAdam, accepted that although he could not go behind the criminal conviction, the evidence cited above along with the psychiatrist's finding that the respondent was not a paedophile had persuaded him that the respondent had "discharged the onus to prove why he maintains his innocence in the face of his conviction". This, in my opinion, is a correct finding, considering that the Tribunal found all of the above testimony to be credible. Therefore, the Tribunal did not exceed its jurisdiction.

[35]            Issue 2

Did the Tribunal make a perverse and capricious finding of fact, without regard to the material before it in determining that, despite a probation report of a parole officer that the respondent showed no remorse, the respondent was not a risk to anyone, including children?

Firstly, the applicant submits that the Tribunal made a perverse and capricious finding of fact by holding that the respondent was not a risk to anyone, despite the parole officer's report that the respondent showed no remorse. Mr. MacAdam thoroughly analyzed the reports of the probation officer in his decision. He noted that the meetings with the officer lasted 10 to 15 minutes and focussed on the respondent's employment. As a result, the officer's remark that the respondent is a "social isolate" cannot be supported. Tribunal member MacAdam also discussed the report of the psychiatrist which found the respondent not to be a paedophile and stated that he placed "full weight" on this finding and less weight on the probation officer's negative inference concerning the respondent's lack of remorse. The Tribunal member noted he was not satisfied that the probation officer had a full understanding of the respondent's version of his conviction, as explained by the respondent at the Tribunal hearing. I am not persuaded that the Tribunal made a perverse and capricious finding of fact as alleged by the applicant.

[36]            Issue 3

Did the Tribunal err in law in failing to take into consideration the appropriate factors set out in Ribic v. Canada, [I.A.B.D. 4] (August 20, 1985) No. T84-9623 (IAB)and Chieu v. Canada (Minister of Citizenship and Immigration), [1999] 1 F.C. 605 (F.C.A.) in deciding whether or not to exercise its equitable jurisdiction under paragraph 70(1)(b) of the Act?

I have reviewed the decision of the Tribunal and I am of the view that the Tribunal did take into consideration appropriate factors listed in Ribic, supra. The relevant factors were listed in Chieu, supra. For example, the Tribunal considered the seriousness of the offence, the possibility of rehabilitation, the remorsefulness of the respondent and the other factors listed in the case law to the extent that they are applicable to this case. The Tribunal accepted the respondent's explanation of his guilty plea. I am of the opinion that the Tribunal did not make an error of law in this respect.

[37]            The respondent has asked for solicitor and client costs to be awarded to him. I am not prepared to award solicitor and client costs to the respondent.

[38]            The parties shall have one week from the date of this decision to submit a serious question of general importance, if any, for my consideration.

                                                                               "John A. O'Keefe"                

                                                                                               J.F.C.C.                     

Halifax, Nova Scotia

June 28, 2001

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-4225-00              

STYLE OF CAUSE:MINISTER OF CITIZENSHIP AND

IMMIGRATION

- and -

HOAN LOI HUA

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   TUESDAY, APRIL 24, 2001

REASONS FOR ORDER OF O'KEEFE J.

DATED:                     TUESDAY, JUNE 19, 2001

APPEARANCES:

Ms. Claire Le Riche

FOR APPLICANT

Mr. Cecil Rotenberg, Q.C.

FOR RESPONDENT

SOLICITORS OF RECORD:

Department of Justice

Toronto Regional Office

2 First Canadian Place

Suite 3400, Exchange Tower, Box 36

Toronto, Ontario

M5X 1K6

FOR APPLICANT

Mr. Cecil L. Rotenberg, Q.C.

255 Duncan Mill Road

Suite 808

Don Mills, Ontario

M3B 3H9

FOR RESPONDENT

                   FEDERAL COURT OF CANADA

                                TRIAL DIVISION

Date: 20010619

Docket: IMM-4225-00

Neutral Citation: 2001 FCT _____

BETWEEN:

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Applicant

- and -

HOAN LOI HUA

Respondent

                          REASONS FOR ORDER