Date: 20091030
Docket: IMM-1677-09
Citation: 2009 FC 1097
Ottawa, Ontario, October
30, 2009
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
THE MINISTER
OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Applicant
and
OSCAR BLADIMIR MENDOZA REYES
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Immigration Appeal Division (the IAD) of the Immigration and Refugee Board pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The
Minister of Public Safety and Emergency Preparedness (the Minister) is
challenging the IAD’s decision dated on or about March 20, 2009, to grant a
stay of the removal order against Oscar Bladimir Mendoza Reyes (the respondent).
* * * * * * * *
[2]
The
respondent is a Salvadoran citizen. He arrived in Canada in 1994 at
the age of ten.
[3]
He
was convicted of assault with a weapon and mischief before the Court of Québec
Youth Division on February 18, 2002. He was convicted of theft under $5,000
before an adult court on June 5, 2002. He was convicted of failure to
comply with an undertaking and failure to comply with a decision by the Court
of Québec Youth Division on July 11, 2002. He was convicted of possession of a
weapon for a dangerous purpose on May 1, 2003.
[4]
After
this last conviction, an inadmissibility report was prepared under section 44 of
the Act and a removal order was issued against the respondent on July 23, 2003,
under paragraph 36(1)(a) of the Act. The respondent appealed this
decision, citing humanitarian and compassionate grounds. In the meantime, he
was convicted of breaching probation and violating an undertaking in June 2004,
and again in November of the same year.
[5]
However,
on December 9, 2004, the IAD granted him a stay of the removal order for a
period of four years on the joint recommendation of the respondent’s counsel
and the Minister’s counsel. This stay was subject to conditions, including that
of not committing any criminal offences.
[6]
The
respondent pleaded guilty to a charge of simple possession of cocaine in
December 2005. The Minister then requested a review of the stay.
[7]
The
stay was reviewed on March 16, 2006. The IAD upheld the stay term and
conditions. In fact, the respondent had not been informed of the fact that the
charge of simple possession of cocaine had not been set aside by a guilty plea for
breach of conditions in June 2004. Once he was informed of his actual
situation, he informed the Minister of this and pleaded guilty. The IAD
therefore considered that there had not been a breach of the conditions imposed
on his stay. Furthermore, it took into account the fact that the respondent had
held a stable job and had even been promoted by his employer, his stable family
situation, and the fact that he was taking secondary education part time and
therapy for his previous alcohol problems.
[8]
The
respondent was accused of impaired driving and refusal to provide a breath
sample in May 2008.
[9]
He
failed to report to immigration authorities, in accordance with the conditions
imposed on his stay, in June 2008 and in December of the same year.
[10] The respondent
was convicted of assault and theft in October 2008.
* * * * * * *
*
[11] The decision
the Minister is now requesting be reviewed is the final review of the stay
granted to the respondent in 2004. Scheduled for December 9, 2008, it finally
took place on March 17, 2009. It is important to note that the
decision was delivered orally.
[12] The IAD
stated that “[e]verything seemed to be going well between 2004 and 2007”, but
that after the respondent’s breakup with his girlfriend, his problems started
again. The panel considered the fact that the respondent had only “one
conviction out of a number of charges against you,” as well as the support of
his family.
[13] The IAD noted
that the offences the respondent committed or allegedly committed in 2007 and
2008 were not as serious as the one that was followed by the removal order
issued in 2003, but recalled that a crucial stay condition was that the
respondent not commit any offence, regardless of its seriousness. The panel
also stated that it was concerned about the impaired driving charge and the
respondent’s lies regarding his alcohol consumption.
[14] The panel,
nevertheless, rejected the application to cancel the stay presented by the
Minister and instead extended the stay until March 17, 2011, with a provisional
reconsideration to be held on or around March 17, 2010.
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[15] The following
provisions of the Act are relevant in this case:
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3. (1) The objectives of this Act with
respect to immigration are:
(h) to protect the health and safety of
Canadians and to maintain the security of Canadian society;
(i) to promote international justice and
security by fostering respect for human rights and by denying access to Canadian
territory to persons who are criminals or security risks;
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3. (1) En matière
d’immigration, la présente loi a pour objet :
h) de protéger la santé des Canadiens et
de garantir leur sécurité;
i) de promouvoir, à l’échelle
internationale, la justice et la sécurité par le respect des droits de la
personne et l’interdiction de territoire aux personnes qui sont des criminels
ou constituent un danger pour la sécurité;
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36. (1) A permanent resident or a foreign
national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act
of Parliament punishable by a maximum term of imprisonment of at least 10
years, or of an offence under an Act of Parliament for which a term of
imprisonment of more than six months has been imposed;
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36. (1) Emportent interdiction
de territoire pour grande criminalité les faits suivants :
a) être déclaré coupable au Canada d’une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans ou d’une infraction à une loi fédérale pour laquelle un
emprisonnement de plus de six mois est infligé;
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44. (1) An officer who is of
the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare
a report setting out the relevant facts, which report shall be transmitted to
the Minister.
(2) If the Minister is of
the opinion that the report is well-founded, the Minister may refer the
report to the Immigration Division for an admissibility hearing, except in
the case of a permanent resident who is inadmissible solely on the grounds
that they have failed to comply with the residency obligation under section
28 and except, in the circumstances prescribed by the regulations, in the
case of a foreign national. In those cases, the Minister may make a removal
order.
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44. (1) S’il estime que le
résident permanent ou l’étranger qui se trouve au Canada est interdit de
territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au
ministre.
(2) S’il estime le rapport
bien fondé, le ministre peut déférer l’affaire à la Section de l’immigration
pour enquête, sauf s’il s’agit d’un résident permanent interdit de territoire
pour le seul motif qu’il n’a pas respecté l’obligation de résidence ou, dans
les circonstances visées par les règlements, d’un étranger; il peut alors
prendre une mesure de renvoi.
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45. The
Immigration Division, at the conclusion of an admissibility hearing, shall
make one of the following decisions:
(d) make the applicable removal order
against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the
foreign national is not inadmissible, or against a foreign national who has
been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign
national or the permanent resident is inadmissible.
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45. Après
avoir procédé à une enquête, la Section de l’immigration rend telle des
décisions suivantes :
d) prendre la mesure de renvoi applicable
contre l’étranger non autorisé à entrer au Canada et dont il n’est pas prouvé
qu’il n’est pas interdit de territoire, ou contre l’étranger autorisé à y
entrer ou le résident permanent sur preuve qu’il est interdit de territoire.
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63. (3) A permanent resident or
a protected person may appeal to the Immigration Appeal Division against a
decision at an examination or admissibility hearing to make a removal order
against them.
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63. (3) Le résident permanent ou
la personne protégée peut interjeter appel de la mesure de renvoi prise au
contrôle ou à l’enquête.
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68. (1) To stay a removal order,
the Immigration Appeal Division must be satisfied, taking into account the
best interests of a child directly affected by the decision, that sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
(2) Where the Immigration
Appeal Division stays the removal order
(a) it shall impose any
condition that is prescribed and may impose any condition that it considers
necessary;
(b) all conditions imposed by
the Immigration Division are cancelled;
(c) it may vary or cancel any
non-prescribed condition imposed under paragraph (a); and
(d) it may cancel the stay, on
application or on its own initiative.
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68. (1) Il est sursis à la
mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt supérieur de
l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu
les autres circonstances de l’affaire, la prise de mesures spéciales.
(2) La section impose les
conditions prévues par règlement et celles qu’elle estime indiquées, celles
imposées par la Section de l’immigration étant alors annulées; les conditions
non réglementaires peuvent être modifiées ou levées; le sursis est révocable
d’office ou sur demande.
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* * * * * * *
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[16]
Relying
on Ivanov v. Canada (Minister
of Citizenship and Immigration), [2008] 2 F.C.R. 502 (F.C.A.), the Minister maintains that the factors
set out by the IAD in Ribic v. Canada (Minister
of Employment and Immigration), [1985] 1 I.A.B.D. No. 4 (QL), apply to the granting of a stay and to
the subsequent review of it.
[17] These factors,
summarized by the Federal Court of Appeal at paragraph 3 of Ivanov, are as
follows:
·
the
seriousness of the offence or offences leading to the deportation and the
possibility of rehabilitation;
·
the
circumstances surrounding the failure to meet the conditions of admission which
led to the deportation order;
·
the length
of time spent in Canada and the degree to which the
applicant is established;
·
the
existence of family in Canada and the dislocation to that
family that deportation of the applicant would cause;
·
the
support available for the applicant not only within the family but also within
the community;
·
the degree
of hardship that would be caused to the applicant by his return to his country
of nationality (this factor is sometimes referred to as “foreign hardship”.
[18] According to
the Minister, the IAD [translation]
“completely disregarded” these factors. The Minister maintains that the failure
to specifically mention these factors is an error open to review by this Court.
In this regard, he cites this Court’s decision in Canada (Minister of Citizenship and
Immigration) v. Stephenson, [2008] 4 F.C.R. 351, in
which Justice Eleanor Dawson wrote the following at paragraph 32:
From the failure of the IAD to
specifically mention the Ribic factors or to consider the matters
discussed above, at paragraph 30, and from the absence of evidence before the
IAD concerning the continuing existence of humanitarian and compassionate
factors, . . . the IAD erred in law by failing to consider all of the
circumstances of the case when it exercised its discretion. . . .
[19] According to
the Minister, the panel not only failed to mention the Ribic factors,
but also completely failed to consider them in its decision.
[20] In this
proceeding, it is not necessary to decide whether the panel must absolutely
reiterate the Ribic factors in its decision. It is, at the very least,
arguable whether requiring it would not demonstrate unjustified formalism with
respect to an administrative tribunal. The important thing is that the panel actually
take these factors into account in its decision.
[21] In the case
at bar, the IAD took some of these factors into account, in particular, the
seriousness of the offences committed by the respondent and the respondent’s
family situation.
[22] Furthermore, I
am of the opinion that the Minister’s argument, which is that the mere fact of
not mentioning foreign hardships is enough to invalidate the panel’s decision,
is not justified when the panel is deciding, on the basis of all of the other
factors, to grant a stay. Analyzing this last factor thus becomes irrelevant,
and invalidating decisions by the IAD on this basis would be absurd. In Ivanov,
above, the IAD decided on the respondent’s removal without analyzing the
difficulties with which he would be confronted upon his return to his country
of nationality.
[23] However, it
is true, as the Minister maintains, that the IAD overlooked certain other
factors. In particular, it overlooked the respondent’s chances of
rehabilitation and the degree to which he is established in Canada.
[24] The Minister
submits that the IAD [translation]
“completely disregarded the evidence” and that its findings were contrary to
this evidence and to the testimony it heard.
[25] The Minister
challenges what he considers to be the IAD’s [translation]
“finding” regarding the respondent’s missed appointments.
[26] The Minister claims
that the panel failed to take into account the fact that the respondent [translation] “committed five violent
criminal offences as well as several breaches of conditions”, the seriousness
of which the panel should also have recognized. Furthermore, according to the Minister,
the respondent did not explain or mitigate the offences he committed, and the
panel therefore had no reason to give him another chance.
[27] The Minister
also claims that the IAD [translation]
“clearly underestimated the seriousness of the alcohol consumption problem” of
the respondent, a problem to which the respondent’s family allegedly
contributed [translation] “consent
and concurrence”. The Minister notes that the panel acknowledged that the
respondent lied with respect to his alcohol consumption.
[28] Finally, the
Minister maintains that the IAD disregarded Nathalie Bélanger’s statutory
declaration (Exhibit P of Hélène Exantus’s affidavit, Applicant’s Record, at
page 100), which states that the respondent failed to inform immigration
authorities of the fact that criminal charges (impaired driving, refusal to
provide a breath sample, theft and assault) had been brought against him.
[29] In
conclusion, the Minister refers to Justice Michael Phelan who, in Canada (Minister of Public Safety and Emergency Preparedness) v. Udo, 79 Imm. L.R. (3d) 303, at paragraph 17, wrote
the following:
Against this background, to grant a
further stay is tantamount to condoning Mr. Udo’s past criminal record and his
continuing disregard for his obligation to comply with the conditions of
immigration orders. To support this IAD decision would be to make a mockery of
the legitimate and law abiding behaviour of the rest of Canadian society,
including the deserving immigrant community.
[30] The findings made
by the IAD in applying—even if only implicitly—the Ribic factors, above,
are findings of fact. They are only reviewable if unreasonable. The IAD’s
decision must be justified in a transparent and intelligible manner and fall
within a range of “possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, at paragraph 47).
[31] In this case,
the IAD’s decision is not very transparent or intelligible. It is not at all
clear why, while it acknowledged the seriousness of the offences committed by
the respondent and the charges brought against him (even if they were obviously
not “five violent criminal offences”), the respondent’s lack of justification for
the breaches of the conditions and the persistence of his alcohol problem, the
panel still decided to continue the stay. If the panel had explained what
mitigating factors had, in its mind, counterbalanced these overwhelming
circumstances, it would not be up to the Court to substitute its assessment for
that of the panel. However, the panel did not do this. Its decision will therefore
not be considered reasonable and must be set aside.
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[32] For all of
these reasons, the application for judicial review is
allowed and the matter is referred back to a differently constituted panel of
the Immigration Appeal Division of the Immigration and Refugee Board for a new review of the respondent’s stay.
JUDGMENT
The
application for judicial review of the decision delivered on or about March 20,
2009, by the Immigration Appeal Division (the IAD) of the Immigration and Refugee Board is allowed. The matter is referred back to a differently constituted panel
of the IAD for a new review of the respondent’s stay.
“Yvon
Pinard”
Certified
true translation,
Janine
Anderson, Translator
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