Date: 20000720
Docket: IMM-3090-00
OTTAWA, ONTARIO this 20th day of July 2000.
BEFORE: The Honourable Mr. Justice Pelletier
BETWEEN:
TRISTAN JOSE OLASO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is another case where a long time resident of Canada faces deportation to a country with whom he has no connection. The cause of the deportation is his criminality. The cause of the problem is his failure to become a citizen when he had the opportunity.
[2] There is an Order that the applicant, a young man who has lived in Canada since he was 9 years old, be deported to the Philippines, a place with which his only connection is the fact of his birth there 22 years ago. He is being deported because of criminality. He has a record as a young offender. He was charged with attempted murder following a drug deal gone bad in which 2 persons were shot. The police report concluded that the applicant shot one of the victims. He denies this but admits he was carrying a gun and pistol whipped one of the victims. He pled guilty to aggravated assault and two counts of robbery. He spent six months in pre-trial custody. He was sentenced to incarceration for two years less a day and two years probation. While serving his sentence, he was convicted of possession of marijuana.
[3] As a result of the applicant's conviction, an inquiry was held pursuant to the Immigration Act, R.S.C. 1985 c. I-2 ("Act") on June 2, 1999. At the conclusion of that inquiry, the applicant was ordered deported. An appeal from that Order was taken pursuant to section 70 (1) b) of the Act. The appeal was heard March 21, 2000 and the decision was rendered May 26, 2000. The Immigration and Refugee Board, Appeal Division ("IAD") dismissed the appeal. The applicant has launched an application for judicial review of the IAD's decision but, in the meantime, the applicant has been given a Direction to Report for deportation to the Philippines on July 22, 2000. This application is for a stay of the execution of the Deportation Order pending the hearing of the application for judicial review.
[4] The IAD set out the various factors which it considered in coming to its decision. It referred to the factors set out in Chieu v. M.C.I. [1999] 1 F.C. 605 (F.C.A.) which provides as follows:
The circumstances which the Board must consider in order to determine whether the deportation order was properly and equitably made include the following matters: the seriousness of the offence leading to the deportation; the possibility of rehabilitation; the impact of the crime on the victim; the remorsefulness of the applicant; 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; support available to the applicant, not only within the family but also within the community.
[5] The IAD found that the offences of which the applicant was convicted were serious, violent, and involved the use of a gun. The applicant expressed remorse but the IAD found that it was more related to the possibility of being charged with murder than with compassion for the victim. The IAD reviewed the applicant's criminal history and noted that there were several incidents in which guns were on the scene. It also noted that the applicant fled the scene and avoided apprehension for three weeks.
[6] The IAD took note of the fact that the applicant's entire family was in Canada and that he had no family left in the Philippines. His family is very supportive of him. The IAD found that family members will miss him greatly if he is deported, and that he will miss them. He does not speak the language of the Philippines.
[7] Following release from prison, the applicant obtained employment which he maintained for 3 months until he was required to resign and have treatment of a knee condition. He had two operations for that condition and is still receiving physiotherapy, which may not be available to him in the Philippines.
[8] While in prison, the applicant underwent an anger management program and signed up for other programs for which there was a waiting list. He expressed an interest in pursuing his education and took steps in that regard. However, the IAD commented on the fact that the applicant was convicted of possession of marijuana while in custody, after he had been put on notice that his immigration status was in question. Overall, the IAD found that his zeal for rehabilitation was not what one would expect from a person in his precarious position.
[9] The IAD weighed the various factors and concluded that, on the basis of the likelihood of the applicant re-offending, the appeal should be dismissed. The IAD expressed its conclusion as follows:
The panel has weighed the factors for and against the appellant. In his favour are the immense dislocation to both the appellant and to his family, if he were to be deported, and his recent efforts at employment and education.
However, many factors are also against the appellant. These include the probability that the appellant will re-offend, and that the future transgressions may be violent, that weapons were involved in his prior offences, that the appellant admitted pistol-whipping one of the victims, that he fled from the scene of the crime, and that he continued to commit crimes even while incarcerated. After having reviewed all of the evidence, both for and against the appellant's appeal, and giving particular weight to the probability that the appellant will re-offend in future, the panel is of the view that the appeal should be dismissed.
[10] The applicant challenges this conclusion saying that some of the conclusions are not founded on the evidence. In the absence of a transcript or affidavit evidence to the contrary, the Court will presume that the IAD's reasons reflect the evidence which was led before it. The more serious challenge to the decision is that the IAD did not consider the positive elements of the evidence before it and gave undue weight to its assessment that the applicant was likely to re-offend. The serious issue to be argued in the application for judicial review is whether the IAD misapplied and misconstrued the test to be applied in an appeal under section 70 of the Act in that it relied on one factor alone in dismissing the appeal.
[11] The test for the granting of a stay of execution is well known. The applicant must show that there is a serious issue to be tried in the underlying judicial review application, that he/she will suffer irreparable harm if the stay is not granted and that the balance of convenience favours the granting of a stay. The serious issue in this case is whether the IAD decided the appeal on the basis of one factor to the exclusion of all others, or whether it considered a variety of factors in deciding to dismiss the appeal. This is not a question as to the weight to be given to evidence since the facts are not disputed. The issue is whether the IAD considered all relevant factors in deciding to make a Deportation Order against the applicant or whether it relied solely upon the applicant's likelihood of re-offending.
[12] The leading case on deportation of long-time residents for criminality is Canepa v. Canada (Minister of Employment and Immigration) [1992] F.C.J. No. 512. In that case the Federal Court of Appeal decided that deportation of long-time permanent residents to their country of citizenship to which they no longer had a connection did not offend sections 7 and 12 of the Charter. The Court discussed the process to be undertaken by the IAD in dealing with cases under subsection 70(1)b) of the Act:
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 par. 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. Both the law and the treatment received under it in my view meet the standards of s. 12.
[13] It is clear from this extract that the IAD is entitled to take the risk of re-offending into account in disposing of an appeal under subsection 70(1) b). It must also consider every extenuating factor "that can be adduced in favour of the deportee".
[14] In this case the Board did refer to and consider various factors which were favourable to the applicant's position. In the end, it decided that the applicant was likely to re-offend and that he should therefore be deported. The IAD clearly was concerned about the protection of Canadian society, a consideration which it is entitled to take into account.
[15] It does not appear that an examination of the standard of review of the decisions of the IAD has been conducted since the decisions in Pushpanathan and Baker. The position most favourable to the applicant would be that the standard is correctness but given that one is dealing with a discretionary decision of a statutory panel, one can say with confidence that the standard of review is not correctness. Of the remaining choices, the position most favourable to the applicant is the standard of reasonableness, which I am prepared to assume is the case for purposes of this analysis.
[16] If the standard of review is reasonableness, in order to raise a serious issue, the applicant must argue that the decision is something other than reasonable. If it is reasonable, there is no issue since the judge hearing the application must defer to a reasonable decision, even if he/she disagrees with it. In order to raise a serious issue, the applicant must raise a credible possibility that the decision is unreasonable. If the applicant raises a credible prospect that the Tribunal's conclusion will be found to bear no rational relationship to the evidence and the criteria to be applied to it, he has shown a serious issue to be tried. If the argument made by an applicant does not raise a credible possibility that the decision will be found to be unreasonable, it is "frivolous and vexatious" and does not raise a serious issue to be tried.
[17] In my view, the applicant has not succeeded in raising such an issue. On its face, the decision considers various factors in relation to the applicant and his circumstances. It identifies the positive as well as the negative. It chooses to give more weight to the risk of re-offending than to the dislocation to be caused to the applicant and his family. While others may have come to a different conclusion, there is no credible argument that the decision bears no rational relationship to the evidence or the criteria to be applied to it. The applicant's argument is that the IAD's reliance on the likelihood of re-offending to justify its decision means that this factor was the only one considered. This confuses considering all the factors with giving them all equal weight. It is for the IAD to assign weights to the various factors based upon the case which is before it. There is no credible argument that it was unreasonable for it to do as it did. Others may have a different view but that is not evidence of unreasonableness.
[18] Because the tri-partite test is conjunctive, the failure to satisfy any one criterion is fatal to the application.
[19] If I am wrong about the question of serious issue, I find that the applicant will not be exposed to irreparable harm as a result of his deportation. It is true that it will be difficult for both him and his family but mere family dislocation has consistently been held not to constitute irreparable harm. There is no evidence that the applicant's requirements for physiotherapy could not be met in the Philippines. He will not have the support systems which he has in Canada but as the IAD pointed out, the presence of those support systems did not prevent him from engaging in violent crime in the first place.
[20] The case of Calabrese v. M.C.I. [1996] F.C.J. No. 723 was brought to the attention of the parties by the Court. In that case Gibson J. found irreparable harm in the deportation to Italy of an individual whose criminal record was worse than that of the present applicant's. The difference between Calabrese and the present case is that in Calabrese, the applicant was engaged in a long term relationship which had produced one child, and another was expected. He was the financial support of his family. Those factors are absent in this case.
ORDER
THIS COURT HEREBY ORDERS: that for the reasons set out above, the application for a stay is dismissed.
"J.D. Denis Pelletier"
J.F.C.C.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3090-00
STYLE OF CAUSE: TRISTAN JOSE OLASO v. MCI
HEARD BY TELECONFERENCE AT OTTAWA AND TORONTO DATE OF HEARING: Monday, July 17, 2000
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PELLETIER DATED: July 20, 2000
APPEARANCES
Mr. Rocco GalatiFOR THE APPLICANT
Ms. Ann-Margaret OberstFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
GALATI, RODRIGUES & ASSOCIATES FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
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