Date: 20010829
Docket: IMM-5530-00
Neutral Citation: 2001 FCT 967
BETWEEN:
AMOS LOUIS
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS OF ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review from a decision by the Appeal Division of the Immigration and Refugee Board (hereinafter "the Appeal Division") on October 18, 2000 ordering that a five-year stay of execution of a removal order applicable to the plaintiff since March 29, 1999 be continued in force for another year. The Appeal Division imposed new conditions on the plaintiff.
FACTS
[2] The plaintiff was born in Haiti on July 23, 1970 and obtained landing in Canada on October 3, 1991. He has been married to Yvette Borno since August 20, 1990 and there are three children of the union. The plaintiff also has three other children.
[3] In 1993 the plaintiff separated from his wife when the latter learned that the plaintiff had children with another woman in Haiti and intended to sponsor them.
[4] He went to live with a friend and worked in several jobs. In June 1997 the plaintiff was arrested for possession of 30 rocks of crack with a view to reselling them to make money. He was convicted and sentenced to two years' imprisonment.
[5] On January 17, 1998 he was paroled on condition that he reside in a halfway house for six months.
[6] Since his release the plaintiff has returned to living with his wife and children.
[7] On March 11, 1998 a deportation order was made against the plaintiff. The plaintiff appealed this order and on March 29, 1999 the Appeal Division ordered a stay of execution of the removal order and directed that the plaintiff be authorized to remain in Canada subject to certain conditions.
[8] On October 10, 2000 the Appeal Division undertook to review the plaintiff's file.
APPEAL DIVISION'S DECISION
[9] The defendant argued before the Appeal Division that the plaintiff had not made all possible efforts to obtain employment and had received some form of assistance from social welfare since the order was made in March 1999.
[10] The plaintiff, for his part, argued that he had observed all the conditions and in particular, since February 2000 he and his wife had received no assistance from welfare.
[11] The plaintiff further argued that he was involved in a work-related accident, or at least suffered injury from an automobile accident, and he filed a claim with the Société de l'assurance automobile du Québec ("SAAQ"), which was denied in 1999.
[12] The Appeal Division concluded that in view of the file as a whole it would be irresponsible for it to terminate the stay and allow the appeal. The Appeal Division noted that the acts the plaintiff was alleged to have committed had serious consequences for society, but also noted that since at least February 2000 the plaintiff had made efforts to receive no further social assistance, which even required his wife to go to work after giving up her nursing studies, at least for a time.
[13] The Appeal Division upheld the decision made in March 1999 on the same conditions, and added the following condition:
[TRANSLATION]
9. Present evidence of his claim to the SAAQ (decision and filing of appeal to Quebec administrative tribunal) and submit medical follow-up and tax return (assessment notice) for next review.
POINTS AT ISSUE
[14] 1- Did the Appeal Division take unrelated factors into account in arriving at its conclusion?
2- Is the Appeal Division's decision unreasonable?
ANALYSIS
1- Did the Appeal Division take unrelated factors into account in arriving at its conclusion?
[15] Section 74(2) of the Immigration Act provides:
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(2) Where the Appeal Division disposes of an appeal by directing that execution of a removal order or conditional removal order be stayed, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Appeal Division may determine and the Appeal Division shall review the case from time to time as it considers necessary or advisable.
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(2) En cas de sursis d'exécution de la mesure de renvoi ou de renvoi conditionnel, l'appelant est autorisé à entrer ou à demeurer au Canada aux éventuelles conditions fixées par la section d'appel. Celle-ci réexamine le cas en tant que de besoin.
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[16] Section 74(3) mentions:
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(3) Where the Appeal Division has disposed of an appeal by directing that execution of a removal order or conditional removal order be stayed, the Appeal Division may, at any time,
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(3) Dans le cas visé au paragraphe (2), la section d'appel peut, à tout moment:
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(a) amend any terms and conditions imposed under subsection (2) or impose new terms and conditions; or
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a) modifier les conditions imposées ou en imposer de nouvelles;
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(b) cancel its direction staying the execution of the order and
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b) annuler son ordre de surseoir à l'exécution de la mesure, et parallèlement:
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(i) dismiss the appeal and direct that the order be executed as soon as reasonably practicable, or
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(i) soit rejeter l'appel et ordonner l'exécution dès que les circonstances le permettent,
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(ii) allow the appeal and take any other action that it might have taken pursuant to subsection (1).
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(ii) soit procéder conformément au paragraphe (1).
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[17] The plaintiff argued that in the reasons for its decision the Appeal Division had added an unrelated ground to the objection made to it by the defendant, noting that the acts with which the plaintiff was charged, being found in possession of 30 rocks of crack, were acts with serious consequences for society.
[18] The plaintiff pointed out that it was neither shown in evidence nor proven that the plaintiff had contravened condition No. 5 of the order, which prohibited him from having drugs in his possession, since the only objection made by the defendant, in opposing the lifting of the stay and cancellation of the removal order, related solely to condition No. 3 of the order, namely relying on social assistance.
[19] The plaintiff maintained that this ground accepted by the Appeal Division was entirely arbitrary and wrongful.
[20] In my opinion, when the Appeal Division re-examines a case as in the case at bar the Appeal Division must consider all the circumstances of the matter, since it has the power to alter the conditions imposed earlier and allow or dismiss a plaintiff's appeal. To do this, the Appeal Division must take into account all relevant factors, including the acts alleged against the plaintiff.
[21] The fact that new acts were alleged against the plaintiff does not mean the Appeal Division should not consider the other acts which were alleged against him when a stay was granted. The Appeal Division, re-examining a case, should not only consider the new facts, but should consider them in light of the circumstances of the case, which includes the facts that were before the Appeal Division which granted the stay. Of course, on the basis of the same facts and if no new facts have appeared, it may be that an Appeal Division is not justified in dismissing an appeal when the preceding Appeal Division granted a stay. However, where the allowing of an appeal is in question as in the case at bar, the Appeal Division is justified in taking into account all the circumstances of the case, that is, the old and the new circumstances.
[22] In Martin v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1295 (F.C.T.D.), McKay J. indicated, regarding the factors which the Appeal Division in that case took into account in quashing a stay given some years earlier:
In light of the factors here considered by the tribunal, including all of the applicant's commendable efforts at rehabilitation following his release on full parole, but also his past criminal record with the most serious crimes committed following the stay of the removal order in the mid-1980s by the Appeal Division's predecessor, and his history of serious injury, its adverse effects and the fact that his criminal bent was deemed largely attributable to personality traits, all of these factors as assessed by the tribunal do not demonstrate that its conclusion, a matter of judgment, can be characterized as unreasonable.
[23] Consideration of the seriousness of the acts the plaintiff is alleged to have committed is also consistent with the Federal Court of Appeal's judgment in Chieu v. Canada (M.C.I.), [1999] 1 F.C. 605 (F.C.A.), where it was noted that the Appeal Division had to consider the particular circumstances of a case in order to determine whether the deportation order was properly and equitably made, and added:
[18] 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.
2- Is the Appeal Division's decision reasonable?
[24] The plaintiff further noted that the evidence at the hearing showed that the automobile accident was the cause of the reduction in the couple's income and that from February 2000 onwards the plaintiff had not applied for social assistance because, despite his health, he decided to support his family from his own resources and with the help of his wife.
[25] The plaintiff maintained, therefore, that it was not reasonable for the Appeal Division to blame him for a situation for which he was not responsible and which he tried to remedy quickly at the risk of endangering his health.
[26] The plaintiff alleged that he complied with the tribunal's order of March 29, 1998 completely and that the reasons on which the Appeal Division based its decision were arbitrary and wrongful because they were not supported by the evidence presented at the hearing.
[27] Contrary to the plaintiff's argument, I do not feel that the Appeal Division erred in considering that the plaintiff had received social assistance and deciding not to allow the plaintiff's appeal at this time. The Appeal Division could consider the fact that the plaintiff had received social assistance. The Appeal Division also took into account the fact that the plaintiff suffered a work-related accident, or at least suffered injury from an automobile accident. The Appeal Division's decision was not based solely on the fact that the plaintiff received social assistance. It was taken considering the seriousness of the plaintiff's actions, but also noting that the plaintiff had made efforts to get off social assistance since February 2000.
[28] In my view, the plaintiff did not succeed in establishing that the Appeal Division's decision was unreasonable based on the evidence and the Appeal Division exercised its discretion in good faith, without being affected by any unrelated considerations and without acting in any arbitrary or illegal manner.
[29] This application for judicial review is accordingly dismissed.
[30] None of the counsel suggested a question for certification.
OTTAWA, ONTARIO
August 29, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-5530-00
STYLE OF CAUSE: AMOS LOUIS v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 31, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: August 29, 2001
APPEARANCES:
Grégoire M. Bijimine FOR THE PLAINTIFF
Isabelle Brochu FOR THE DEFENDANT
SOLICITORS OF RECORD:
Grégoire M. Bijimine FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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