Date: 20120515
Docket: IMM-6927-11
Citation: 2012 FC 575
Ottawa, Ontario, May 15, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
|
|
DAVID MATUSICKY
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is the judicial review of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board (IAD) that dismissed Mr. Matusicky’s appeal of a
deportation order issued by the Immigration Division. The IAD determined that
there were insufficient humanitarian and compassionate (H&C) grounds to
warrant special relief. For the reasons that follow this application to set
aside that decision is dismissed.
BACKGROUND
[2]
Mr.
Matusicky was born on June 4, 1951 and is a citizen of the United
States.
He is also a permanent resident of Canada. He came to Canada in 1991 to
join a woman he met when working in Los Angeles. Shortly after
arriving, he started working as a truck driver and construction worker.
[3]
In
May 2006, Mr. Matusicky was arrested by the United States Department of
Homeland Security for conspiracy to smuggle/transport and harbour illegal
aliens. He was apprehended after five women, one of whom was believed by
authorities to have been seventeen years old, were smuggled from Canada into
the United
States.
According to the evidence, the applicant travelled to Seattle by plane,
rented a vehicle, met with the women who had just walked across the Canadian
border into the United States, and drove them to a motel about 5 hours
away where they were held by the group of conspirators. The plea agreement Mr.
Matusicky entered into with the U.S. authorities suggests
that he did this “[d]uring at least 2006 and continuing through on or about May
27, 2006.” At the hearing before the IAD, he admitted doing it on three
occasions. It was on the third occasion that he was apprehended.
[4]
In
October 2006, the applicant pled guilty to one count of “Conspiracy to Smuggle
and Transport Aliens” contrary to Title 8 of the United States Code
sections 1324(a)(1)(A)(i), 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(I) and
1324(a)(1)(B)(i). On August 27, 2008, the Immigration Division held that this
conviction equated to a violation of subsection 117(1) of the Immigration and Refugee
Protection Act,
SC 2001, c 27.
[5]
On
April 14, 2010, Mr. Matusicky was convicted of trafficking a controlled
substance. This conviction was the result of a police operation lasting from
December 2005 to January 2006 in which he sold cocaine to an undercover police
officer on two occasions.
[6]
The
validity of the deportation order issued by the Immigration Division was not
challenged before the IAD. Mr. Matusicky asked the IAD to use its
discretionary jurisdiction to grant him special relief. Accordingly, the IAD
considered the factors set forth in Ribic v Canada (Minister of Employment
and Immigration), [1985] IABD No 4 [Ribic] and approved by the
Supreme Court of Canada in Chieu v Canada (Minister of
Citizenship and Immigration), 2002 SCC 3.
Seriousness of the
Offence
[7]
The
IAD stated that Mr. Matusicky’s offences, especially that involving human
trafficking, were “extremely serious.” It found that he was involved in a
significant and well-organized illegal operation which carried substantial
risks to the safety of the women concerned. It noted that the operation was
discovered by authorities because one of the conspirators attempted to sexually
assault one of the women. The IAD stated that Mr. Matusicky was well aware of
the seriousness of this offence. It cited a report that said “Matusicky would
not identify the targets of the investigation for fear that his life would be
in danger…”
[8]
The
IAD held that the potentially dangerous consequences of the organization’s actions
made the offence extremely serious in the context of the Ribic factors
and that this weighed heavily against Mr. Matusicky.
Prospects of
Rehabilitation
[9]
The
IAD noted that several friends and supporters of Mr. Matusicky had submitted
letters in evidence characterizing his deeds as “poor decisions,”
“indiscretions,” and “questionable behaviour.” It also noted that several of
the letters alluded to the offences having been motivated to some degree by
difficulties arising from a failed marriage and a difficult medical condition.
On that point, the IAD wrote: “I do not agree that his offences can be
relegated either to the category of mere impropriety, or to the vicissitudes of
life’s challenges as these comments imply. By [their] inherent nature the offences
have the likelihood of grave consequences for others who are directly affected
and for society in general. That is undoubtedly why Parliament established the
severe penalties that it did.”
[10]
The
IAD stated that since the offences were the result of more than an isolated
impulse and were practiced with purpose and deliberation, the prospects of
rehabilitation were weak. The IAD further noted Mr. Matusicky’s deceitful
practices when he was being detained in the United States. He had
provided multiple and different addresses that were inconsistent, he had
submitted a false California driver’s license when he applied for a British
Columbia
license, and he had two social security cards. At the time of the charges, his
former wife and current spouse also indicated to a Pre-Trial Officer that they
did not know of his passport status in the United States, his immigration
status in Canada, or his
travels into the United States. The IAD held that these accounts cast
further doubt on Mr. Matusicky’s commitment of rehabilitation.
[11]
The
IAD summarized the submissions made in the letters of support as containing
three broad elements: (1) that he committed a single indiscretion due to poor
judgment; (2) that he is otherwise an honest person; and (3) that he is upset
over the consequences for himself and for those around him. The IAD rejected
each of these elements. It found that: (1) Mr. Matusicky was not merely
involved in a single act arising from impulse or from a rare congruence of
circumstances given that in each case he was engaged for a period of time; (2)
his conduct throughout the period when the offences occurred was the antithesis
of honesty; and (3) his concerns for his actions only went so far as they
suggest that he is repentant for himself and for his family and friends with no
mention of the victims of his offences or his community.
Establishment in Canada
[12]
The
IAD then considered Mr. Matusicky’s establishment in Canada. It noted
that he has been here since 1991, that he is involved in a spousal relationship,
that he appears to be close to certain members of his spouse’s family, and that
he has a number of supportive friends. The Board considered these to be
favourable features.
Family in Canada and best
interests of a child directly affected by the decision
[13]
The
IAD said that there is no evidence that Mr. Matusicky is employed on a
permanent basis in Canada and there would be no related deprivation if he
was removed. It also noted that he has no children and that there was no
evidence that a child would be directly affected by his removal.
Hardship on the
Applicant and Family Members
[14]
The
IAD said it was cognisant of Mr. Matusicky’s medical condition but found no
evidence to show that he would face hardship if removed to the United States.
It stated that there are social and economical links between British Columbia
and the Northwest area of the United States which render the
geographical impediment minimal. Lastly, the IAD found that Mr. Matusicky and
his family would have reasonable avenues to maintain their ties.
Conclusion
[15]
In
conclusion, the IAD stated that on the balance of probabilities there were
insufficient H&C considerations to warrant special relief.
ISSUES
[16]
Mr.
Matusicky raises two issues in this application:
1. Whether the Member erred
in law and unlawfully fettered his discretion by allowing his fixation on the
seriousness of the offences to unduly influence his opinion of the other Ribic
factors; and
2. Whether, if the Member
did not fetter his discretion, his decision was unreasonable because he failed
to consider relevant evidence supporting the applicant’s rehabilitation.
ANALYSIS
1. Fettering
of Discretion
[17]
I
agree with the applicant that the IAD cannot conclude that one’s prospects of
rehabilitation are insufficient simply because the offence(s) committed were
serious. That would be the equivalent of the decision-maker fettering his
discretion as in Sultana
v Canada (Minister of
Citizenship and Immigration), 2009 FC 533.
[18]
The
IAD can, however, look at the circumstances surrounding an offence to
establish the prospects of rehabilitation. In my view, that is what the IAD
did in the present matter.
[19]
The
IAD did not accept the evidence that the applicant committed a single act due
to impulse or a rare congruence of circumstances. At paragraph 14 it wrote:
From the evidence the appellant’s actions
in these two offences were the result of more than an isolated impulse. As the
plea agreement states, he had been engaged in the smuggling activity before
having been arrested. Also, his trafficking conviction resulted from a lengthy
undercover operation by the police. The evidence surrounding both offences
indicates that the appellant participated in them with both purpose and
deliberation. As such I do not consider that the prospects for rehabilitation
are strong.
[20]
The
fact that one participates in an offence for a length of time and with both
purpose and deliberation are valid factors to consider when it is submitted
that one acted out of impulse or a rare congruence of circumstances and will
not offend again.
[21]
Also
in evidence were letters saying that Mr. Matusicky was an honest person. It
was entirely open to the IAD to consider the circumstances of the applicant’s
crimes and those that followed his arrest as it did at paragraph 15:
There is also evidence that [the
applicant] appears to have engaged in other deceitful practices as indicated in
the proceedings of his detention hearing in the United States. According to the proceedings, he
provided multiple and different addresses that were inconsistent; he submitted
a false California driver’s license when he
applied for a British
Columbia
license; and he had two Social Security cards. The proceedings also state that
the appellant’s former wife and his girl friend indicated to the Pre-trial
Officer that they did not know of either his passport status in the United
States or his immigration status in Canada.
Further, according to the proceedings, they said that they were unaware of his
travels to the United
States.
Deceitful practices such as these validly
cast doubt on the applicant’s honesty.
[22]
In
sum, the IAD is not barred from considering the circumstances surrounding an
offence when assessing prospects of rehabilitation; that is what it did in this
instance. As such, I do not find that the IAD fettered its discretion.
2. Unreasonable
Decision
[23]
It
is submitted that the IAD failed to analyze the evidence of Mr. Matusicky’s
rehabilitation since his criminal offences. The following is a list of what
the applicant says are the critical factors that were not considered by the
IAD:
- [T]he Applicant had an exemplary civil
record, including honourable service in the U.S. Military from 1971 - 1973, for
the first 54 years of his life in the USA
and Canada;
- [T]he Member paid no regard to the
Applicant’s exemplary civil record since May, 2006, when he was released from
custody in the USA;
- [T]he Member ignored the Applicant’s
evidence that he had successfully quit using narcotics during his 120 days of
custody in the USA in 2006 and that he has abstained from using narcotics since
then; and
- [T]he Member ignored the fact that the
Applicant has contributed to his community by sharing with young people the
dangers of using drugs by holding himself and his current tenuous situation out
as an example to them of the dangerous ramifications of using drugs.
[24]
It
is submitted that Mr. Matusicky’s significant period of time without criminal
activity was one of the most important factors to consider when examining his
rehabilitation: Canada (Minister of Public Safety and Emergency
Preparedness) v. DAA, 2011 FC 124 at para 30, Brar v Canada (Minister of
Citizenship and Immigration), 2011 FC 691 at para 17 and Thamber v
Canada (Minister of Citizenship and Immigration), 2001 FCT 177 at para 17.
[25]
First,
I do not agree with the submission that the applicant “has contributed to his
community by sharing with young people the dangers of using drugs by holding
himself and his current tenuous situation out as an example to them of the
dangerous ramifications of using drugs.” The evidence before the IAD was that
the applicant had talked to only one young person about his experience and the
dangers of using drugs and this was his spouse’s nephew. Although this is a
positive factor, it is much less than “contributing to the community” in
general as the applicant would have the Court believe.
[26]
Second,
although I agree that the other factors listed by the applicant are positive
factors and favour Mr. Matusicky’s prospects of rehabilitation, I am not
persuaded that the IAD failed to consider them. There is a presumption that
the decision-maker considered all the evidence: Florea v Canada (Minister of
Employment and Immigration) (FCA), [1993] FCJ No 598. As stated in Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at para 16:
[T]he reasons given by administrative
agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and
Immigration)
(1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to
every piece of evidence that they received that is contrary to their finding,
and to explain how they dealt with it (see, for example, Hassan v. Canada
(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
That would be far too onerous a burden to impose upon administrative
decision-makers who may be struggling with a heavy case-load and inadequate
resources.
[27]
None
of the positive factors that were allegedly overlooked were so material or so
significant that one would have expected them to have been specifically
referenced by the IAD. As such, I am not convinced that the IAD failed to
consider any of relevant H&C elements, especially those that favoured the
applicant. This application must be dismissed.
[28]
No
question was proposed for certification.
[29]
At
the hearing I granted the respondent’s request, on consent, to amend the Style
of Cause to substitute The Minister of Citizenship and Immigration for The
Minister of Public Safety and Emergency Preparedness.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
Style of Cause is amended to change the respondent from THE MINISTER OF PUBLC
SAFETY AND EMERGENCY PREPAREDNESS to THE MINISTER OF CITIZENSHIP AND
IMMIGRATION; and
2.
The
application is dismissed and no question is certified.
"Russel
W. Zinn"
Email this Content