Docket:
IMM-6572-11
Citation: 2012
FC 1062
Ottawa, Ontario,
September 7, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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LIU, HUA FU
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
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Defendant
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant was ordered deported in July 2007 because he had been convicted of a
serious criminal offense. He appealed that order on humanitarian and
compassionate grounds. On November 15, 2010 the Immigration Appeal Division of
the Immigration and Refugee Board denied the appeal. This is his application
for judicial review under section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27.
[2]
For
the reasons that follow, the application is dismissed.
BACKGROUND:
[3]
The
applicant was born in Vietnam of mixed Chinese and Vietnamese ethnicity. He
was sponsored by his sister and landed in Canada from China in 1990 at the age of 16 with his parents and other siblings. The applicant married a
Canadian citizen in 2005 and they have a child born in 2002. The wife and child
live in British Columbia. He lives in Ottawa with a girlfriend and they have
two children born in 2004 and 2006.
[4]
The
applicant’s criminal history, and that of several of his siblings, began
shortly after their arrival in Canada. In police and Canada Border Security
Agency documents in the Certified Tribunal Record, the applicant is alleged to
have been a member of gangs in Ottawa and on Vancouver Island. The applicant
incurred a series of convictions between 1993 and 1995. Other charges were laid
but stayed or withdrawn between 1993 and 1999. An immigration inquiry was
initiated in 1994 but, for reasons which are unclear in the record, did not
result in a deportation order.
[5]
In
2006, the applicant was sentenced to time served (130 days) and 18 months’
probation after being convicted of unlawfully being in a dwelling house and
assault. As a result he was ordered deported pursuant to section 36(1) (a) of
the Act on July 25, 2007. He appealed that decision to the Immigration Appeal
Division (the “Board”).
[6]
The
first hearing date in 2008 was adjourned when the applicant filed additional
materials after the deadline for doing so. It was rescheduled for June 2009 but
adjourned again when the applicant’s counsel removed himself from the record
and new counsel was retained. The appeal hearing was rescheduled for October 19
and 20, 2010.
[7]
While
on immigration bail, the applicant was charged with robbery and extortion with
a firearm. Those charges were withdrawn when the applicant pleaded guilty in
March 2010 to possession of stolen property for which he received time served
and a suspended sentence.
[8]
On
July 29, 2010, the applicant’s counsel wrote to the Board to inform it that he
had been unable to obtain instructions from the applicant in the previous 10
months and that he must therefore remove himself from the record. Counsel
confirmed that he had advised the applicant of the hearing scheduled for the
following October. Despite several attempts, a case management officer from the
Board was unable to reach the applicant to advise him to bring his appeal
record to the hearing and to verify whether he had new counsel.
[9]
The
applicant came to the hearing as scheduled. On the first day, he stated that he
did not have a lawyer because he could not afford one, and he asked the Board
to recommend someone, which it declined to do. The applicant then stated that
he was ready to proceed with the hearing. He did not have his appeal record.
After some discussion, it was decided that, where necessary, the Minister’s
representative would show him documents from her copy of the appeal record. The
first day of the hearing proceeded and the Board told the applicant to bring
his appeal record the next day.
[10]
When
the hearing resumed the next day, the applicant still did not have his full
appeal record. He asked for an adjournment to allow him to retain counsel. The
Board rejected this request in light of the previous adjournments, its view
that the matter was straightforward, and the ample notice provided to the
applicant after previous counsel withdrew. The hearing resumed with the
applicant representing himself.
DECISION UNDER REVIEW:
[11]
The
Board’s decision was rendered on November 15, 2010. At the outset, the Board
reiterated the reasons that had been stated at the hearing when the adjournment
request was denied, relying on Mervilus v Canada (Minister of Citizenship
and Immigration), 2004 FC 1206.
[12]
Dealing
with the merits of the appeal, the Board considered the factors
affirmed in Chieu v Canada (Minister of Citizenship and Immigration),
2002 SCC 3, and reviewed the applicant's testimony relevant to each factor. The
Board found the applicant's testimony not to be credible and that he had not
accepted responsibility for his actions. The Board gave the most weight to the
seriousness of the offense and the lack of evidence of rehabilitation.
[13]
The
Board found that the evidence of the applicant’s establishment in Canada was weak notwithstanding his 21 years in Canada as of the time of the decision. This finding
was based on his irregular work history, lack of assets, and lack of close
contact with family members who are in Canada and failure to become a citizen.
It was noted that the applicant has a brother in China and speaks Cantonese
which would lessen the hardship that his relocation to China would cause.
[14]
The
Board considered the impact that the applicant's deportation would have on his
children but noted that they are in the care of their mothers, both of whom are
employed. He concluded that the children’s best interests would be served
because they would remain in Canada in their mothers’ care.
ISSUES:
[15]
The
issues raised in this application are as follows:
a. Was the
applicant denied procedural fairness?
b. Is the Board’s
decision on the merits of the appeal reasonable?
ANALYSIS:
Standard of
Review:
[16]
Where
procedural fairness is in question, as here, the proper approach is to ask
whether the requirements of natural justice in the particular circumstances of
the case have been met: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43.
[17]
The
Board’s decisions about whether humanitarian and compassionate considerations
warrant relief on appeal from a deportation order are reviewable on the reasonableness
standard: Khan v Canada (Minister of Citizenship and Immigration), 2009
FC 762 at para 21.
Was the applicant denied
procedural fairness?
[18]
The
applicant submits that he was not afforded due process because his adjournment
request was denied.
Because he did not have counsel at the hearing, counsel argues, “many relevant
questions militating for the applicant could not be raised.” He contends
further that the Board had a duty to assist him and that the Board should have
called the two witnesses listed by previous counsel in December 3, 2008: his
wife and girlfriend. Because these witnesses were not called, the applicant
argues, significant evidence of his establishment in Canada was not before the
Board.
[19]
The
Board had no obligation to call witnesses for the applicant even if the
witnesses were listed by his prior counsel. Although the applicant stated that
he did not know his girlfriend could have attended the hearing, he was asked on
the first day of the hearing whether he would be calling any witnesses and his
answer was no. Even when he indicated that he had not realized she could
attend, he does not mention having her testify but rather talks about how he
would have liked to have her there to support him. As the applicant’s wife
lived in British Columbia, she was not available as a witness.
[20]
The
applicant had several months’ notice that his counsel had withdrawn, but he did
not retain new counsel by the date of the hearing nor did he seek legal aid.
The applicant’s explanation to the Board that he did not seek legal aid because
he does not believe that lawyers who work for free are competent was
unreasonable given the issues at stake. The right to counsel is not absolute: Yanez
Tecuapetla v Canada (Minister of Citizenship and Immigration), 2012 FC
225 at para 25.
[21]
The
applicant’s education is limited, but that does not excuse his effective lack
of participation in the proceedings, as demonstrated by his failure to inform
the Board that his phone number had changed and the fact that he did not bring
his copies of the appeal record to the hearing. His prior counsel withdrew
because of the applicant’s failure to instruct him.
[22]
The
applicant agreed to proceed on the first day of the hearing without counsel.
Given that the matter had already been delayed more than three years and that a
full day of the hearing had already transpired, the Board did not breach
procedural fairness by proceeding with the rest of the hearing.
[23]
At
paragraph 25 of Mervilus, above, cited by the Board, the Court held the
following:
[A]lthough
the right to counsel is not absolute in an administrative proceeding, refusing
an individual the possibility to retain counsel by not allowing a postponement
is reviewable if the following factors are in play: the case is complex, the
consequences of the decision are serious, the individual does not have the
resources - whether in terms of intellect or legal knowledge - to properly
represent his interests.
[24]
Here,
the matter was straightforward and, although the consequences serious in that
the applicant faces deportation, no evidence of hardship he would face by
having to relocate to China was presented. As set out above, the applicant was
in a position to properly represent his interests and to the extent that he did
not do so, it was of his own doing. The Board adapted its usual procedure
because the applicant was representing himself, and he was given the
opportunity to call witnesses and to make submissions. The applicant had the
chance to put forward any other evidence or raise any other issues not raised
in the hearing, and he cannot now complain that the Board did not have all of
the information when he had the opportunity to put that information forward.
[25]
Counsel
for the applicant has also suggested that the Board member disclosed bias by a
reference in the decision to the applicant’s “lengthy record…a total of 150
pages”. He contends that the only conviction that is relevant is that leading
to the deportation order.
[26]
I
agree that for the purposes of determining whether the deportation order was
validly issued under paragraph 36 (1) (a) of the Act, the only relevant
conviction is that for the predicate offence which is the basis for the order.
However, in considering whether there are humanitarian and compassionate
grounds to grant relief from the deportation order the applicant’s entire
criminal history is relevant. In this matter, the Board had before it a lengthy
dossier concerning the applicant compiled by the police and the CBSA over two
decades. In my view, it was entirely reasonable for the Board to have made
reference to it.
[27]
I
am satisfied that the Board did not breach its duty of procedural fairness to
the applicant and that there is no basis for a finding of a reasonable
apprehension of bias.
Is the Board’s
decision on the merits of the appeal reasonable?
[28]
The
applicant submits that the Board erred in assessing the humanitarian and
compassionate factors in favour of a stay of his deportation. He contends that
the Board did not properly consider the factors identified in Chieu,
above. Regarding the seriousness of his offence, he suggests several questions
that could have been asked and states that they are unanswered. On the
possibility of rehabilitation, he raises arguments regarding dependence on
alcohol or drugs or anger management issues.
[29]
In
terms of his establishment, the applicant notes that he has not left Canada since his arrival in 1990 and has never been on social assistance. He submits that
the Board failed to consider the hardship he would face returning to China after leaving more than 20 years ago and given that he is not in touch with his brother who
lives there following deportation from Canada.
[30]
Finally,
the applicant submits that the Board failed to fully consider his children’s
best interests. In particular, he notes that the Board did not mention the
handwritten schedule provided two years earlier that showed how he and his wife
take turns caring for their autistic son. He also argues that the Board failed
to ask how he supports his other two children both emotionally and financially.
[31]
I
note that by the time this matter came on for hearing before the Board the wife
and autistic son had returned to British Columbia and there was no indication
that the applicant continued to be involved in his son’s care. The Board did
not err by failing to refer to evidence that was two years old at the time of
the hearing and was no longer accurate.
[32]
With
regard to the two other children, the applicant has failed to demonstrate that
the Board did not adequately consider their interests. Although the applicant
said that he is somewhat involved in caring for them, he did not provide any
evidence – at any point since the appeal was initiated – to this effect,
despite his prior counsel having entered into the record several pictures of
him, his wife, and their child. Given the total lack of evidence about the
other two children, the Board cannot be faulted for concluding that the
children’s interests did not warrant a stay.
[33]
Nor
did the Board err in considering the Chieu factors. The applicant has a
lengthy criminal record dating back to within a few years of his arrival in Canada. He has repeatedly been charged with extortion and uttering threats. At least one of
his charges allegedly involved a firearm. While awaiting a hearing on his
appeal from the deportation order he was charged with additional offences and
pleaded guilty to one. Although the 2006 conviction that led to the deportation
order was not a violent offence, the police records indicate that there were
children present and that the applicant repeatedly threatened to “kill
everyone” and implied that he was in possession of a firearm.
[34]
The
applicant’s criminal history is relevant to the prospect of rehabilitation.
When he was questioned about this record at the hearing, he insisted that the
charges were falsified, that the victims had since apologized to him for having
contacted the police, that a police officer was out to get him, or that the
Minister’s counsel had falsified the police records. Given his complete failure
to take responsibility for his actions, the Board’s finding that there was no
possibility of rehabilitation is entirely reasonable.
[35]
The
applicant did not put forward any evidence that he faces hardship if he must
return to China other than the assertion that he was no longer familiar with
the country having lived here for over two decades and only minimal evidence of
his involvement in his children’s lives. The applicant bore the burden of
establishing that humanitarian and compassionate grounds warranted a stay of
his deportation and he simply failed to do so.
[36]
The
application is dismissed. No questions for certification were proposed.
JUDGMENT
THIS COURT’S
JUDGMENT is that
the application for judicial review is dismissed. No questions are certified.
“Richard G. Mosley”
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