Date: 20100413
Docket: IMM-3969-09
Citation: 2010 FC 395
Ottawa, Ontario, April 13, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
VERNON VAROON VIJAYASINGHAM
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Immigration
Appeal Division (IAD) of the Immigration and Refugee Board of Canada, dated July
13, 2009, denying the applicant’s appeal against a removal order made against
him, on the basis that the order was valid and there were no sufficient
humanitarian and compassionate (H&C) considerations to revoke or
stay the removal order. These are my
reasons for determining that the application must be allowed and the matter
reconsidered by a differently constituted panel.
Background
[2]
Vernon
Varoon Vijayasingham, the applicant, is a citizen of Sri Lanka. He came to Canada and became a
permanent resident in 1993, when he was 10 years old. His parents and three
siblings all live in Canada. For the three weeks preceding his hearing
before the IAD, he had been living with his girlfriend and their daughter, then
aged a year and a half.
[3]
His
only family member in Sri Lanka is an aunt, with whom
he has not kept in touch and whose whereabouts are unknown to him.
[4]
The
applicant completed grade 11. After leaving school, he held a variety of jobs.
His longest single period of employment was 18 months. He has also
intermittently received social assistance.
[5]
Starting
in 2001, the applicant accumulated a series of criminal convictions: two for
uttering threats, two for theft, two for failure to comply with a recognizance,
one for robbery, and one of breaking and entering with the intent of committing
an indictable offence. His conviction for robbery, in 2004, led to a report
being completed against him and, ultimately, to the present proceedings. His
last conviction was entered in December 2008.
Decision Under Review
[6]
The
hearing started with the applicant requesting, and the IAD refusing, an
adjournment so that the applicant might retain counsel. The IAD noted that
while it was the applicant’s first such request, he had previously been to the
assignment court in February 2009, and was told about his right to counsel. He
now claimed that he was saving money towards the lawyer’s fee, but presented
neither any evidence of his savings nor a letter from a lawyer indicating that
he had discussed a retainer with the applicant. Therefore, the IAD was not
satisfied that he would, in fact, be in a different position by the next
hearing.
[7]
The
IAD further observed that despite having ample time to do so, the applicant
failed to make arrangements so that his family members could be present at the
hearings or provide letters of support. Again, the IAD was not satisfied that a
postponement would assist the applicant.
[8]
In
addition, the IAD noted that the applicant had known for some time that he
would not be represented on the day of his scheduled hearing, yet failed to
notify it of this problem. He also failed to raise any concerns when he
attended assignment court. The “eleventh-hour” request for an adjournment was,
in the IAD’s view, merely a delay tactic.
[9]
Finally,
the IAD was of the view that the applicant understood the nature of the
proceeding. It considered that while its consequences for the applicant were
serious, the issues were “not complex,” and the applicant was capable of
addressing them.
[10]
As
for the substance of the applicant’s appeal, the IAD noted he was not
challenging the validity of the removal order. Therefore the only issue was
whether the appeal should nevertheless be allowed on the basis of H&C
considerations, pursuant to paragraph 67(1)(c) of the IRPA. The test for
answering this question was the one developed in Ribic v. Canada (Minister of
Employment and Immigration), [1985]
I.A.B.D. No. 4 (QL), and approved by the Supreme Court in Chieu v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84. The IAD also
took note of paragraph 3(1)(h) of the IRPA, which provides that one of that
statute’s objectives is “to protect the health and safety of Canadians and to
maintain the security of Canadian society.”
[11]
The
IAD observed that the applicant refused to take full responsibility for his
conduct and diminished his guilt; that he had an anger management problem; and
that he had been verbally abusive towards his girlfriend. It also noted that
his last conviction occurred after the immigration authorities had issued a
report against him, and he must have been aware of the serious consequences
which would result from a further failure to obey the law. The IAD concluded
that the applicant “has no qualms about breaking the law when he thinks he is
justified in doing so,” and that he was not a person trying to rehabilitate
himself.
[12]
The
IAD concluded that the applicant’s removal to Sri Lanka would
inevitably cause him hardship given the time elapsed since he had left that
country. But this factor, though weighing in his favour, was not enough to
overcome his criminality and lack of rehabilitation. Furthermore, he was
“clearly not established in Canada.”
[13]
The
IAD also noted that the applicant’s family lives in Canada. Though none of
them appeared or provided a letter in his support, the IAD accepted that his
removal would cause them some hardship. It also considered, however, that they would
be able to visit him in Sri Lanka.
[14]
The
most important factor weighing in the applicant’s favour were the best
interests of his daughter to live with her two parents. However, the IAD
concluded that the hardship which the applicant’s removal would cause to his
girlfriend and daughter could be alleviated by the presence of his mother and
stepfather. There was also no reason why the applicant’s girlfriend would not
be able to work to support herself and their daughter. In addition, given the
applicant’s criminality, he was “not a good role model and it may very well be
in [his daughter’s] best interests not to live with him.” Overall, her best
interests weighed moderately in the applicant’s favour.
[15]
Finally,
on the issue of the hardship the applicant would face in Sri Lanka, the IAD took
into account his failure to raise his concerns over security there at his
admissibility hearing or to make a claim for refugee protection. Furthermore,
there was no “credible testimony in that regard,” the applicant merely claiming
that he was afraid of going back because he heard that Tamils are being
persecuted by the Sri Lankan government. The IAD concluded that although the
applicant would face some hardship in Sri Lanka, it could not outweigh his lack
of rehabilitation and establishment in Canada.
Issues
[16]
While
the applicant raises a number of issues, including an alleged breach of his
right to counsel, the issue whether it erred in its assessment of the hardship
the applicant would face in Sri Lanka is, in my view,
dispositive of this application.
Analysis
[17]
The
substance of the IAD’s decision in an appeal based on H&C considerations is
reviewable on a standard of reasonableness. (Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339) On this
standard, a decision which is justified, transparent, intelligible, and which “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” ought not to be disturbed (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[18]
The
applicant submits that the IAD erred in its appreciation of the hardship he
would suffer in Sri Lanka by concluding that it would be mitigated by his
lack of support, rehabilitation, and establishment in Canada. He argues
that this conclusion is illogical and unjustified. He adds that the IAD’s analysis
of the hardship he would be exposed to in Sri Lanka is
insufficient, and a failure to consider foreign hardship is a reviewable error
of law.
[19]
In
the respondent’s view, the IAD properly analysed the hardship the applicant
would be exposed to in Sri Lanka, taking relevant
factors into account. The applicant is dissatisfied with the
weight it gave to this factor, but that is
not a ground for this Court’s intervention. Further, the IAD’s reasons need not
be perfect, but only adequate, which they are. Its reasoning is transparent
when considered as a whole and in context.
[20]
In
Ivanov v. Canada (Minister of Citizenship and Immigration), 2007 FCA
315, [2008] 2 F.C.R. 502, at par. 11, the Federal Court of Appeal held that a “failure
to consider the Ribic factor of foreign hardship is an error of law.” While in
the present case the IAD did not altogether fail to
consider this factor, I am of the view that
its analysis on this point was so perfunctory and tainted by a consideration of
irrelevant factors as to warrant this Court’s intervention.
[21]
I
agree with the applicant that the IAD’s analysis of the hardship to which he
would be subject in Sri Lanka was confused by its reference to his lack of
rehabilitation in Canada. While rehabilitation and establishment in Canada are among the
factors which the IAD must take into account, they bear no relation to the
degree of hardship a person will suffer in a country to which he or she is
removed. A person who is not established in Canada may yet have
no ties to the country to which he or she is removed, and suffer great
difficulties there. Conversely, one may be well-established in Canada, and yet be
able to return to another country without suffering undue hardship.
[22]
The
fact that the applicant did not address the likelihood of suffering undue
hardship in Sri
Lanka
at his admissibility hearing was also not relevant. The applicant told the IAD
that he was afraid of going back to his country of nationality. This evidence
is similar to that which was held, in
Ivanov, above, to
be sufficient to trigger the IAD’s obligation to address this issue. The IAD
does not explain why it did not consider the applicant’s testimony to be
credible in this respect.
[23]
Thus,
even if the IAD did not err in law by failing to consider the foreign hardship
factor in its decision, its reasoning is not transparent and justified. Its
decision must therefore be set aside.
[24]
No
questions were proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application
for judicial review is granted and the matter is returned to the Board for
redetermination by a differently constituted panel. There are no questions to
certify.
“Richard
G. Mosley”
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