Date: 2010029
Docket: IMM-4194-09
Citation: 2010
FC 334
Ottawa, Ontario, March 29, 2010
Present: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
LABLU
HUSSAIN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) against a
decision rendered July 29, 2009, by the Immigration Appeal Division (the panel)
of the Immigration and Refugee Board, dismissing the appeal made by Lablu
Hussain (the applicant) on humanitarian and compassionate grounds.
THE FACTS
[2]
The applicant is a citizen of Bangladesh. He arrived in Canada in 1997 and has been a permanent
resident since 2000. Shortly after arriving in Canada, he married a Canadian citizen. The couple has two daughters, both
born in Canada: the oldest in 1998
and the youngest in 2004.
[3]
In 2007 and 2008, the applicant pleaded guilty
to a series of fraud charges. The first involved two fraudulent credit card
applications, made by a friend in the applicant’s name in exchange for $1000. The
second involved a payment made by the applicant with a false credit card, which
he said belonged to the same friend, at a gas station in Rigaud during a trip
to Ottawa, for which the applicant’s friend had offered him $200.
[4]
The applicant pleaded guilty to the first
offence on September 5, 2007, and was sentenced to 30 days in prison.
He had already pleaded guilty to the second offence on March 30 of that
year. He has since repaid the amount owed and claims that he is no longer in
contact with the friend. He was sentenced to pay a fine and subjected to a
probation order prohibiting him from returning to the gas station where he
committed the fraud and from possessing a credit card.
[5]
After these convictions, a report was prepared
against the applicant pursuant to subsection 44(1) of the Act. The
Immigration Division, to which the report was referred for investigation, found
that the applicant was inadmissible for serious criminality under
subsection 36(1) of the Act and issued a removal order against him. The
applicant appealed this decision on humanitarian and compassionate grounds
under paragraph 67(1)(c) of the Act. The dismissal of that appeal
is the subject of this judicial review.
[6]
In the meantime, the applicant continued to have
run-ins with the law. On June 23, 2008,
he pleaded guilty to 17 counts of fraud for depositing not-sufficient-funds
cheques dated July 14, 2005.
[7]
In February 2009, he received a suspended
sentence of 730 days (2 years) for a conviction under the Criminal
Code and an $850 fine. At the hearing, the applicant claimed to have
forgotten the reasons for the conviction. He stated that he had paid between
$300 and $400 of his fine. The panel gave him two weeks to adduce evidence of
this payment, but he did not do so.
[8]
The applicant was also charged with breach of
probation under paragraph 733.1(b) of the Criminal Code for
fraudulent use of a credit card on August 9, 2008. The terms of his
probation order prohibited him from using a credit card. Following this
incident, new fraud charges were brought against him on November 3, 2008,
and the case is pending.
THE IAD DECISION
[9]
The panel noted that the applicant was not
challenging the legal validity of his removal order. The applicant based his
appeal solely on humanitarian and compassionate considerations. The panel
therefore applied the factors from Ribic v. Canada (Minister of Employment and
Immigration), [1985] I.A.B.D. No. 4 (QL), cited
with approval by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and
Immigration), 2002 CSC 3, [2002] 1 S.C.R. 84.
[10]
With respect to the seriousness of the offences
resulting in the removal order and the applicant’s chances of rehabilitation,
the panel noted that he was blasé about the offences he had committed and that
he showed no remorse, instead blaming his actions on others and on the poor
economy. Although the applicant said that he wanted to abstain from criminal
activity because he feared that his wife would ask him for a divorce, the panel
concluded that this fear had not prevented him from reoffending. The applicant
also admitted that he had not been honest with his wife about his problems,
which, according to the panel, weakened his credibility and limited his wife’s
ability to assist him in his rehabilitation. The panel found that the applicant
had committed the same offences repeatedly and had breached the conditions of
his probation. The panel therefore had no reason to believe that he would
respect any conditions that it might impose.
[11]
The panel considered the fact that the applicant
was relatively established in Canada, having lived here for the past 12 years and having been
employed for all that time, except for 2005 to May 2008. Since
May 2008, he has been working as a shipper for GTI
inc. However, he did not file any notices of assessment or tax returns as
evidence during the hearing. The panel was therefore not convinced that the
applicant had made legitimate earnings or that he had paid income tax on it. It
gave him an extension to allow him to adduce evidence of his salary and paid
income tax, but he did not do so.
[12]
With respect to his family situation, the panel
noted that his parents and five of his siblings live in Bangladesh, while his
wife’s family lives in Canada.
The applicant also has a sister in England and a younger bother in the United States. He is in touch with his siblings and communicates daily with his
family in Bangladesh, as well
as providing them with financial support.
[13]
Finally, the panel recognized that the applicant
would face significant hardship were he to return to Bangladesh, as he would be separated from his wife and children. The panel also
emphasized that it would be in the best interests of the children for the
applicant to remain in Canada.
However, there is no reason to believe that they could not visit him in Bangladesh or even live there if they chose
to.
[14]
The panel concluded that although the applicant
was then working and claimed to want to stop offending, not enough time had
passed to determine that he would not reoffend, particularly if he were to find
himself unemployed once again. The applicant’s testimony was unreliable, and he
did not perform his undertakings to the panel, casting doubt on his ability to
respect the conditions of a stay. In short, the applicant had not established
sufficient humanitarian and compassionate considerations to warrant special
relief. Despite the Minister’s recommendation that he be granted a three-year
stay, the panel dismissed the applicant’s appeal.
THE ISSUES
1)
Did the panel err in drawing a negative
inference from the applicant’s failure to adduce additional documents?
2)
Did the panel err in disregarding the
recommendation by the Minister’s representative to stay the removal order?
3)
Did the panel err in concluding that there were
insufficient humanitarian and compassionate considerations to justify allowing
the applicant’s appeal?
THE STANDARD OF REVIEW
[15]
The first two issues raised by the applicant
involve the fairness of the IAD proceedings. In the words of the Supreme Court
in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, at para. 100, “[i]t is for
the courts, not the Minister, to provide the legal answer to procedural
fairness questions.” Therefore, the Court owes no deference to the panel’s
decision on these issues.
[16]
However, the merits of the panel’s decision are
subject to judicial review on a standard of reasonableness (Canada (Citizenship and Immigration)
v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
ANALYSIS
Did the
panel err in drawing a negative inference from the applicant’s failure to adduce
additional documents?
[17]
The applicant criticizes the panel for finding
that he had failed to adduce the additional documents that his counsel had
undertaken during the hearing to file within the two weeks that followed, and
for drawing a negative inference about his credibility therefrom. It was his
counsel who undertook to provide the documents to the panel. The panel should
not have held against him a failure to respect an undertaking that was not his
own.
[18]
The Minister submits that counsel acts on the
applicant’s behalf and represents his alter ego in judicial proceedings.
It is therefore not appropriate to separate counsel from client in the manner
proposed by the applicant. I agree.
[19]
In Dukuzumuremyi v. Canada (Minister of Citizenship and Immigration), 2006 FC 278, at para. 19, Mr. Justice Martineau wrote
the following:
In the great
majority of cases, we do not distinguish the facts and acts of counsel from
those of the client. Counsel is his client's agent and, as severe as it may
seem, if the client retains the services of mediocre counsel (which, in
passing, was not established here by the applicant), he must suffer the
consequences. However, in exceptional cases, counsel's incompetence may raise a
question of natural justice. The incompetence and the alleged prejudice must
therefore be clearly established.
In this case,
there is no reason to believe that counsel representing the applicant before
the IAD was incompetent. Moreover, if the failure to file the documents
required by the panel had been due to circumstances beyond the applicant’s
control, this would be an issue of procedural fairness, and he could have adduced
evidence to that effect, for instance, an affidavit from his former counsel.
However, despite the hypotheses suggested by his counsel during the hearing,
there is no evidence indicating that he is not responsible for this omission.
Did the panel err in disregarding the
recommendation by the Minister’s representative to stay the removal order?
[20]
The applicant notes that, at the IAD hearing,
the Minister’s representative recommended that he be granted a three-year stay
of his removal order. He suggested that the panel could not disregard the
Minister’s recommendation, at least not without notification of its intention
to do so.
[21]
As the Minister pointed out, a recommendation
from its representative does not limit the exercise of the panel’s discretion.
When the parties agree on a joint recommendation, the panel must take this into
consideration and cannot disregard it lightly or without providing reasons (Malfeo
v. Canada
(Minister of Citizenship and Immigration), 2010 FC
193). In my view, that is not what happened here. The panel explained precisely
why it concluded that a stay would not be appropriate. It held that because of
the applicant’s systematic breaches of the conditions imposed by various tribunals,
it could not believe that he would respect any conditions that it might impose
on the stay. This explanation is transparent and intelligible, and the panel
provided sufficient reasons for its decision to disregard the recommendation provided.
Did the panel
err in concluding that there were insufficient humanitarian and compassionate
considerations to justify allowing the applicant’s appeal?
[22]
The applicant submits that the panel erred in
refusing to allow his appeal. More specifically, the panel was wrong to hold
him accountable for offences for which he has not yet been found guilty,
speculating on his risk of reoffending and disregarding the best interests of
his children.
[23]
The applicant notes that the panel took into
account events that were not mentioned in the report drafted pursuant to
section 44 of the Act that gave rise to his inadmissibility. He also specifies
that he has not been convicted of some of the offences cited by the panel, as
the proceedings are pending. He submits that he must be presumed innocent until
proven guilty (pursuant to paragraph 11(d) of the Canadian
Charter of Rights and Freedoms).
[24]
The applicant also submits that the panel erred
in basing its decision on his risk of reoffending. First, if a stay were
granted it would automatically be revoked under subsection 68(4) of the
Act if he were convicted of another offence referred to in subsection 36(1).
As Parliament has opted to manage the risk of reoffending in this manner, it is
not open to the panel to refuse the stay on the basis of this factor.
[25]
Second, the panel has failed to respect the Act
and Canada’s international
obligations by disregarding the best interests of the applicant’s children. It
is not enough for the panel to recognize that it would be in the children’s best
interests that the applicant remain in Canada. Having recognized the children’s best interests, the panel had to
explain how these were offset by the other circumstances of the case. The panel
also erred in concluding that the applicant’s children could visit him in Bangladesh in the absence of evidence that
they would be permitted to do so. Moreover, the panel should have questioned
the applicant’s wife about the hardship that she and her children would face if
he were returned.
[26]
The Minister submits that the IAD appeal is a de novo proceeding and that the panel
must not limit its analysis to events preceding the Immigration Division’s
decision, rendered almost a year earlier. The panel may consider all of the
evidence, including that arising after the decision by the Immigration Division
and other evidence not before the Immigration Division. As the applicant is
inadmissible on grounds of serious criminality under paragraph 36(1)(a)
of the Act, his criminal activity is highly relevant to this case.
[27]
Moreover, the panel’s conclusion regarding the
applicant’s risk of reoffending is reasonable. The panel did not find the
applicant’s testimony credible. Although he was working and claimed to want to
abstain from criminal activity, the panel noted that his crimes were recent,
that he had breached the conditions of his probation order, and that there was
no reason to believe that he would respect any conditions that it might impose.
[28]
Finally, with respect to the best interests of
the applicant’s children, the Minister submits that it is open to the panel to
conclude that though a parent’s presence is generally in a child’s best
interests, it is not determinative for the purpose of granting relief based on
humanitarian and compassionate considerations. In this case, the panel
considered the situation of the applicant’s children but concluded that this
factor was not determinative and did not justify granting the applicant a
discretionary stay.
[29]
For the following reasons, I do not find any of
the applicant’s arguments convincing.
[30]
First, as the Minister points out, an appeal to
the Immigration Appeal Division is an appeal de novo. The IAD may therefore consider all the evidence that is adduced
before it (see, for example, Somodi v. Canada (Minister of Citizenship and Immigration), 2008 FC 1356, [2009] 4 F.C.R. 91 at para. 37, and the
authorities cited therein). The applicant’s criminal activity is a relevant
factor. Therefore, it was open to the panel to question the applicant on the
facts that gave rise to the charges against him and to draw a negative
inference from his vague or evasive answers. In so doing, the panel did not
deprive the applicant of his right to be presumed innocent. I note that
according to section 11 of the Charter, this right applies only to “any
person charged with an offence”, not to a person subject to a removal order.
[31]
Next, the panel did not act unreasonably in
taking into account the applicant’s risk of reoffending. Rehabilitation is one
of the factors recognized in Ribic, supra, as being relevant to a
decision on special relief from a removal order. An assessment of the risk of
reoffending must underlie the analysis of this factor, either explicitly or implicitly.
Parliament’s choice of safeguard in subsection 68(4) of the Act does not render
this factor any less relevant. It is important to recognize, however, that any
assessment of future risk involves a degree of uncertainty; it may be
reasonable at the time it is performed, but later be proved incorrect.
[32]
Finally, I am of the view that the panel gave
appropriate consideration to the best interests of the applicant’s children. It
would be in their best interests for their father to remain in Canada. However, it decided that other
factors were more important, specifically, the risk represented by the
applicant’s history of criminal activity, his lack of remorse, and the
unlikelihood of his rehabilitation.
[33]
It was well established by the Federal Court of
Appeal in Legault v. Canada (Minister of Citizenship and Immigration),
2002 FCA 125, [2002] 4 F.C. 358, that the best interests of children are not
a determinative factor and that as long as the panel takes them into
account, it may decide that other factors are more important. It is for the
panel to weigh that factor in light of the circumstances of each case.
[34]
Although the panel should not have commented, in
the absence of evidence, on the possibility of the applicant’s children
visiting him in Bangladesh, I
do not consider this error to be determinative. In Law Society of New Brunswick
v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 56, the Supreme
Court noted that for an administrative decision to be reasonable, “[t]his does
not mean that every element of the reasoning given must independently pass a
test for reasonableness. . . . Moreover, a reviewing court
should not seize on one or more mistakes or elements of the decision which do
not affect the decision as a whole.” That is the case here.
[35]
For all these reasons, the
application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed.
“Danièle Tremblay-Lamer”
Certified true translation
Francie Gow, BCL, LLB
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